Maximal Accountability with Minimally Sufficient Punishment

Abstract

A criminal injustice system cannot rediscover its promise for justice without invigorating corporate criminal responsibility. However, maximizing corporate punishment is not a path to justice because policymakers must make choices about how much to invest in increased detection of corporate crime, warnings, persuading voluntary commitment to repair harm to victims, deferred prosecution agreements, in addition to increased prosecutions. Funding can shift from carceral punishment of crimes of the powerless to support all these forms of intervention. Ultimately, such transformation might be self-funded by improved tax compliance and reduced corporate sabotage of economic futures by the destruction of ecosystems. When all this is done as a coherent mix, corporate criminal responsibility can contribute profoundly to a good society. This Article develops the idea of minimally sufficient deterrence by building on Brent Fisse’s accountability principle for corporate offenders—all who are responsible should be held to account—whether they are individual executives, sub-units of corporations, auditors, ratings agencies, corporations that are criminal actors, or other implicated firms upstream or downstream. Show more