Here is a puzzle for the lay person: If the Federal government has been waging a decade-long war on white collar crime, why are federal prosecutors uninterested in convicting corporations of white collar offenses? If the Department of Justice has made it a priority to crack down on “crime in the suites,” why do U.S. attorneys regularly let offending corporations off the hook? If there really is an upsurge of corporate fraud occurring, why is the number of cases in which the DOJ agrees not to prosecute corporations dramatically increasing?

The solution to this puzzle may be sought in Prosecutors in the Boardroom, a useful, if a bit uneven, collection of essays addressing contemporary corporate criminal law enforcement policy. In this book, editors Anthony S. and Rachel E. Barkow, both of New York University School of Law, have assembled contributions from highly knowledgeable authors that touch upon virtually every aspect of current prosecutorial practice. In doing so, they provide what is essentially one-stop shopping for information concerning the prosecution of corporations.

Prosecutors in the Boardroom is a useful book for both the lay person and the expert. For the lay person who is unfamiliar with how far removed the prosecution of corporations has become from the conventional Law and Order model of the criminal justice process, this book provides a means of getting quickly up to speed. By concentrating a wealth of information in one place, the editors make it possible for the non-expert reader to gain a coherent overview of the field. Yet the knowledgeable expert can benefit from the book as well because it will serve him or her as a useful research tool. Although the essays themselves are rather brief, the endnotes associated with each show the way to most of the relevant sources on the topic. As a result, this book can serve as a convenient starting point for research on virtually any aspect of current prosecutorial practice.

To be clear, the main value of this book is that it is a cache of useful information, not a source of normative arguments for policy reform. The focus of most of the essays is upon what prosecutors are actually doing. There is much discussion of the prospects of, and impediments to, using the criminal prosecution of corporations as a vehicle for regulation. There is little discussion of the normative justification for, or desirability of, doing so. Aside from Richard Epstein, none of the contributors to the volume even raise the question as to whether punishing collective entities for the offenses of individual employees is justified. The value of this book resides in the information it provides about the nuts and bolts of regulating corporate behavior through prosecution, not in any consideration of the appropriateness of doing so.

A look inside | The chief benefit of reviewing a collection of essays is to provide a quick index to the useful information that the essays contain. But before turning to that task, a comment on the literary quality of the essays is in order. With a few exceptions, these essays are surprisingly readable. Given the density of the factual information they contain, most of the essays are remarkably less eye-glazing than one might expect. Most of the authors have managed to present their account of prosecutorial practices in an at least somewhat engaging way that makes reading the entire collection much less of a chore than it otherwise might be.

The first essay in the collection, “The Causes of Corporate Crime: An Economic Perspective,” by Cindy R. Alexander and Mark A. Cohen, constitutes one of the exceptions to my favorable assessment of the essays’ readability. This essay provides an economic analysis of the incentives bearing on criminal activity in the corporate setting, and is precisely as boring to read as one would expect such an analysis to be. An interesting if not unexpected feature of such an economic analysis is its utter lack of concern with the moral aspect of the criminal sanction as evidenced by the authors’ observation that “[t]he possibility of deterring crime by penalizing … an individual who does not directly engage in crime is thus apparent.” From an economic perspective, punishing the innocent is merely a potentially effective tool for suppressing undesirable conduct.

The economic analysis and review of empirical evidence, which is thorough and professional, produces what appears to me to be the unsurprising and uninformative conclusion that 1) there is a relationship between corporate crime and factors such as the financial performance of the firm, the perceived gain from the crime, the perceived risk of detection and severity of punishment, the corporate culture, and the opportunity to commit crime and corporate internal governance, and 2) little is known about the nature of this relationship. In sum, to the extent that there is value in providing a detailed theoretical grounding for what most people already believe and for officially cataloging how little we know about the success of recent and contemporary law enforcement efforts, this essay does an excellent job of providing it.

The second essay, Richard Epstein’s “Deferred Prosecution Agreements on Trial,” is one of the more valuable ones, and the editors did well to position it early in the collection. Epstein provides an excellent synopsis of what gave rise to the “grand inversion”: the situation in which “the state’s decision to prosecute imposes greater burdens on individual defendants than conviction of the underlying offense.” His account of the grand inversion includes a concise explanation of why imposing criminal punishment on corporations is misguided, and a useful reminder that the utilitarian objective of criminal punishment is not maximal, but optimal, deterrence. Although he may decry the grand inversion that gave rise to the use of corporate deferred prosecutorial agreements (DPAs), Epstein recognizes that such DPAs are here to stay and he explores what can be done to ensure that they are not abused. Employing the constitutional doctrine of unconstitutional conditions as an analog, Epstein argues that DPAs should not impose constraints on corporations that are unrelated to the goal of criminal prosecution, “which is to make the punishment match the severity of the wrong.” Thus, in one concise essay, Epstein brings the reader up to speed on the nature of corporate prosecution and proposes a practical reform for one of its current abuses.

