Corporate crime is too often addressed by fining the corporation, while the real people who committed the crime face no consequence at all. This failure to hold individuals accountable in cases of corporate malfeasance generates an accountability gap that undermines deterrence and introduces expressive costs. Facing heightened criticism of this trend, then-Deputy Attorney General Sally Yates issued a policy designed to generate prosecutions of real people in cases of corporate wrongdoing. The policy reflects a strong and continuing demand for more prosecutions of individuals in the corporate context.
This Article contends that the effort to introduce accountability by increasing prosecutions against individuals, while understandable and responsive to a real problem, is bound to fail in two distinct ways. First, it will fail as a procedural matter by systematically punishing lower-level corporate employees. Second, it will fail as a normative matter by systematically punishing based on overbroad and unclear laws.
Identifying these procedural and normative failings lends new clarity to the nature of the accountability gap. The popular anger toward corporate management is often predicated on blame for recklessness and greed, rather than blame for violating positive law. As such, the anger is neither irrational nor inconsequential, but it is directed toward a kind of culpability that is a poor fit for criminal law. The accountability gap must to be addressed, but in most instances of corporate misconduct, civil liability represents the best mechanism for holding people accountable.
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