Brandon L. Garrett

Introduction

Professional policing organizations and agencies increasingly emphasize the importance of law enforcement adopting clear and comprehensive written policies and procedures, as well as accompanying training and supervision.^[1] The focus on adoption of written policy has been particularly urgent in high profile areas like the use of deadly force, in which federal consent decrees have resulted in extremely detailed written policies.^[2]  The adoption of written policy has traditionally been far less common in the area of police evidence-gathering.[3] However, in recent years, professional policing organizations have emphasized the role of best practices in policing, including in areas such as eyewitness identifications in which patrol guides traditionally did not offer detailed guidance.[4] There is very little regulation of police, however, and state law itself rarely sets out practices that police should follow. Police must self-police: police organizations must themselves draft and disseminate policy. One pressing question is whether states or other actors, such as accreditation organizations, can disseminate model policies to promote adoption, particularly where there are so many smaller police agencies. This Essay describes a success story: one that suggests self-policing can occur under the right conditions.

One pressing area in which police policies had lagged was that of eyewitness procedures, where national policing organizations have strongly recommended the adoption of improved practices,[5] but at the same time, national surveys have found highly uneven adoption of those best practices.[6] Those best practices are extremely important. As the National Research Council explained in a landmark 2014 report summarizing the scientific research in the area of human visual memory, “it is well known that eyewitnesses make mistakes and that their memories can be affected by various factors including the very law enforcement procedures designed to test their memories.”[7] In particular, the hundreds of DNA exonerations in recent years, the vast majority of which involved eyewitness misidentifications, have brought home the malleability and fragility of eyewitness memory. DNA testing has resulted in the reversal of high-profile wrongful convictions, which have made the consequences of eyewitness misidentifications and poor police procedures particularly clear. In a book, I set out the results of a study of the role eyewitness evidence played in trials of the first 250 DNA exonerees.[8] Over two-thirds of those exonerees had been convicted based on eyewitness misidentifications, and most had been misidentified following the use of suggestive law enforcement identification procedures.[9]

In this Essay, I present the results of studies used to assess the adoption of eyewitness identification policies in Virginia, a state in which prior guidance was very thin. Law enforcement agencies were required in 2005 to adopt a written policy, but they were free to adopt any policy of their choosing.[10]  All of the over-300 law enforcement agencies in Virginia had their policies on this subject requested, using the state freedom of information law. While, as of 2005, agencies were only required to have some written policy in place, over time, particularly beginning in 2011, the state law enforcement policy agency supplied detailed model policy on eyewitness procedure. One reason  policymakers were focusing on this problem was that Virginia experienced a series of DNA exonerations in cases involving eyewitness misidentifications; as of 2013, thirteen of sixteen DNA exonerations in Virginia had involved eyewitness misidentifications.[11] Nevertheless, as reported in an earlier 2013 study, those model practices were only being haltingly adopted.[12] In particular, many agencies did not have blind or blinded lineups, in which the administrator does not know which photo is that of the suspect or cannot view which photo the eyewitness is examining. A substantial body of basic research examines how humans perceive images and form visual memory. That research has been complemented by applied research in the area of eyewitness identification. This research has resulted in a large body of knowledge concerning how to test visual memory accurately, including face identification, and a set of best practices that are recommended to test and preserve the memory of an eyewitness.[13] Scientists have emphasized that the use of blinding is “central to the scientific method because it minimizes the risk that experimenters might inadvertently bias the outcome of their research, finding only what they expected to find.”[14] Thus, blinding is essential to any objective factfinding.

Five years later, in 2018, we re-surveyed agencies and found that there is now extensive dissemination and widespread adoption of the state model policy. Specifically, the vast majority of agencies have adopted blinded policies, clear instructions to eyewitnesses, guidelines for selecting fillers for lineups, recording of confidence statements, and many agencies require videotaping of lineup procedures. Those improved eyewitness identification practices have been adopted by the vast majority of agencies over the past five years.

Part I discusses the law and science of eyewitness memory and the legislative and policy background in Virginia. Part II presents the findings of this study. This study, while it examines each of the features of the lineup policies adopted in Virginia, focuses first on the adoption of blind or blinded procedures. As described, such adoption occurred in less than half of the surveyed agencies in 2013, but by 2018, there had been a remarkable change, and the overwhelming majority had adopted blind or blinded procedures. Part III discusses why this change may have occurred and the implications of this experience in Virginia for future efforts to improve police practices.

