How NOT to Crack Down on White Collar Criminals

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The strategy adopted by the Department of Justice last year to step up prosecution of white-collar criminals has been ineffective so far, and won’t make much of a difference as long as deferred prosecution and non-prosecution agreements for defendants continue, argues the author of a paper forthcoming in the Boston College Law Review.

“The failure of the Department of Justice (DOJ) to prosecute the individuals responsible for the crimes that led to the financial collapse is not just a well-publicized anomaly. Rather, it is part of a trend of declining federal prosecutions of white collar crime that started at least as early as 2008.” writes author Chris Modlish.

“This decline in prosecution of white collar crime is doing more than just angering ordinary Americans who feel as though the system is fixed in favor of the wealthy and powerful. It is also worrying legal analysts who believe that the lack of individual prosecution of corporate crime will make future abuses more likely.”

Modlish critiques a 2015 memo by Sally Quillan Yates, Deputy Attorney General of the United States, which identified six policies that would enable the DOJ to prosecute corporate misconduct, but did not specifically address deferred prosecution and non-prosecution agreements.  He offers a set of additional policy prescriptions that he argues would “effectively deter future corporate criminal activity, uphold the rule of law, and restore confidence in the DOJ’s ability to combat corporate criminal misconduct.”

Read the paper here.


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