Volume 82, Number 2

May 2007

Compelled Cooperation and the New Corporate Criminal Procedure

Lisa Kern Griffin

In response to the broad scope of the Enron-era frauds, the federal government has adopted novel strategies to investigate and prosecute corporate crimes. This Article examines the use of stringent cooperation requirements and deferred prosecution agreements, pursuant to which corporate internal investigations have become extensions of government enforcement efforts. At the same time, liability has shifted markedly to the employee level: Over one thousand individuals have been indicted and convicted since the July 2002 creation of the Corporate Fraud Task Force, while few corporations have been charged. The convergence of corporate cooperation doctrine with the focus on individual targets results in significant unfairness for employees who are compelled to incriminate themselves in the context of internal investigations that are directed by the government. Because of the awkward partnering of public governmental investigations with private corporate compliance efforts, that normative burden on employees may not be offset by enforcement benefits. This Article suggests that the government’s application of a civil regulatory model to criminal cases creates distortions because individual liberty rather than a financial sanction is at stake, because prosecutors do not engage in negotiated governance, and because judicial oversight at the investigative stage is minimal. This Article also addresses the constitutional implications of outsourcing corporate criminal investigations and argues that employees interviewed by internal investigators pursuant to the terms of a pending deferred prosecution agreement should enjoy immunity analogous to the Garrity shield that protects public employees. Several strands of Fifth Amendment theory are consistent with the argument that economic pressure, such as the threat of job loss, can rise to the level of constitutionally significant coercion. When that pressure is brought to bear pursuant to a deferred prosecution agreement, it is delegated coercion, but may be attributed to the government as state action.