I. Legislative and Policy Background

A. The Law and Science of Eyewitness Memory

That eyewitness memory can be highly unreliable in police investigations has been a staple of criminal procedure for centuries. As the U.S. Supreme Court has put it, “[t]he vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.”[15] However, the Supreme Court has not regulated police identification procedures in response to this well-known problem. Instead, the Court has set out broad and quite deferential rules that potentially exclude as evidence unnecessarily suggestive identifications, as a constitutional matter, leaving regulation of eviden­tiary questions largely to state courts or to police agencies in the first instance.[16]

Thus, as the National Research Council has suggested, “[t]he best guidance for legal regulation of eyewitness identification evidence comes not from constitutional rulings, but from the careful use and understanding of scientific evidence to guide fact-finders and decision-makers.”[17] Police officers use a variety of different procedures to ask an eyewitness to identify a culprit, including: (1) showups; (2) photo arrays; (3) live lineups; and (4) mugshots and computer presentations of photos in which there is no designated suspect.[18] In a showup, which usually occurs at or near the crime location and shortly after the crime occurred, officers present a single, live suspect to a witness.[19] In photo arrays, officers present the eyewitness with a series of photographs, one of which is the suspect, and the others called “fillers,” or known non-suspects.[20] Live lineups, in which the suspect and fillers are presented in person to an eyewitness, are less commonly used.[21] Additional procedures may be used in which officers do not have a suspect. If so, officers may show mug books or sets of photographs to see if the eyewitness can identify a suspect, or they may ask the eyewitness to help prepare a composite image or drawing of a culprit.[22]

In scientific terms, the procedures used to test eyewitness memory should take account of both estimator variables and system variables.[23] Both types of variables can affect the memory of an eyewitness.[24] Estimator variables are factors relating to the conditions of the crime-scene viewing, such as the lighting, the eyewitness’s eyesight, familiarity with the perpetrator, or race.[25] Studies have shown that individuals display an “own-race bias,” or a greater difficulty identifying persons of a different race.[26] Estimator variables cannot be controlled by law enforcement.[27] In contrast, system variables are factors associated with the procedures that officers use to obtain identifications by an eyewitness.[28] System variables can be controlled by law enforcement.[29]

The National Research Council report made quite clear its recommendation that blind or blinded lineups should be used by law enforcement.[30] This recommendation is based upon decades of research in a number of fields on the ways in which the expectations of an administrator can bias subjects, including through inadvertent means of communication. “Even when lineup administrators scrupulously avoid comments that could identify which person is the suspect, unintended body gestures, facial expressions, or other nonverbal cues have the potential to inform the witness of his or her location in the lineup or photo array.”[31] By contrast, “[t]he ‘blinded’ procedure minimizes the possibility of either intentional or inadvertent suggestiveness and thus enhances the fairness of the criminal justice system.”[32]

The National Research Council report also highlighted that agencies should adopt standard instructions for eyewitnesses.[33] Those instructions should inform the eyewitness that a culprit may or may not be present in the lineup.[34] That instruction is crucial because an eyewitness otherwise may expect that the culprit will be present and that there is a correct choice that should be made. Showups should be limited in their use.[35] Such an instruction can still be given before conducting a showup, and agencies should have standard instructions and procedures to avoid undue suggestion in showup procedures.[36] The confidence of the eyewitness should be documented, preferably through a recording of the entire eyewitness identification procedure.[37] Standard procedures should use terminology that is easily understandable by eyewitnesses.[38] There should be clear rules on the number and selection of fillers for lineups.[39] There are a number of state statutes and model policies that provide useful models for agencies,[40] as well as a recent update to the White Paper by the American Psychology-Law Society that summarizes the state of the research on eyewitness identification procedures.[41]

