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Article
Publication date: 13 July 2022

Megan Jean Parker and Mary Dodge

Deferred prosecution agreements (DPAs) are the tool of choice for federal prosecutors when adjudicating corporate misconduct. A DPA is a negotiation that permits the allegedly…

Abstract

Purpose

Deferred prosecution agreements (DPAs) are the tool of choice for federal prosecutors when adjudicating corporate misconduct. A DPA is a negotiation that permits the allegedly guilty party from undergoing a criminal trial if they avoid committing further wrongdoing for a specified period. This paper aims to examine whether DPAs are a beneficial mechanism for the criminal justice system to use while adjudicating corporate misconduct. By conducting in-depth semi-structured qualitative interviews with 24 practitioners in the legal field and white-collar crime experts, this study identifies the shortcomings and advantages of DPAs and highlights what policy enactments might enhance their application. The study contributes to the existing literature by expanding the narratives used by judicial officials, legal practitioners and white-collar crime scholars on the role of DPAs.

Design/methodology/approach

The current study is an in-depth qualitative analysis that explores judicial actors’ and white-collar crime scholars’ opinions on the adoption of DPAs to adjudicate corporate misconduct. The literature on DPAs is currently derived primarily from law and literature reviews published by legal scholars. Clandestine negotiations are not accessible to the public and are frequently kept in sealed files unless a breach of contract occurs, resulting in the case proceeding to trial. Hence, a qualitative analysis is the best approach to evaluate the effectiveness of DPAs. Further, little evidence is available that focuses on the opinions of professionals who have participated in these agreements. The interviews were conducted over Zoom and lasted an average of 43 min, with the longest interview spanning 1 h and 45 min and the shortest interview being 14 minutes. A non-probability sampling method – specifically, snowball sampling – was used to generate a total sample of 24 legal professionals and white-collar crime scholars. Initial participants were found by contacting law offices specializing in white-collar crime litigation and using current networks to attain access to a broader range of participants. Then, 19 participants provided referrals throughout the study. The final sample consisted of nine government officials, eight legal practitioners and seven white-collar crime academics experts. One of the government official interviews was excluded from the final research project due to a lack of expertise in the field of white-collar crime. The interview questions were designed to promote in-depth conversation and insight into personal opinions on the adoption of DPAs. Several inquiries highlighted whether DPAs are an appropriate response to corporate misconduct and whether they reduced recidivism through their intended deterrent effect. Furthermore, several descriptive questions sought to understand which criminal justice actors support the adoption of DPAs in white-collar crime cases and why. Coding of the data was first conducted individually by each author. The researchers then compared thematic findings that reflected consensus.

Findings

An immediate theme identifiable in the research is the intrinsic value that DPAs offer in adjudicating corporate wrongdoing. As indicated by a participant, corporate misconduct is not “black or white,” stressing the importance of prosecutors having a middle ground between criminal prosecution and the dismissal of charges. A judicial official indicated that “DPAs are another essential arrow in a prosecutor’s quiver – and something a defense attorney can bargain for” (Respondent 5). Seven government officials and legal practitioners noted that you are unable to send a corporation to jail, and you do not simply want to put them out of business; thus, a DPA is the only tool in which the government can mandate structural change in a company without dismantling the entire entity. Only three academics concurred with the government officials and legal practitioners that DPAs are beneficial and offer prosecutors a vital middle ground. One academic, for example, stated that “DPAs have given U.S Attorney offices that ability to be involved for a considerable amount of time in a company's business, while simultaneously promoting change within the entity” (Respondent 14). Additionally, DPAs ensure that corporations are held criminally liable without triggering an endless cycle of collateral consequences for innocent third parties. One legal practitioner, for example, stated: “Just look at the Enron case; they charged Arthur Andersen with obstruction of justice and dismantled the entire entity they made it where the business was never going to come back. A small subset of individuals, in this case, should have been held responsible but instead, hundreds and if not thousands of people were harmed. With this in mind, DPAs are extremely important, in that it limits collateral consequences because DPAs take a more holistic view that criminal prosecution does not consider” (Respondent 21). Another respondent highlighted that “DPAs are the only tool available that can be employed to change an entire organization structurally” (Respondent 20). Ultimately, the findings suggest that there is a consensus among respondents that DPAs are an appropriate response to corporate misconduct, particularly when the agreement stipulates that a company must hire an external compliance monitor and update their current compliance system. Overall, participants emphasized that these stipulations promote a sense of corporate accountability, provide for the dismissal of guilty employees and mandate structural change. The majority of the respondents (n = 20) insisted that DPAs are advantageous, yet a subset of participants were skeptical of their use in white-collar crime prosecutions. One legal practitioner, for example, noted that “DPAs are political creatures that are awarded as political favors to the largest of corporations that our economy relies upon” (Respondent 17). Another government official confirmed this statement, indicating that “DPAs are a mere slap on the wrist for large corporations – they simply see it as doing business” (Respondent 6). Four academic participants emphasized that DPAs are typically negotiated with multi-level corporations and are not extended to the small businesses that suffer the dire consequences of criminal prosecution. One academic, for instance, stressed that “the question becomes is it fairly applied and being implemented properly. Larger companies are more likely to receive and benefit from a DPA, thus, raising the question of fairness” (Respondent 12). Another academic who was previously a government official stated: “DPAs risk abuse – there have been several instances where prosecutors have forced companies to donate money to favored charities and overstepped their powers. Sometimes DPAs also come with monitors. For example, banks typically have to pay for the auditor, and it becomes extremely intrusive, and it it not clear that they are efficient.”

