Prosecutors in the Boardroom: Using Criminal Law to Regulate Corporate Conduct

Prosecutors in the Boardroom: Using Criminal Law to Regulate Corporate Conduct

Prosecutors in the Boardroom: Using Criminal Law to Regulate Corporate Conduct

Prosecutors in the Boardroom: Using Criminal Law to Regulate Corporate Conduct

Excerpt

The simple account of America’s system of separated powers has legislators responsible for making laws, the executive branch (and prosecutors within it) charged with enforcing the laws, and judges with the power to adjudicate any disputes by declaring what the law commands. Two aspects of our modern government that have disrupted this paradigm—judicial and agency policymaking—have become scholarly obsessions. But there is another, equally strong challenge to the traditional separation-of-powers framework that has received far less attention: prosecutors who regulate.

The constitutionally limited role of the prosecutor is to “take care that the laws be faithfully executed”—that is, to enforce the policies laid down in laws enacted by the legislature. Whether this was ever true, it is certainly not the case today that prosecutors are merely enforcing preestablished rules. Armed with expansive criminal codes and broadly worded statutes, plus the ability to threaten harsh and often mandatory sentences, prosecutors have so much leverage in negotiations with defendants that they have, for all practical purposes, taken on the role of adjudicator as well. The prosecutor alone sometimes decides a defendant’s liability and sentence.

This adjudicative authority gives prosecutors leverage to engage in lawmaking power as well. Because criminal laws themselves are broad, power is delegated to prosecutors to define what those laws mean, establish what conduct within the broad parameters of the law they wish to target, and dictate how that conduct should be punished. This power is akin to that of administrative agencies to define the meaning of regulatory statutes. One could argue, however, that, despite its scope, this kind of regulatory power is inherent in executive power. The power to charge will necessarily include some policymaking given the necessary breadth in the way laws are written.

But prosecutorial regulatory power has gone further than the incidental power to regulate that comes with enforcement discretion. In the area of corporate crime in particular, prosecutors have gone beyond law interpretation and the pursuit of punishment for what they believe to be past violations . . .

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.