B. Virginia Regulation of Eyewitness Identifications

In 2005, the Virginia General Assembly enacted legislation requiring that police adopt some form of written eyewitness identification procedure.[42] DCJS had in place, from 1993 through 2005, an extremely brief model policy on eyewitness identification.[43] The new 2005 legislation was accompanied by a more detailed model policy.[44] However, the 2005 model policy did not include instructions on how to effectively “blind” a lineup by presenting photos in folders, held by the eyewitness so they cannot be seen by the administrator, without the need to obtain an administrator who is unfamiliar with the investigation. The folder-shuffle method is an inexpensive and practical solution to the problem of blinding; in addition, agencies can use computerized administration of eyewitness identification procedures.[45] In addition, the 2005 model policy had mandated sequential policies, but only made blind administration optional.[46] A 2010 survey by the Virginia State Crime Commission found that at least twenty-five percent of agencies responding to the survey still had no policy on the subject, despite enactment of that legislation five years earlier requiring that written procedures be adopted (and presumably even more agencies not responding lacked policies).[47]

C. The 2011 DCJS Model Policy

In Virginia, a new state model policy was adopted by the Department of Criminal Justice Services (“DCJS”) in 2011 in response to a series of DNA exonerations caused by eyewitness misidentifications, as well as concern with the slow pace of adoption of best practices.[48] The DCJS model policy is not only quite detailed but also flexible, as it is designed to be operationalized by agencies of different sizes and resources. The policy reflects each of the best practices highlighted in the National Research Council report (although it pre-dates that report). 

Importantly, the DCJS model policy states that all eyewitness identification procedures should be conducted blind, by an officer who does not know which photo is that of the suspect, or blinded, so that the administrator cannot tell whether the eyewitness is examining the suspect photo.[49] To respond to the concern raised by smaller agencies, that it is not always practically possible to spare an additional officer unfamiliar with the suspect’s identity, the DCJS model policy sets out the “folder shuffle” method.[50] That method provides a way to inexpensively make a procedure blind (and sequential) by placing the photos in folders and shuffling them, with several blanks at the end. The eyewitness can open the folders and examine the photos inside, without the administrator seeing what the eyewitness is viewing. In addition to requiring blind or blinded procedures, the 2011 DCJS model policy also sets out consistent instructions to eyewitnesses, requires careful documentation of the confidence and statements by the eyewitness, and encourages both audio and video recordings to be made of the entire identification procedure.[51] These procedures were far more detailed than the prior model policy, and they provide a comprehensive model for agencies of all sizes.[52] In 2014, minor revisions were made to the model policy, largely to clarify the folder method procedures.[53]

D. The 2013 Study of Virginia Lineup Procedures

A spring 2013 study of lineup procedures in Virginia found that despite the passage of additional time since the model policy had been promulgated and disseminated to agencies throughout the state, many agencies still were not adopting the model policy, and crucially, were not conducting lineups blind or blinded.[54] Of the 201 agencies that responded to either the survey or the Freedom of Information Act (“FOIA”) requests, 145 supplied eyewitness identification policies.[55] “Troubling findings included that in total, only 40%, or 58 of 144 policies,” provided by responding agencies, “required blind lineup procedures or made them available as an option.”[56] Only 6% of agencies that provided policies had adopted the entire model policy disseminated by DCJS.[57] “[O]f the 144 eyewitness identification policies reviewed, 29% or 42 policies required blind lineup procedures. Ten more required that blind lineups be used where practicable.”[58] Six more provided that blind lineups be available as an optional practice.[59]

Regarding the folder shuffle method, “[o]nly 9 agencies described the folder shuffle method as an option.”[60] The folder shuffle method was fairly new and had been first recommended, as noted, in the 2011 DCJS model policy as a way for small agencies to effectively blind a lineup procedure.[61] “Instead, far more common were policies that were sequential, but not blind: two-thirds or 63% of the departments required or offered sequential lineups (91 of 144).”[62] Those policies may have made lineups even less reliable, since a sequential policy introduces more interaction between the administrator and the eyewitness, since each picture is shown one at time; a non-blind sequential policy may give greater cause to fear that suggestion can contaminate the results.[63]

