January 12, 2022
The Honorable Merrick Garland
US Department of Justice
Robert F. Kennedy Building
950 Pennsylvania Avenue, NW
Washington, D.C. 20530
Re: Corporate Crime Database and Annual Report
Dear Attorney General Garland,
The US Department of Justice has been clear about the dangers of corporate crime.
We were encouraged by Assistant Attorney General Lisa Monaco’s speech in October 2021, in which she outlined the Department’s plans to strengthen “the way we respond to corporate crime.”
“Street criminals have criminal records – corporate lawbreakers should have them too. That could help deter and punish such crimes in many ways.”
In order to adequately address the major threats posed by corporate crime, it is important that the Department have more specific and timely capabilities to measure the incidence and severity of corporate crime, to determine whether or not its efforts against it are successful, and the many opportunities they have could be improved.
Indeed, in her October 2021 speech, the Assistant Attorney General recognized that “data analytics are playing an increasing role in corporate criminal investigations, whether it be health fraud or insider trading or market manipulation.”
But the Justice Department is still not compiling comprehensive data on corporate crime. This is a notable oversight.
It’s as if the Department of Education has no metrics for how well our children are learning, or the US Department of Agriculture has no idea how much wheat or corn our farmers are growing.
Failure to measure can lead to sloppy thinking, bad decisions, and deadlocked neglect.
We call on the Department of Justice to arm itself with the power that measurement and data analysis provide.
For street crime, the FBI oversees the Uniform Crime Reporting (UCR) Program, which tracks data from over 18,000 local and state law enforcement agencies.
The Department of Justice should establish a parallel program for corporate crime and violations of the law, including but not limited to antitrust and price-fixing, environmental crime, financial crime, foreign bribery, healthcare fraud, trade violations, labor and employment-related violations (discrimination and workplace injuries and deaths) , consumer fraud and harm to consumer health and safety, and onshore and offshore corporate tax fraud.
A handout invested here will go a long way in promoting more lawful corporate behavior and the critical public support the Justice Department needs for adequate enforcement budgets and tougher laws.
The department should create and maintain a corporate crime database. This is a basic form of accountability. Street criminals have criminal records—corporate lawbreakers should, too. This could help in many ways to deter and punish such crimes.
For example, prosecutors, regulators and judges could use the database to identify repeat offenders and impose appropriate sanctions. Procurement officials could use a corporate crime database to identify companies that do not meet the “responsible contractor” standard in the federal procurement ordinance.
Additionally, having the database freely available online to the public would benefit countless journalists, criminologists and other scholars, investors and others interested in crime in the suites.
The corporate crime database should at least:
Search by parent company, major subsidiaries, legal company name, industry, crime type, city, state, and crime date.
Contains individual company information, including the number of civil, administrative, and criminal enforcement actions taken by government agencies against company defendants in connection with a felony, misdemeanor, or civil charge, where potential fines may be $1,000 or more.
Identify the agency bringing each prosecution, the charges, the name of the entity being sued (including the ultimate parent company), and the outcome of the prosecution, if any, including settlement agreements, writs of consent, declarations of innocence, convictions, and fines and other penalties.
The Corporate Crime Database Act (HR 6545 in the 111th Congress, HR 323 in the 112th Congress) was introduced in 2010 to require the Department to set up and maintain such a database and make it available to the public via the internet.
Such proposals have been made by proponents for many years.
The department should also issue an annual corporate crime report.
The report should contain at least an estimate of the total annual cost of white-collar crime in the United States.
It should include not only the costs of crimes committed by individuals against businesses and investors (white-collar crime), but also the costs that white-collar crime imposes on the rest of society, including the resulting deaths, injuries and property damage.
Additionally, millions of Americans lost their jobs due to the 2008-9 financial crisis caused by mortgage fraud and reckless speculative gambling on Wall Street. Imagine if Americans lost trillions of dollars to the greed and lawlessness of the financial sector.
The report should include an analysis of corporate crime trends and an explanation of the relative effectiveness of various traditional sanctions and the potential of new sanctions.
While the UCR program measures certain forms of white-collar crime, it falls far short of thoroughly addressing corporate crime.
The department’s annual report on corporate crime should also aggregate law enforcement data and compile data on agency enforcement, including budgets, descriptions, staffing and the status of investigations. The report should also address the issue of unenforced non-compliance.
The report should include the number of cases referred by the FBI or other federal and state agencies to US attorneys for prosecution each year, as well as the status and final order (i.e. how many referrals were pursued; how many defendants were found guilty found; how many were resolved with deferred agreements and non-prosecution agreements; the extent and nature of the associated penalties; how many cases were resolved).
It should also compile data on agency enforcement, including the number, description, and status of investigations initiated by federal agencies (including the DOJ and Department of Labor, as well as the EPA, SEC, IRS, OSHA, CPSC, FDA, FRA, FAA , NHTSA and FTC).
More than a third of a century has passed since the Department issued a thorough analysis of corporate crime in America (“Illegal Corporate Behavior,” October 1979).
We are well into the 21st century, and non-governmental unofficial corporate crime databases have been created to partially fill the gap.
The University of Virginia Law School has compiled its Corporate Prosecution Registry. The Corporate Research Project has its Violation Tracker. But there is still no comprehensive official federal database on corporate crime in America.
Given your recognition of the tremendous cost of corporate crime to Americans, to their security, to household wealth, and to our economy, the Department must, without further delay, resolutely deploy these most basic tools of analysis and accountability.
We wish to discuss these matters with you, as well as enforcement budgets and broader consensus issues related to corporate crime, fraud and abuse that cost many human victims and hundreds of billions of dollars annually to taxpayers and private consumers. workers and small businesses.
Edward M. Robertson Law Professor
University of Maryland Carey Law School
Good jobs first
corporate research project
Price Professor of Public Welfare Law
University of San Diego Law School