Time to start prosecuting corporate crime to the max
By Phil Mattera for the Dirt
Diggers Digest
Corporate America’s embrace of
voting rights, racial justice and other social causes is laudable, but it is
also designed to make us forget how much the private sector profited from the
retrograde policies of the Trump Administration. This was not just a matter of
the business tax cuts.
Illustration by John Cuneo
Thanks to deregulation and weakened enforcement, big business was able to operate with a much higher level of impunity.
The latest evidence of this comes in a new report from Public Citizen
documenting the declining volume of prosecutions of corporate crime during the
Trump years.
Using data from the U.S. Sentencing
Commission, Public Citizen finds that the number of federal prosecutions of
corporate criminals fell to a new low of just 94 in fiscal year 2020. This was
a drop of 20 percent from the year before, a plunge of two-thirds from the peak
of 296 in 2000, and the lowest on record since the Commission started releasing
corporate prosecution statistics in 1996.
While adopting a lackluster approach
to prosecutions, the Justice Department was more inclined to offer rogue
corporations leniency agreements. Employing data from the Corporate
Prosecution Registry, Public Citizen points out that DOJ
substantially increased its use of deferred prosecution and non-prosecution
agreements in FY2020.
Connecting the two trends, Public
Citizen finds that the leniency agreements amounted to 32 percent of the total
of all cases against corporations, a record amount.
The report dispels any suggestion
that declining prosecutions and increasing leniency agreements are signs that
Corporate America has become better at obeying the law: “On the contrary, they
are signs that, despite Trump’s ‘law and order’ rhetoric and his
administration’s brutal crackdowns on immigrants, racial justice protestors and
low-level offenders, the administration went out of its way to avoid
prosecuting corporate criminals. The result is the creation of an environment
of corporate impunity.”
The Public Citizen report focuses on criminal cases, but there were similar trends in civil enforcement. For example, the data in Violation Tracker shows that the DOJ’s civil division, which handles matters such as False Claims Act cases against rogue federal contractors, announced only 44 corporate pleas and settlements in 2019, down from 137 announced by the Obama DOJ in 2015.
Fortunately, these findings are now
mainly a matter of historical interest. The current question is how things will
change under the Biden Administration. Since Merrick Garland has been attorney
general for a short time, it is too soon to reach any clear conclusions.
It is widely expected that DOJ will
be taking a more aggressive stance. One major law firm advised its clients that white collar
enforcement activity will “substantially increase,” adding: “Not only will the
government take a more aggressive posture, but the proliferation of
whistleblower programs and the creation of new enforcement tools means that prosecutors
will be armed with more information and resources than ever. Companies should
remain vigilant as risks shift and consider taking steps to ensure they adapt
their compliance programs and controls accordingly.”
When corporations are made to feel
they need to be more careful, we humans can breathe a bit easier.