Further, “[o]nly 88 of 144 departments had required standard instructions [to the eyewitness] as a matter of policy.”[64] Only “[a]bout half, or 71 of 144 agencies’ policies, required taking a confidence statement of some kind using the eyewitnesses’ own words. Those that did require taking a confidence statement often did not detail how that should occur.”[65] Most (63%) had sequential policies; however, 23% had sequential but not blind policies.[66] As noted, such policies may be even more vulnerable to suggestion than policies that had previously been in place. And 41 agencies (mostly sheriffs’ offices that may not conduct investigations in which identification procedures would be used) responded that they did not have eyewitness identification policies.[67]

II. Results of the 2018 Study of Virginia Eyewitness Identification Policies

In fall 2018, every policing agency in Virginia was mailed a FOIA request for all eyewitness identification policies.[68] In 2018, 193 agencies supplied policies, which constituted a much higher response rate than to the FOIA requests made for the 2013 study. An additional 40 agencies responded that they do not conduct investigations and do not have a policy—or simply do not have a policy.

Blind and blinded lineups. Of those that did supply policies, 158 agencies had blind policies, with just 30 of the 159 saying that they conduct lineups blind only where it is practicable to do so. Just 22 agencies did not provide for blind or blinded lineups. Compare these figures to those in 2013, where only 58 policies required or made optional blind or blinded lineup policies.[69] While 166 agencies use sequential lineups, just a handful of agencies use sequential but not blind policies.

Folder method. In another major change from the 2013 study, in 2018, 129 agencies had adopted policies that use the folder method or made it available as an option when there is not an independent officer available to conduct the photo array procedure. Compare these figures to those in 2013, where only 9 policies included the folder shuffle option, indicating that smaller agencies were not aware of the DCJS recommendations to make blinded lineups feasible at low cost.[70]

Sequential lineups. Almost without exception, they required sequential as well (the problem had been with those that were sequential but not blind). Moreover, in 2013, there were 51 agencies, out of 144 responding that had extremely brief policies, many dating back to a rudimentary 1993 model policy, which were only a few paragraphs long and included no meaningful operational instructions.[71]

Instructions to witnesses. In 2013, many agencies did not have policies detailing instructions to be given to eyewitnesses; only 88 of 144 policies surveyed at that time included such guidance in policies.[72] In 2018, in contrast, this was nearly universal. Of the 193 policies obtained, 167 had policies on instructions to eyewitnesses, 168 had in their policies requirements and instructions on obtaining confidence statements from eyewitnesses,[73] and 166 had a required statement from the administrator to the eyewitness that the suspect may or may not be present.

Fillers. Almost all of the policies had language indicating that fillers should resemble the suspect and stating how many filler photos should be included in a lineup; 171 of the 193 policies included policies on fillers.

Recording. Regarding electronic recording of eyewitness identification procedures, another important change since 2013 was that 76 required videotaping and 42 additional agencies required audio. In 2013, only 25 agencies made recording an option.[74] This marks a dramatic shift towards electronic recording of eyewitness identification procedures.

The figure below displays a comparison as between the 2013 and 2018 findings, displaying the number of agencies adopting each type of procedure.

Figure 1. Virginia Lineup Policies, 2013 and 2018

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One important question was whether different agencies responded to the FOIA requests in 2018 as compared to 2013, which could explain the very different patterns observed in the policies. Of the 87 that did not have blind policies in 2013, most of those agencies, 50 of them, have since changed and adopted blind policies. Only 13 have remained the same, and continue not to use blind eyewitness identification policies. It was 23 of those agencies that did not have blind policies that did not respond to the 2018 survey. Nine agencies responding for the first time to the new 2018 survey, which did not respond in 2013, have non-blind policies.

DCJS Model Policy adoption. This change marks a near universal adoption of the 2011 DCJS model policy, with its revisions, by Virginia law enforcement agencies. Not all of these policies include verbatim all of the language from the DCJS model policy, but many of these agencies have recently adopted policies that use much of the DCJS language. Only a handful of agencies, in 2018, still had such cursory and problematic policies, which is also a very important change.

