October 2008, Volume 94, Issue 6
Linkage and the Deterrence of Corporate Fraud
by Miriam Baer
94 Va. L. Rev. 1295 (2008)
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Corporate fraud is often presumed to be the type of crime that can be deterred. Those who embrace deterrence as a goal of law enforcement, however, often ignore the tradeoffs between the deterrence of potential offenders and the deterrence of those “mid-fraud perpetrators” who are already mid-way through illicit schemes when the government announces a change in policy. Unlike potential offenders, mid-fraud perpetrators have no incentive to cease criminal conduct in response to increases in sanctions or likelihood of detection. This is true because their cessation of future misconduct increases the probability that their prior conduct will be detected and punished. If a CFO has lied to a company’s shareholders in Quarter 1 about the company’s profits, his cessation of lying in Quarter 2 substantially increases the chances that someone will focus on and detect his previous lies in Quarter 1. The problem with linkage is that criminal sanctions aimed primarily at deterring new offenders may also encourage “ongoing” offenders to invest in techniques that decrease the likelihood of detection. Policymakers contemplating changes in law enforcement policy should therefore consider the linkage problem in calculating the benefits and drawbacks of different law enforcement strategies.
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