The U.S. Department of Justice has been heavily criticized for failing to prosecute bank executives. Prosecutors, the critics say, favor headline-grabbing yet toothless corporate guilty pleas, deferred prosecution agreements or civil settlements, while letting the real bad guys get away scot-free.
Understanding why prosecutors charge companies — and why they don’t charge individuals (when they don’t) — is vitally important. Most critics assume that the DOJ lets companies pay a fine (which comes from shareholders’ pockets) in return for giving executives a pass. But that is not the only, or the best, explanation. While there are any number of other reasons why executives aren’t prosecuted more often, one question deserves attention: Can a corporation commit a crime, even though none of its employees did?
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