Reply to Bob Litt

Thanks to

Bob Litt

for correcting the error in my earlier


.  I don’t agree with him, however, that you can’t deter corporations by threatening to punish them.  True, they are artificial entities, but they are controlled by managers, who can spend more or fewer resources to screen out employees who are likely to commit crimes, and to monitor employees so that any criminal activity can be detected before it causes too much harm.  Whatever the weaknesses of shareholder control, it remains true that managers suffer when their firms do badly.  What does seem to be case is that criminal liability has excessively bad consequences for many corporations, which can’t and won’t expend infinite resources to prevent their employees from committing crimes, so that the costs are just passed on to consumers.   Ordinary civil liability for torts committed by employees, which, unlike criminal prosecution of corporations, is extremely common, is premised on the reasonable assumption that corporations will take steps to avoid legal liability.

So the question raised by the Times article is just whether the increasing use of DPAs, in lieu of plea agreements (not, as I was trying to explain, in lieu of trials, as the Times said), represents good policy.  Everything depends on the terms of the deals, and whether the monitors effectively ensure that they are carried out.  If the strictness of the deal is reasonable in light of the seriousness of the criminal activity, then they will clearly be an improvement over criminal prosecution or plea agreements, for the reasons given by Bob Litt.  Also as he notes, they could be too strict, the result of corporations agreeing to anything in order to avoid the destructive effects of a conviction.  Unfortunately, the Times article sheds no light on these questions.