Research limitations/implications

Several limitations exist in this research. First, it is not a comprehensive study that is representative of the larger population, which limits generalizability. Given the contention of research on DPAs, this qualitative research contributes to the literature, and its findings are likely transferable to multiple settings in which DPAs are used. Second, DPAs are processed and drafted differently across jurisdictions; thus, comparing DPAs across state levels and among departments in the federal government would be equivalent to comparing apples to oranges. This comparison is yet another limitation to the study because criminal justice practitioners operate in both the state and federal jurisdictions. Another challenge in the current study and something that likely will be a problem for future researchers is the difficulty of gaining access to experts in an exclusive field of criminal justice, such as federal prosecutors, Department of Justice officials, federal judges and elite corporate defense attorneys. Ultimately, several obstacles arose during the study, particularly when recruiting participants to gain a large enough sample size to conduct meaningful analysis. This resulted in smaller sample size but rich, in-depth data that achieved saturation among participants.

Practical implications

Several policy implications are identifiable. First, it appears that DPAs are a mainstay of white-collar crime prosecution. No participants advocate for their complete removal from the prosecution process. Participants highlight that DPAs occupy an essential middle-ground between dismissal and criminal charges. Without this mechanism, prosecution would be impeded, and holding corporate criminal actors liable would increasingly become formidable. Although it appears that the system cannot function without DPAs, several respondents emphasize that we must begin to hold individuals accountable alongside corporations. Another policy implication that a minority of participants mentioned within the study involves ensuring that our compliance monitoring system operates appropriately. A majority of participants note that the overarching stipulation that promotes structural change within an organization is adopting a functioning compliance monitoring system, thus, emphasizing the importance of this process operating smoothly and ethically. The selection of an independent compliance monitor may be problematic. For example, a former government compliance monitor notes that not all monitors are experts in the field they are overseeing. A pharmaceutical expert, for example, may be attempting to regulate an automotive organization, which may present unique challenges. An agency of federal professionals dedicated to supervising specific industries such as automotive, pharmaceutical and financial would ensure that organizations are actually implementing the terms of the DPA.

Originality/value

Ultimately, the current research highlights the necessity of empirically studying the benefits and drawbacks of such agreements. Future research on the topic remains onerous due to the scarcity of a centralized database that contains extensive details of DPAs. The present study suggests that the verdict on DPAs is undecided, with more than half of the study's criminal justice professionals advocating for their continued and even increased use. However, about half of the participants, particularly academics, called attention to the agreements’ potential bias. The disagreement among participants is most contentious in the consideration of a DPA centralized database which would immensely aid future research and policy advancements.

Article
Publication date: 19 October 2022

Sandra K. Gates

Using the ethical consequentialist theory of utilitarianism, this paper aims to demonstrate the correlation between the prosecution of Arthur Andersen LLP and the United States…

Abstract

Purpose

Using the ethical consequentialist theory of utilitarianism, this paper aims to demonstrate the correlation between the prosecution of Arthur Andersen LLP and the United States Department of Justice’s (DOJ) increased use of pretrial diversion agreements, both nonprosecution and deferred prosecution agreements (N/DPA) for criminal corporations.

