Corporate Prosecution, Cooperation, and the Trading of Favors

Abstract

Both Sentencing and Prosecutorial Guidelines for Organizations provide distinct incentives for organizations to cooperate and accept responsibility in exchange for mitigation, exculpation or absolution. Ever increasing levels of corporate cooperation have become general proxies for organizational due diligence, because of these guidelines and a corresponding shift in regulatory orientation. In this Article, I question the fairness of trading corporate cooperation for government granted favors in certain cases. In Part I, guideline concerns raised by the white-collar defense bar are discussed in relation to organizational cooperation. Part II extends this discussion by highlighting a prototypic case that reveal the perils of crediting post-offense cooperation. Part III describes the government-business partnership in crime control in relation to cooperative models of regulatory oversight. Finally, I conclude that the "practical" partnership forged by the government and business through guideline incentives, a very positive achievement over pre-Guidelines adjudication, is at times compromised by the collaborative pursuit of culprits. One illustrative problem is with the trend toward "reverse whistleblowing" by corporations.

Keywords: sentencing guidelines, incentives for organizations, corporate cooperation, white-collar defense, post-offense cooperation, government-business partnership, "reverse whistleblowing"

JEL Classification: K14, D2, D21, H11, K22