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John Manley was Canada’s industry minister during the last U.S. government showdown in 1995-96. He is now president of the Canadian Council of Chief Executives. (DAVE CHAN FOR THE GLOBE AND MAIL)
John Manley was Canada’s industry minister during the last U.S. government showdown in 1995-96. He is now president of the Canadian Council of Chief Executives. (DAVE CHAN FOR THE GLOBE AND MAIL)

Stephen Schneider

Deferred prosecution won’t put a dent in corporate crime Add to ...

Stephen Schneider is an associate professor in the Department of Sociology and Criminology at Saint Mary’s University

John Manley has mounted a spirited defence for the one legal recourse that many experts on corporate crime deem to be unlikely to prevent, deter or punish: the deferred prosecution agreement. As Mr. Manley writes, a deferred prosecution “allows charges against a corporate defendant to be stayed provided the firm pays a substantial penalty, implements new compliance measures and avoids future wrongdoing.” Further, “if a company fails to abide by the settlement terms prosecutors can easily revive the charges and press for a conviction.”

A more critical perspective would situate the deferred prosecution as the latest incarnation of the historical propensity for governments to allow corporations to avoid criminal prosecution.

For example, in recent years many of the world’s largest banks and investment firms have engaged in one or more business practices that have not only been highly unethical, but have breached criminal and even national security laws. These offences include the following: Laundering billions of dollars of drug money for Mexican cartels; conducting business with Iran, the Sudan, Burma and North Korea; disregarding the links between correspondent banks and extremist groups; facilitating tax evasion by clients; misleading marketing of financial products; submitting false interest rates to the London Interbank Offered Rate (LIBOR); and, most recently, conspiring to manipulate foreign currency exchange rates. It is also widely recognized that the world’s largest financial institutions were responsible for the 2008 financial crisis, due to their excessive risk taking, predatory lending practices, the marketing of toxic products, poor corporate governance and a profound lack of fiduciary responsibility to their investors and clients (and society as a whole).

The main response of government authorities to almost all of this has been to rely on monetary penalties and deferred prosecutions. Yet, it is hard to conceive of any future criminal prosecutions taking place if these global financial institutions failed to abide by the terms of their “probation.” This is due to the excuse that governments use to avoid criminal prosecution in the first place – the “too big to fail” rationale. In March, 2013, then-U.S. attorney-general Eric Holder admitted as much when he defended his decision not to criminally prosecute HSBC for its various misdeeds, claiming it would have a negative impact on the national economy. As then-assistant attorney-general Lanny Breuer put it, “Had the U.S. authorities decided to press criminal charges, HSBC would almost certainly have lost its banking licence in the U.S., the future of the institution would have been under threat and the entire banking system would have been destabilized.”

Mr. Manley also minimizes the sources of corporate crime in his erroneous declaration that most corporate malfeasance is perpetrated by a few bad apples “acting in their own self-interest.” As for the aforementioned crimes by global financial institutions, it is well documented that hundreds of individuals within individual firms and thousands across the top echelon of the financial services sector were directly and knowingly complicit. And even if a few bad apples are singled out, inevitably they are the corporate executives and directors who create and perpetuate a corporate climate that condones and even promotes law-breaking.

In today’s hyper-competitive corporate world, high-risk, high-reward cultures are the norm within multinational companies, especially those on Wall Street. Driven by a fixation with short-term profit maximization, some argue that a pathological environment exists within these corporations.

Some even contend that corporations are inherently criminogenic. The limited liabilities borne by modern corporate actors in both criminal prosecution and civil suits mean they are more apt to behave badly. The highly competitive markets in which corporations work is said to pressure management and employees to break the law. Executives’ compensation in stock options may be an incentive to cheat in the short run to push up stock prices. Executive authority within a corporation often provides powers and freedom from control that may promote unethical and illegal behaviour. Executives and directors are rarely, if ever, prosecuted so there is no deterrence for them to disengage from unethical and criminal behaviour.

To paraphrase the great social critic George Carlin, if governments truly want to stop the drug traffic they have to start jailing the bankers that launder the drug money.

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