This chapter focuses on the role of individual prosecutions in corporate actions. In only about one-third of those federal deferred or non-prosecution agreements with organizations, including some of the highest profile corporate criminal cases of recent years, were any officers or employees prosecuted. What explains this pattern? This chapter proceeds as follows. Section 2 describes the HSBC case, introducing practical and procedural obstacles that arise in cases involving both organizations and employees. Section 3 describes data on individual prosecutions in corporate cases. It further explores why prosecutors so frequently do not or cannot prosecute individuals in corporate cases, why they so often achieve limited success when they do. The chapter concludes by describing alternative means to deter individual behavior and what significance this has for the approach to corporate prosecutions more generally.
Brandon L. Garrett
All systems of capital punishment have been haunted by wrongful convictions and executions of the innocent. Whether it is a sophisticated DNA test proving innocence beyond all reasonable doubt, or a case in which the supposedly-murdered victim reappears very much alive and unharmed, errors have occurred in capital cases as long as there have been capital cases. The innocence movement and growing awareness of the causes and cures for wrongful convictions have, in the past few decades, sharpened the arguments against using the death penalty and encouraged death penalty proponents to try to narrow its use to cases with more accurate evidence. In turn, the errors brought to light in high-profile death penalty cases have encouraged broader efforts to reform criminal justice. As innocence-related litigation and research have gone global, more jurisdictions are considering the implications of wrongful convictions and executions. This Chapter describes emerging awareness and study of wrongful convictions in the United States and then in several other countries, including China, Taiwan and India. The Chapter then turns to research exploring the causes of those wrongful convictions and reforms that have flowed from that research.
Brandon L. Garrett
In the United States, anti-corruption cases brought under the Foreign Corrupt Practices Act (“FCPA”) against corporations dramatically increased in size and in number. Federal prosecutors began to advertise how they target foreign companies, highlighting as a special priority the ambitious enforcement goal to “root out global corruption.” Settlements have dominated the enforcement approach in the United States, largely without judicial review, but instead almost entirely through negotiation between corporations and prosecutors and regulators. As described in this chapter, FCPA enforcement, in terms of numbers of cases, increased in the 2000s and peaked in 2010. Total penalties, however, peaked again in 2016, as the numbers of cases brought by the DOJ declined. The expanded use of the FCPA relied, from the outset, on settlements with corporations. Initially, there was a broad divergence in the outcomes in FCPA prosecutions. The DOJ responded with an effort to provide more detailed information to the bar concerning FCPA enforcement and devised a pilot approach intended to more systematically guide the content of settlements. Whether that effort has been successful is hard to assess. The arc of FCPA prosecutions in the United States, however, suggests the many challenges of adopting a clear and principled approach towards settlements, which necessarily involve compromise in complex and uncertain circumstances. In recent years, more U.S. FCPA cases have resulted in declinations, while other countries have adopted settlement-oriented approaches towards foreign bribery enforcement. It may be that foreign bribery enforcement will proceed in a more multilateral fashion, with more enforcement outside the United States. The chapter concludes by discussing how the U.S. approach has influenced new settlement programs, but how other countries have adopted approaches less deferential to prosecutors, with a greater degree of judicial oversight and public information concerning the process.