Talk of Criminally Prosecuting Corporations Up, Actual Prosecutions Down

A new analysis of federal data from Syracuse University finds that the Justice Department’s criminal prosecutions of corporations fell 29 percent from 2004 to 2014, even as criminal referrals to the Justice Department from other federal agencies have risen.

In fiscal year 2014, the Justice Department brought 237 cases against corporations, the lowest number since 2010, and well below the high-water mark of the decade: 398 cases in 2005. The number of convictions fell to 162, well below the Bush administration average of about 240.

The data comes from the Justice Department itself, obtained by the Transactional Records Access Clearinghouse (TRAC) through a Freedom of Information Act request. TRAC also synthesizes data from the U.S. Sentencing Commission, a division of the federal courts, to arrive at its totals.

Corporate Prosecutions Filed, FY 2004 — 2014 , U.S. DOJ via TRAC

TRAC’s report on criminal prosecutions mirrors the data released in August on enforcement of individual white-collar cases. That showed prosecutions at a 20-year low, down 36.8 percent from the peak.

It’s not for lack of possible cases. Despite the pullback in prosecutions, available data shows that federal agencies continue to find similar amounts of potential corporate misconduct. TRAC’s analysis shows that criminal referrals actually increased by 2.6 percent between fiscal years 2004 and 2014. The Justice Department last year received over nine times as many criminal referrals as they brought criminal cases.

There are also far more corporations today. TRAC’s numbers, based on the most recent IRS data from 2002 and 2012, show a 24 percent increase in total corporations and partnerships. Criminal prosecutions of both employees and the businesses themselves fell, despite the expansion.

The numbers say little about the seriousness of the cases referred or brought. But they do identify a trend of less stringent enforcement.

Just a month ago, the Justice Department, seeking to rehabilitate its image as a diligent enforcer of the law, announced new guidelines for corporate prosecutions, with a focus on individual accountability. But the guideline only pertained to new cases, meaning it could take years to reverse the shrinking trend in the TRAC data.

As it happens, TRAC blames another memo, written by Deputy Attorney General Mark Filip in 2008, for the reduction in prosecution rates. The Filip memo warned prosecutors to “take into account the possible substantial consequences to a corporation’s employees, investors, pensioners and customers” when filing a case.

That preoccupation with collateral consequences has roots in a memo from former Attorney General Eric Holder, back when he was a Justice Department official in 1999.

By highlighting the threat to corporate employees and other possible consequences, the political leadership at the Justice Department gave prosecutors a convenient excuse to neglect to pursue criminal cases, using a standard that no bank robber or drug kingpin ever has the privilege of receiving.

In the five years before the Filip memo, DOJ filed 1,677 cases against corporate criminals. In the five years after, they filed 1,309 cases, a 21.9 percent drop.

Overall criminal prosecutions in the time studied have surged by over one-quarter, TRAC found, mainly due to increased cases for violations of immigration laws. But white-collar criminals and the companies who employ them have seen less enforcement over the period.

TRAC shared their findings with the Justice Department prior to publishing the results, but received no comment.