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The Treatment of White-Collar Cases: The DOJ Justice Manual

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One of the most effective ways to combat corporate misconduct is by holding accountable all individuals who engage in wrongdoing. Such accountability deters future illegal activity, incentivizes changes in corporate behavior, ensures that the proper parties are held responsible for their actions, and promotes the public’s confidence in our justice system.

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It is difficult precisely to define ""hite collar crime," in part because it is a social category or concept, similar to "juvenile delinquency," rather than a legal ~oncept. Thus, same acts that might fall within the category "white collar crime" are violations of regulatory statutes and not of criminal law ~~, and although same regulatory statutes carry criminal penalties, there is no set of statutes labelled "white collar crimes." Therefore, unlike the clear definitions of what constitutes auto theft or rape, there is no legal definition, as part of the traditional criminal code. for white collar crime. Hany experts have attempted to define "white collar crime." In general all the definitions that have been proposed since the term was first used in 1939, by sociologist Edwin H. Sutherland, can be divided into three different types: (1) thoDe using the characteristics of the offender as the definitional basis (e.g., "a white collar criminal is someone of high social standing who commits Q crime"); (2) t.hose definitions based on the characteristics of the crime committed (e.g., "a white collar crime is an illegal act committed in the course of one's business or professional activity"); and (3) those definitions using the means by which the crime was committed as the descriptive base (e.g., "an illegal act committed through intentional deceit, misrepresentation, or breach of trust").

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Prosecutors investigating business entities for criminal wrongdoing are almost always confronted with difficult charging decisions in the course of their investigations. Among the key decisions are whether to charge individuals with crimes for their roles in an entity’s wrongdoing and, if so, who to charge. As the Attorney General recently observed, “It is not merely companies, but specific individuals who break the law.” Corporations act through their owners, board members, directors, supervisors, or other management officials. Often, those individuals act with sufficient mens rea to justify individualized punishment. At the same time, the nature of the business world and the corporate decision making process can make it difficult to assign culpability for a company’s crimes to any single individual, or even a collective group of individuals. Yet in nearly half of these cases, no individuals related to the organization were prosecuted (Rod Rosenstein, 2017)

The primary goals of all prosecutions of economic crimes are accountability and deterrence. “White collar crime undermines the rule of law, defrauds victims, and disrupts the marketplace.” The Department has long recognized that deterrence of corporate crime is most effective when enforcement is consistent and when individuals are brought to account for their specific acts of wrongdoing. As former Attorney General Holder observed, “[f]ew things discourage criminal activity at a firm—or incentivize changes in corporate behavior—like the prospect of individual decision-makers being held accountable.”Deterrence is most effective under two conditions: (1) when there is individual accountability; and (2) when there is uniform enforcement of the rule of law (Eric Holder, Att’y Gen, 2014).

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In fact, indeed, regulatory enforcement data on organizations are for the most part absent, and details about offenders and victims are sparse. Consequently, it is impossible to track the extent of known white-collar violations in the United States over time, to describe the characteristics of cases and defendants, or to capture the full array of sanctions levied in a particular case or against perpetrators.

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Organizations Receiving Fines or Restitution by Primary Offense Category: Fiscal Year 2016, U.S. SENTENCING COMM’N (2016).

Rod Rosenstein, Deputy Att’y Gen., U.S. Dep’t of Justice, Keynote Address at New York University School of Law on Corporate Enforcement Policy
(Oct. 6, 2017).

Eric Holder, Att’y Gen., U.S. Dep’t of Justice, Remarks on Financial Fraud Prosecutions at New York University School of Law (Sept. 17, 2014).

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