Design/methodology/approach

Through an analysis of previous literature, the United States Justice Manual, and data from the Corporate Prosecution Registry, this study examines the trend of N/DPAs from 1992 to 2021. Specifically, the data is examined to assess whether a pattern exists before and after the 2002 prosecution of Andersen.

Findings

This study finds an exponential increase of N/DPAs after Andersen’s prosecution. The DOJ’s basis for the increased use of these agreements is rooted in the utilitarian theory that the punishment of criminal corporations should deter and rehabilitate behavior while also maximizing the benefit to society (e.g. shareholders, employees and business community). The justice manual, memorandums and public speeches explicitly promote the use of N/DPAs for corporations to minimize collateral damage and the potential for negative societal impact.

Originality/value

This study applies a utilitarian framework to explain the criminal justice system’s increased use of pretrial diversion agreements for criminal corporations.

Details

Journal of Financial Crime, vol. 30 no. 6
Type: Research Article
ISSN: 1359-0790

Keywords

Article
Publication date: 1 December 2023

Claire Nolasco Braaten and Lily Chi-Fang Tsai

This study aims to analyze corporate mail and wire fraud penalties, using bounded rationality in decision-making and assessing internal and external influences on prosecutorial…

Abstract

Purpose

This study aims to analyze corporate mail and wire fraud penalties, using bounded rationality in decision-making and assessing internal and external influences on prosecutorial choices.

Design/methodology/approach

The study analyzed 467 cases from 1992 to 2019, using data from the Corporate Prosecution Registry of the University of Virginia School of Law and Duke University School of Law. It examined corporations facing mail and wire fraud charges and other fraud crimes. Multiple regression linked predictor variables to the dependent variable, total payment.

Findings

The study found that corporate penalties tend to be lower for financial institutions or corporations in countries with US free trade agreements. Conversely, penalties are higher when the company is a U.S. public company or filed in districts with more pending criminal cases.

Originality/value

This study’s originality lies in applying the bounded rationality model to assess corporate prosecutorial decisions, unveiling external factors’ influence on corporate penalties.

Details

Journal of Financial Crime, vol. ahead-of-print no. ahead-of-print
Type: Research Article
ISSN: 1359-0790

Keywords

Article
Publication date: 11 February 2022

Muhammad Saleem Korejo, Ramalinggam Rajamanickam, Muhamad Helmi Md. Said and Erum Naseer Korejo

This paper aims to debate moral and legal dilemma embedded with plea bargaining (PB) and raises a question whether the approach of “PB” is a viable tool to tackle financial crimes…

Abstract

Purpose

This paper aims to debate moral and legal dilemma embedded with plea bargaining (PB) and raises a question whether the approach of “PB” is a viable tool to tackle financial crimes and to what extent it contributes in recovery of stolen money. This paper critically examines the concept with reference to relevant laws of the USA, the UK, Pakistan and Nigeria.

Design/methodology/approach

This study used legal scholarship, jurisprudence and other open source data to analyze issues in the application of PB as a viable tool in asset recovery and financial crimes.

Findings

This paper provides that PB has certain moral and legal dilemma in terms of legality and punishment; the concept offers a sense of escape from criminal punishment by simply return of partial stolen money or “settlement” in exchange of discounted punishment even without imprisonment, thus incentivizing an offender. Further, the concept is unregulated, misapplied especially in developing world like Pakistan and Nigeria, where plea bargain laws are mostly manipulated by white-collar individuals. Therefore, this study recommends the amendment of relevant laws pertaining to PB; construction of “plea bargain handbook” to prevent arbitrariness and misapplication and to ensure transparency in its application; legislations like Speedy Trail Act; creation of “Fast Track-Model Courts” and a balancing system between “settlement” and “deterrence.”

Originality/value

Perspectives on PB are brought to bear from financial crime and malpractice and recovery of stolen money.

