They Didn't Do This Already?

It appears that when negotiating settlements with corporate wrong-doers, the Department of Justice has not considered earlier law breaking by the firms.

So a company negotiating on its first offense, and one that is negotiating for its twenty first offense, would be treated exactly the same.

This now eschewed policy seems to be to be a recipe to encourage bad actors to keep acting badly:

Companies looking to resolve with the Justice Department criminal violations such as bribery should prepare for a very thorough review of their prior sins, officials said Wednesday.

Justice Department leadership has said the agency will step up enforcement against white-collar criminals, including by taking a harder look at corporations with long histories of prior offenses.

Officials on Wednesday defended the new stance on corporate recidivism, which drew skepticism from white-collar defense lawyers gathered at an annual conference on the Foreign Corrupt Practices Act. The law, which prohibits the payment of bribes to foreign public officials, is one of the Justice Department’s highest-profile white-collar enforcement programs, garnering billions of dollars in corporate fines in recent years.

………

The pushback stems from an October announcement by the Justice Department’s second-in-command, Deputy Attorney General Lisa Monaco, who said that prosecutors would begin considering all prior wrongdoing by corporations when deciding how to resolve a case, not just misconduct similar to the issue at question in the latest probe.

Speaking during a separate session on Wednesday, Joseph Warin, chair of law firm Gibson, Dunn & Crutcher LLP’s litigation department in Washington, D.C., said the Justice Department was holding companies to too high of a standard.

“These are big organizations and try as you might to get it right, there’s gonna be misconduct. That’s what’s troubling us,” he said. “One of our clients has three million employees…that’s bigger than every city but eight or nine in the United States.”

“If I plead guilty to an environmental crime, which often are strict liability [crimes], and then we have a kickback scheme in a whole different business unit, why does that lap over into that consideration?” he asked.

If I drive drunk, should the fact that I burgled 15 houses be considered?  

Of course it does.

………

The scrutiny of corporate repeat offenders is just one of the changes the Justice Department is making to its white-collar crime enforcement program. Ms. Monaco said in October that the department had convened a corporate crime advisory group to consider other changes.

I would consider adding a formal admission of guilt to any settlements, and holding senior executives responsible for those actions.

It's patently clear that corporations have been allowed to engage in criminal acts without serious consequences, and given that the current models of corporate government make corporations indistinguishable from psychopaths, it means that corporations have been encouraged to engage in criminal acts.