Corporate Death Penalty: Corporate Criminal Convictions in the Twenty-first Century

The conventional wisdom states that prosecuting corporations can subject them to terrible collateral consequences that risk putting them out of business and causing massive social and economic harm. According to this viewpoint, which has come to dominate the literature following the demise of Arthur Andersen after that firm’s prosecution in the wake of the Enron scandal, even a criminal indictment can be a “corporate death penalty.” The Department of Justice (DOJ) has implicitly accepted this view by declining to prosecute many large companies in favor of using criminal settlements called deferred prosecution agreements (DPAs). Yet, there is no evidence to support the existence of the “Andersen Effect” and the much-hyped corporate death penalty. Indeed, no one has ever empirically studied what happens to companies after conviction. In this Article, I do just that. Using the database of organizational convictions made publicly available by Professor Brandon Garrett, I find that no Law Clerk to the Honorable Gregg Costa, United States District Judge for the Southern District of Texas (2012–2013). J.D., Class of 2012, The University of Texas School of Law. All views and opinions expressed within are my own and should not be taken to reflect the position of any other individual or entity. I wish to extend my thanks to Barry McNeil and Stacy Brainin, for their invaluable instruction; to Brandon Garrett, for his advice, freely given, and his extraordinary dataset, generously shared; to Mike Koehler, for his assistance in navigating the submissions process; and to the Honorable Gregg Costa, for his encouragement and guidance. To Tansy Woan and the staff of the University of Pennsylvania Journal of Business Law, I thank you for your excellent work. Thanks go also to Keith Cohan, Monica Gaudioso, Alex Hughes, Lisa Kinzer, Nicole LeFave, Josh Packman, George Padis, Drew Pennebaker, Jeff Quilici, Sean Thompson, Kate Wagner, Colin Watterson, and Eric Werlinger, who know what they did. Finally, to Ein: All my love. MARKOFF FINAL (DO NOT DELETE) 5/10/2013 12:41 PM 798 U. OF PENNSYLVANIA JOURNAL OF BUSINESS LAW [Vol. 15:3 publicly traded company failed because of a conviction that occurred in the years 2001 to 2010. Moreover, many convictions included plea agreements that imposed compliance programs such as those that some advocates view as a key justification for using DPAs. Because corporate convictions do not have the terrible consequences they were assumed to have and because convictions can be used to obtain compliance programs just as effectively as DPAs can, the DOJ should prosecute more law-breaking companies and reserve DPAs for extraordinary circumstances. In the absence of some other justification for using DPAs, the DOJ should exploit the stronger deterrent value of corporation prosecution to its full capacity.