Details

Journal of Money Laundering Control, vol. 26 no. 3
Type: Research Article
ISSN: 1368-5201

Keywords

Article
Publication date: 28 March 2023

Christopher A. Cooper

For many, the claim that a new approach to bureaucracy—new political governance (NPG)—is underway reads as if it was written by Stephen King: Frightening fiction. While the…

Abstract

Purpose

For many, the claim that a new approach to bureaucracy—new political governance (NPG)—is underway reads as if it was written by Stephen King: Frightening fiction. While the thought of promiscuously partisan senior public servants publicly defending and promoting the government’s reputation to the demise of impartiality is disturbing, the evidentiary record has led most to dismiss the idea as empirically false. This article questions, and empirically investigates, whether dismissing the idea of promiscuous partisanship has been premature.

Design/methodology/approach

A case study of the loyalty displayed by Canada’s most senior public servant during a highly publicized parliamentary committee is analysed with a novel theoretical and empirical approach in three steps. First, the Clerk of the Privy Council (Clerk)’s committee testimony is analysed against analytical constructs of impartial and promiscuous partisan loyalty that focuses on the testimony’s direction and substance. Second, the objectivity and truthfulness of the testimony is analysed by comparing what was publicly claimed to have occurred against evidence submitted to the committee that provids an independent record of events. Third, the perception the Clerk’s testimony had on some committee members, political journalists and members of the public is analysed through print media and committee Hansard.

Findings

While the Clerk’s testimony displays an awareness of upholding impartiality, it also comprises promiscuous partisanship. Throughout his testimony, the Clerk redirects from the line of questioning to defend and promote the sitting government’s reputation. Moreover, to defend and promote the government’s reputation the Clerk’s testimony moved away from objectivity and engaged in truth-obfuscating tactics. Finally, the nature of the Clerk’s testimony was perceived by some committee members and the public—including former senior public servants—as having abandoned impartiality to have become a public “cheerleader” of the government.

Research limitations/implications

Employing an in-depth case study limits the extent to which the findings concerning the presence of promiscuously partisan loyalty can be generalized beyond the present case to the larger cadre of senior public servants.

Originality/value

Empirically, while most research has dismissed claims of promiscuous partisanship as empirically unfounded, this article provides what is possibly the strongest empirical case to date of a public incident of promiscuous partisanship at the apex of the bureaucracy. As such, scholars can no longer dismiss NPG as an interesting idea without much empirical leverage. Theoretically, this article adds further caution to Aucoin’s original narrative of NPG by suggesting that promiscuous partisanship might not only involve senior public servants defending and promoting the government, but that doing so may push them to engage in truth-obfuscating tactics, and therein, weaken the public’s confidence in political institutions. The novel theoretical and empirical approach to studying senior public servants’ parliamentary testimony can be used by scholars in other settings to expand the empirical study of bureaucratic loyalty.

Details

International Journal of Public Leadership, vol. 19 no. 2
Type: Research Article
ISSN: 2056-4929

Keywords

Open Access
Article
Publication date: 10 May 2021

Olusola Joshua Olujobi

This study aims to investigate why anti-corruption statutes are not efficient in Nigeria’s upstream petroleum industry.

5944

Abstract

Purpose

This study aims to investigate why anti-corruption statutes are not efficient in Nigeria’s upstream petroleum industry.

Design/methodology/approach

This study is a doctrinal legal research that embraces a point-by-point comparative methodology with a library research technique.

Findings

This study reveals that corruption strives on feeble implementation of anti-corruption legal regime and the absence of political will in offering efficient regulatory intervention. Finally, this study finds that anti-corruption organisations in Nigeria are not efficient due to non-existence of the Federal Government’s political will to fight corruption, insufficient funds and absence of stringent implementation of the anti-corruption legal regime in the country.

Research limitations/implications

Investigations reveal during this study that Nigerian National Petroleum Corporation (NNPC) operations are characterised with poor record-keeping, lack of accountability as well as secrecy in the award of oil contracts, oil licence, leases and other financial transactions due to non-disclosure or confidentiality clauses contained in most of these contracts. Also, an arbitration proceeding limit access to their records and some of these agreements under contentions. This has also limited the success of this research work and generalising its findings.

Practical implications

This study recommends, among other reforms, soft law technique and stringent execution of anti-corruption statutes. This study also recommends increment in financial appropriation to Nigeria’s anti-corruption institutions, taking into consideration the finding that a meagre budget is a drawback.

Social implications

This study reveals that corruption strives on feeble implementation of anti-corruption legal regime and the absence of political will in offering efficient regulatory intervention. Corruption flourishes due to poor enforcement of anti-corruption laws and the absence of political will in offering efficient regulatory intervention by the government.