III. Implications for Future Efforts to Improve Police Practices

By 2018, the vast majority of Virginia residents lived in jurisdictions in which best practices regarding eyewitness identifications had been adopted. The larger agencies, with one exception, have all adopted these best practices. As a result, of the 8.5 million Virginia residents, only 9% or about 740,000 people, lived in jurisdictions that have not adopted these policies. Of the 126 accredited agencies in Virginia, only six very small agencies did not adopt the DCJS model policy in substance.[75]

What changed between 2013 and 2018? A combination of efforts by policing organizations, dissemination between agencies, regional training by DCJS, media coverage in response to the 2013 study, and involvement of the Crime Commission, all may have helped to drive this change. There was some media attention to the 2013 survey findings, and in response, some agencies stated that they planned to update their policies.[76] There was legislation introduced in 2014 to require that agencies conform to the DCJS model policy, but it was tabled in the committee in which it was introduced.[77] The introduction of that draft legislation may have had some limited impact.

The involvement of professional policing organizations was also crucial to the success of these efforts. Executive Director Dana Schrad of the Virginia Association of Chiefs of Police worked with police chiefs, following the prior survey, to assess efforts to revise policies.[78] As noted, almost all accredited agencies later adopted these policies, at least among responding agencies. The Virginia accrediting organization added additional language regarding content of eyewitness identification policies.[79]  Meanwhile, DCJS led new efforts to conduct training on the DCJS policy and made agencies aware of its provisions. The DCJS policy was modestly revised to respond to agencies’ questions about the meaning of certain provisions. Observers noted that successful implementation of the DCJS model policy in small jurisdictions “should be persuasive” to other small departments.[80] Agencies seemed to pass on information about the issue through word of mouth and sharing best practices. In addition, accrediting agencies, policing associations, insurance providers, and lawmakers remained interested in the problem and continued to make agencies aware of the need to pay attention to the issue.

Conclusion

The results of this survey give reason to be more optimistic that policing agencies, even in jurisdictions with large numbers of fairly small agencies, can adopt best practices in a consistent fashion, at least if sustained efforts are made to engage with agencies. In 2013, based on the results of the survey of Virginia lineup policies, I suggested that due to institutional inertia, not policy choices, there was far too slow a pace of adoption of best practices. At the time, it appeared that stronger regulatory measures might be needed to safeguard the accuracy of criminal investigations. However, five years later, the evidence suggests that policing institutions can slowly come to adopt best practices, without such stronger regulatory measures. A combination of training, growing awareness, media coverage, and sharing of information between agencies, may have resulted in a real statewide improvement of practices: self-policing was successful in adoption of improved police policy. These results suggest that close work—with professional policing organizations, policymakers, accreditation bodies, and police agencies themselves—can be an effective way to shape law enforcement policy through self-policing.

Corporate criminal enforcement has exploded in this country. Billion-dollar fines are now routine, where they were unimaginable a decade ago, across a range of industries, from Big Pharma to the largest megabanks to defense contractors and energy companies. We have federal prosecutors and the Department of Justice (“DOJ”), together with the white-collar bar, to thank for this. Their innovations have transformed what was, in decades past, a backwater area of criminal practice, in which corporate enforcement was uncommon and any resulting fines often quite minor, into a rapidly changing and exciting field of practice.[1] Yet deep concerns remain. General Motors recently received an out-of-court deferred prosecution agreement that permits the company to avoid a conviction for concealing defects over many years—actions that cost over a hundred people their lives—accompanied by no charges for any employees.[2] We have seen major financial institutions like AIG, Barclays, Credit Suisse, HSBC, JPMorgan, Lloyds, and UBS prosecuted repeatedly in a space of just a few years. Just imposing eye-catching corporate fines is not enough to generate lasting accountability.                                        
Now, the DOJ has begun to rethink the evolving corporate prosecution approach. Professors Elizabeth Joh and Thomas Joo have written a wonderful essay critically examining the new Yates Memo—the DOJ’s new set of guidelines for individual accountability in corporate crime investigations—which has been dubbed, in the typical style of the white-collar bar, after Sally Yates, the Deputy Attorney General who drafted the memo.[3] Joh and Joo question how effective the new DOJ policy shift will be and “urge greater consideration of complexity” in corporate prosecutions.[4] They fear, as I do, that a stilted focus on only individual accountability might permit excessive leniency to be afforded to corporations. Fortunately, this policy change is not purely an “all-or-nothing” change, as I will describe, due to the way in which it interacts with other aspects of the larger set of corporate charging principles that the DOJ has already adopted. That is also an additional weakness of the policy change. It is unclear what a course correction means where, at bottom, prosecutors simply have discretion to charge corporations—or not—and settle the corporate cases that are brought through opaque, intensive, and highly complex negotiations.

