Corporate Criminal Liability: Toward a Compliance-Orientated Approach

ABSTRACT:Under U.S. federal law, a corporation can be held criminally liable for the crimes of its employees and agents. The Department of Justice's U.S. Attorneys' Manual lays out a list of factors prosecutors can evaluate when deciding whether or not to prosecute a corporate entity. The Department of Justice (DOJ) prosecutors have various tools at their disposal, including deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs) as alternatives to going to trial. Prosecutors have used DPAs and NPAs in recent cases, allowing the government to ensure that corporate entities comply with investigations, enact compliance programs, and continue to follow laws and regulations. The use of DPAs and NPAs are on the rise, and these agreements are now used in cases concerning the Foreign Corrupt Practices Act (FCPA) and the U.S. Commodity Future Trading Commission (CFTC). Comments from the Trump Administration suggest that these agreements will continue to be used to deter corporate criminal misconduct. Many Latin American countries have recently enacted laws to impose corporate criminal liability and use some type of compliance-based program to help deter future wrongdoing. Mexico, in particular, has recently amended its Federal Penal Code to prosecute and punish corporate entities. Since the Mexican case law in this area is still developing, it is very important that Mexico adopt deferred prosecution agreements, non-prosecution agreements, or a variation thereof that require compliance programs to enhance the public perception of the Mexican government and the judiciary. Mexico is just one of many countries amending its laws, suggesting a shift toward an implied understanding of the importance of a compliance-oriented approach. Foreign jurisdictions and the U.S. DOJ continue to enact programs to help regulate laws and deter criminal activity in many industries. The acceptance of the corporate criminal liability doctrine in several jurisdictions promotes the public interest and the integrity of the legal system, deters future illegal activity, and helps ensure corporate compliance with the law.