Corporate criminal enforcement in the United States differs from other countries in three ways. First, the United States can impose criminal liability on corporations in a broader range of cases than other countries. Second, almost all corporate criminal resolutions involving large firms take the form of negotiated settlements. Third, the United States grants prosecutors both more choices and more discretion when resolving criminal cases: prosecutors can enter into guilty pleas or pre-trial diversion agreements (deferred and non-prosecution agreements). This chapter shows how granting prosecutors discretion to negotiate criminal settlements and use these alternative forms of criminal resolution can help governments deter corporate crime by inducing corporations to self-report and cooperate. It also identifies what features are needed in order for such a regime to promote deterrence. Finally, it identifies problems with the current U.S. approach that other countries considering employing such measures would do well to avoid.
Arlen, Jennifer, Corporate Criminal Enforcement in the United States: Using Negotiated Settlements to Turn Potential Corporate Criminals into Corporate Cops (April 1, 2017). NYU School of Law, Public Law Research Paper No. 17-12; NYU Law and Economics Research Paper No. 17-09. Available at SSRN: https://ssrn.com/abstract=2951972