Most recently, the DOJ has incorporated the Yates Memo into its broader set of corporate charging guidelines contained within the U.S. Attorneys’ Manual and made additional changes to those guidelines, including setting out the needs for corporate self-reporting and better coordination between federal enforcement agencies that so often work in tandem.[5] Those larger changes, while useful, represent an incremental shift in the overall approach. Perhaps most troubling, the DOJ has not tightened its criteria for granting leniency in the form of deferred or non-prosecution agreements to corporations. Nor has the DOJ, despite statements that recidivism will be taken seriously, changed its guidelines to address the concern that corporations violate agreements and commit new crimes but still obtain leniency.[6] The DOJ also has not meaningfully addressed the substance of prosecution agreements, from calculation of fines, to the scope of compliance reforms sought, to the supervision of the agreements. A deeper rethinking of the federal corporate charging guidelines is much needed, and the paramount concern with leniency in corporate prosecutions—to avoid undue collateral consequences—should instead be directed at individuals.

I. Why Guide Corporate Charging?

Why do we have federal corporate prosecution guidelines at all? In few areas of criminal law do prosecutors announce in advance, and in detail, under what circumstances they will prosecute versus offer outright leniency. For years, the DOJ had no specific guidelines, for example, on federal drug prosecutions; it was only recently that then-Attorney General Eric Holder issued guidance on when, for example, to charge mandatory minimums in drug cases.[7] The U.S. Attorneys’ Manual contains general guidance that pretrial diversion, supervision, and leniency should be considered for some individuals, noting that “[i]nnovative approaches are strongly encouraged,” but those approaches are rarely used by U.S. Attorneys, who have extended such pretrial leniency to a tiny fraction of individuals charged every year.[8] As federal District Judge Emmett Sullivan has put it, “people are no less prone to rehabilitation than corporations.”[9] Instead, for years, particularly under Attorney General John Ashcroft, the DOJ policy was the opposite of lenient, encouraging prosecutors to pursue the “most serious, readily provable” charges against individuals.[10] In 2010, these guidelines were moderated to encourage pursuit of “the most serious offense that is consistent with the nature of the defendant’s conduct, and that is likely to result in a sustainable conviction,” while also encouraging an “individualized assessment” of the defendant.[11]

Corporations, though, are treated differently. They have never been prosecuted only for the most serious offenses committed by their agents. Corporations have long received a separate program of treatment under the Antitrust Division’s highly successful Leniency Program (which affects both corporations and individuals, and which is not affected in its approach by the Yates Memo).[12] In 1999, then-Deputy Attorney General Eric Holder issued the first DOJ memo providing more general guidelines for corporate prosecutions.[13] It was a 2003 revision to those guidelines, however, that accompanied the modern rise in prosecutions of the largest and public companies: the “Thompson Memo,” named after Larry Thompson, the Deputy Attorney General who oversaw the revisions, as I have described elsewhere.[14] In the years since the 2003 change, the DOJ has revised the guidelines—which have been incorporated into the U.S. Attorneys’ Manual as a set of principles for prosecuting organizations—several more times, responding to concerns regarding attorney-client privilege and corporate payment of attorneys’ fees, as well as concerns regarding the appointment of corporate monitors. The overall structure of the principles contained in these Principles of Federal Prosecution of Business Organizations encouraged consideration of a set of nine factors when deciding whether to pursue an indictment or conviction of a corporation, or, alternatively, a deferred or non-prosecution agreement. These factors broadly focused on the seriousness of the past conduct at the firm, the firm’s present cooperation, reporting and compliance at the firm, and future consequences, including collateral consequences, for the firm and others should the company be prosecuted.[15]