Originality/value

The study advocates the need for enhancement of anti-corruption agencies' budgets taking into consideration the finding that meagres budgets are challenge of the agencies.

Details

Journal of Money Laundering Control, vol. 26 no. 7
Type: Research Article
ISSN: 1368-5201

Keywords

Book part
Publication date: 24 July 2023

Esther R. Maier and Eve Lamargot

This chapter explores the evolution of the media framings of a corporate corruption scandal over time. Our analysis focuses on the evolution of media frames used by the English…

Abstract

This chapter explores the evolution of the media framings of a corporate corruption scandal over time. Our analysis focuses on the evolution of media frames used by the English and French Press in the coverage of the corruption scandal involving SNC-Lavalin, a Quebec-based multinational engineering firm. We reveal how media coverage shifted from balanced and nuanced coverage of a complex phenomenon that facilitated debates on the appropriate consequences of corruption to a selective (re)construction of events to serve partisan agendas when the company’s legal plight was politicized. Our study contributes to the literature on media framings of corporate corruption by highlighting how the politicization of a corporate corruption scandal led to a dual climate of opinion across the English and French Press.

Details

Organizational Wrongdoing as the “Foundational” Grand Challenge: Definitions and Antecedents
Type: Book
ISBN: 978-1-83753-279-7

Keywords

Article
Publication date: 24 January 2023

Elina Karpacheva and Branislav Hock

Foreign whistleblowers are foreign citizens who help national enforcement authorities to sanction both foreign-based corporations and home-based corporations that engage in…

Abstract

Purpose

Foreign whistleblowers are foreign citizens who help national enforcement authorities to sanction both foreign-based corporations and home-based corporations that engage in economic crime. This paper aims to investigate the expansion of US law in the area of transnational economic crime by discussing the case of foreign whistleblowers.

Design/methodology/approach

This paper has been developed from a literature review carried out as part of a wider study into policing international bribery.

Findings

This paper shows that extraterritorial application of US whistleblowing laws is part of a broad trend associated with extraterritorial enforcement of US anti-corruption statutes such as the Foreign Corrupt Practices Act (FCPA). The extraterritorial reach of the FCPA and other statutes allowed the USA to become the leader in sanctioning US corporations as well as non-US corporations for economic crime. In effect, some US enforcement practices have become the standard that has influenced law and law enforcement in other countries as well as internal compliance of corporations.

Originality/value

In spite of the profound impact foreign whistleblowing has on the effectiveness of national anti-corruption enforcement, this topic has been largely neglected by academic research. To the best of the authors’ knowledge, this paper is the first to provide an overview of the role of foreign whistleblowers and the significant impact foreign whistleblowing has for legal reform in European countries and internal compliance of corporations in Europe and beyond.

Details

Journal of Financial Crime, vol. 31 no. 1
Type: Research Article
ISSN: 1359-0790

Keywords

Book part
Publication date: 24 July 2023

Timo Fiorito, Richard Hoff and Michel Ehrenhard

An emerging stream of research has identified critical events as spikes in societal interest that increase public attention to firm behavior and can function as exogenous triggers…

Abstract

An emerging stream of research has identified critical events as spikes in societal interest that increase public attention to firm behavior and can function as exogenous triggers for change. With respect to misconduct, firms vary considerably in how they respond to critical events, and for a visible change in their undesirable behavior to transpire, there needs to be ongoing accumulation of work by social-control agents. While social-control agents are often boundedly rational in their decision-making, most studies have overlooked the ability of critical events to restrict or redirect collective attention among such agents. Drawing on the case of a regulatory agency’s enforcement actions against violations of anti-money laundering regulations by three European banks, we investigate the influence of critical events on social-control agents’ enforcement behavior. This study achieves two goals: first, we identify three types of fieldwide critical events that influence social-control agents’ behavior, and second, we demonstrate that these events may shape the regulatory environment in which firms operate, thus allowing for different organizational responses to enforcement actions. Our findings contribute to the literature on critical events and organizational misconduct.

Details

Organizational Wrongdoing as the “Foundational” Grand Challenge: Definitions and Antecedents
Type: Book
ISBN: 978-1-83753-279-7

Keywords

Abstract

Details

Compliance and Financial Crime Risk in Banks
Type: Book
ISBN: 978-1-83549-042-6

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