The next two essays, “Potentially Perverse Effects of Corporate Criminal Responsibility,” by Samuel W. Buell, and “Inside-Out Enforcement,” by Lisa Kern Griffin, are of a piece in that they address the effects of sharing law enforcement authority among criminal prosecutors, civil regulatory agencies, and the corporations themselves. Buell explores how the division of enforcement authority between DOJ prosecutors and regulatory agencies such as the Security and Exchange Commission can influence the effectiveness of government efforts to reduce corporate crime. He recognizes that, ideally, enforcement should be “pyramidal, with escalating layers of increasing sharp measures of control, starting at the bottom with self-regulation and capping off at the top with harsh forms of punishment.” He argues that, because of weaknesses in civil enforcement, our current system has become an inverted pyramid as too many cases get pushed to the top for effective enforcement action. Buell discusses what he calls the civil-criminal gap that arises because of the practice of regulatory agencies such as the SEC of settling suits without stigmatizing admissions of guilt, and he calls for reform of civil regulatory practice so that it “has greater reputational consequences, decides more, and requires more of firms.”

These essays are surprisingly readable. Given the density of the information they contain, most of the essays are remarkably less eye-glazing than one might expect.

Griffin explores the effects of exporting significant portions of the law enforcement function to the corporations themselves. She notes that limitations on prosecutorial resources require prosecutors to deputize “private-sector partners” to help them enforce the law. She then explores the ways in which the incentives of both prosecutors and their private partners tend to skew the enforcement away from the optimal outcome. She usefully explores the way DPAs are negotiated, the effect of appointing a compliance monitor, and the discrepancy between the current command-and-control approach and the “collaborative ideals of horizontal negotiation” to show how the results of prosecutorial practice stray from desirable regulation. Accordingly, she, like Buell, advocates more integration between civil regulators such as the SEC and criminal prosecutors.

Although the next two essays, “The Institutional Logic of Preventative Enforcement,” by Mariano Florentino-Cuellar, and “Collaborative Organizational Prosecution,” by Brandon C. Garrett, constitute the other exceptions to my positive assessment regarding readability, they nevertheless contain a valuable, if chilling, account of how the law enforcement imperative tends to eclipse all considerations of liberalism. In contrast to Buell, Florentino-Cuellar extols the virtue of the inverted pyramid. He details the greater autonomy and lesser political accountability that prosecutors enjoy in comparison with regulatory agencies, and how they benefit from the “perceived importance of their crime-fighting mission.” He follows this with a wonderful account of what might be called a criminal enforcement “ratchet effect”—the process by which each expansion of criminal regulation leads to the next. In showing how the criminalization of regulatory violations stigmatizes them so that “the criminal law label becomes capable of changing the policy environment over time,” Florentino-Cuellar explains how political incentives inevitably swell the top of the inverted pyramid. Garrett then follows with an account of how prosecutors and regulators can collaborate to divide labor and engage in mutually reinforcing actions to greatly increase the amount of control the government can exercise over businesses.

The next two essays, “The Prosecutor as Regulatory Agency,” by Rachel E. Barkow, and “What Are the Rules If Everyone Wants to Play? Multiple Federal and State Prosecutors (Acting) as Regulators,” by Sara Sun Beale, explore the effects of regulation through prosecution. Barkow provides a concise and useful account of the source of prosecutorial power and examples of how that power has been used to regulate businesses by federal and state prosecutors. She then evaluates the adequacy of prosecutorial regulation with regard to prosecutors’ accountability, institutional competence, and procedural reliability. Although she finds little difference in accountability between prosecutors and regulators, she notes that regulation by prosecution has even fewer procedural safeguards than does agency regulation and prosecutors are not required to base their decisions on scientific data and expert opinion.

Beale then explores how the threat of prosecution in multiple jurisdictions affects the efficiency of prosecutorial regulation. Noting that corporations are simultaneously subject to prosecution by federal and several state authorities, she uses the prosecution of WorldCom to illustrate how multiple prosecutions can undermine the regulatory efficiency of each. She then details both the incentives and barriers to multijurisdictional prosecution. In doing so, she highlights how political incentives can skew the effects of such prosecutions away from an optimal regulatory outcome and toward governmental rent seeking, if not extortion. Beale ends her essay with a survey that demonstrates just how little protection current law provides against such unfortunate results.

In the final essay, “Reforming the Corporate Monitor,” Vikramaditya Khanna tells you everything you wanted to know about corporate monitors, and more. Khanna begins with a historical overview of how the practice of assigning monitors as part of DPAs and non-prosecutorial agreements evolved. He then identifies the conditions under which the use of monitors makes sense: when there is a need for greater deterrence than can be provided by financial penalties. When the appointment of a monitor is appropriate, the monitor becomes part of the corporate governance structure. With this in mind, Khanna provides an excellent analysis of how monitors should be appointed (he recommends a market for monitors), what powers they may properly wield, and what duties they should owe to corporate shareholders and the judiciary. He follows this with a detailed list of reforms designed to regularize the processes of deciding whether to appoint a monitor, selecting the monitor, and assigning the monitor his or her powers. Finally, Khanna examines the amount of judicial oversight that should be applied to the selection and supervision of monitors (more before selection, less afterward) and considers whether the reports of corporate monitors should be made available to the public (generally they should).

Conclusion | In closing, Prosecutors in the Boardroom is both useful and frightening. It is useful because it supplies a wealth of empirical data about contemporary corporate law enforcement policy. It is frightening because it demonstrates what happens when well-intentioned, intelligent, dedicated law enforcement agents are freed from the constraints of liberalism—the prohibition on using those who are innocent of personal wrongdoing to achieve collective ends.