Title: The Pendulum Swings: Reconsidering Corporate Criminal Prosecution
Abstract: Corporate crime continues to occur at an alarming rate, yet disagreement persists among scholars and practitioners about the role of corporate criminal prosecution. Some argue that corporations should face criminal prosecution for their misconduct, while others would reserve criminal prosecution for individual corporate officials. Perhaps as a result of this conflict, there has been a dramatic increase over the last decade in the use of deferred prosecution and non-prosecution agreements for some corporate crimes, even as the government continues to bring criminal charges for other corporate crimes. To move beyond our erratic approach to corporate crime, we need a better understanding of what is accomplished by the criminal prosecution of corporations, a construct that considers retributive and utilitarian theories but also takes into account the expressive function of criminal law and the societal need for condemnation, accountability, and justice when crime occurs.