Now, those principles have been amended yet again. The most recent 2015 changes add a tenth factor to the set of considerations when charging organizations. The addition is nothing new, since, to be precise, the DOJ separated a single prior, confusing factor that considered both cooperation and self-reporting into two separate factors.[16] To be sure, when separating cooperation as a factor, the DOJ added a clarification that it is the firm’s cooperation in the investigation of its agents that is the priority. The new guidelines also contain an entire, prominently displayed section announcing the new “focus on individual wrongdoers.”[17] That section details how prosecutions of individuals will be a focus “at every step of the process,” including from the earliest stages of an investigation.[18] Moreover, the guidelines now make clear that cooperation is to be more clearly limited to cooperation in identifying culpable individuals: “In order for a company to receive any consideration for cooperation under this section, the company must identify all individuals involved in or responsible for the misconduct at issue, regardless of their position, status or seniority.”[19] The guidelines also highlight the now separately noted importance of self-reporting in the form of a “timely and voluntary disclosure,” which is a truly important change, since corporate crimes may often go undetected, and corporations in the past had remained unsure as to whether self-reporting crimes would actually be rewarded.[20]

However, the revised principles continue to encourage the use of deferred and non-prosecution agreements for corporations, recommending their use as a middle ground, short of a conviction but not quite a declination. The principles vaguely note that whether undue collateral consequences of an indictment or conviction recommend such an approach “must be evaluated in a pragmatic and reasoned way that produces a fair outcome, taking into consideration, among other things, the Department’s need to promote and ensure respect for the law.”[21] The principles do say that “prosecutors should generally seek a plea to an appropriate offense,” and also that “generally” this should be a plea to the “most serious, readily provable offense charged.”[22] The principles also add a new section on coordinating parallel proceedings, to encourage closer cooperation between prosecutors and those pursuing civil, regulatory, and administrative actions.[23]

How important are these sorts of changes to that larger set of corporate charging principles, given the complexity of the guidelines and the emphasis on the “substantial latitude” that prosecutors retain in exercising their discretion?[24] One preliminary question is whether the latest round should even be considered a meaningful set of changes at all. Regarding the new stated focus on individual culpability, DOJ policy had already emphasized for some time that “[o]nly rarely should provable individual culpability not be pursued, particularly if it relates to high-level corporate officers,” where the company settles its case with prosecutors (since, after all, the company’s liability is necessarily premised on the crimes of its agents).[25] Supposedly, individuals were always a central focus of an investigation. Yet the new additions address an important practical problem, the subject of my recent article published in this journal.[26] There, I detail how from 2001 to 2014, prosecutors entered 306 deferred and non-prosecution agreements with companies, which are settlement deals permitting the companies to avoid an indictment and a conviction. Among those companies entering deferred and non-prosecution agreements, thirty-four percent or 104 companies, had individuals prosecuted, with 414 total individuals prosecuted to date. Nor were most of those individuals higher-ups; most were middle management. The average sentence, for those who received a sentence with jail time, was forty months, but over forty percent did not receive any jail time.[27]

The new DOJ guidance recognizes, but does not directly address, the practical challenges of identifying responsible individuals. Individual wrongdoing will now be a stated focus from the earliest stages, and the principles now seek to more directly incentivize such cooperation. A company will only get full cooperation credit for identifying all relevant individuals. But how will prosecutors know whether a company has done so, given a position of real dependence on the company’s own internal investigation for information about who did what? It had long been problematic that corporations could receive credit for cooperation that, as I have argued, does not remotely resemble the criteria for “substantial cooperation” for individuals (although the Sentencing Guidelines criteria must still themselves be reformed).[28] Nor, as Professors Joh and Joo describe,[29] does cooperation of the corporation itself necessarily mean that the most responsible individuals, rather than scapegoated low-level employees, are identified. Justice is not served if the company identifies, as Deputy Attorney General Yates put it well, “the vice president in charge of going to jail.”[30]

The limitations of the new memo extend more broadly, however. The considerations of prosecutors themselves are multifarious. Even if a company obtained full cooperation “credit,” this would not necessarily translate to a more lenient outcome. There are other factors to consider. What if the company’s track record of violations was long; would a recidivist really receive leniency for fully cooperating as to its latest violation? What if the company did not self-report, but only cooperated once it had been turned in by a competitor? What if the conduct was so reprehensible that prosecutors felt it deserved maximum punishment? After all, cooperation is only one of the ten factors in the principles. Similarly, self-reporting in the form of a timely and voluntary disclosure is just another factor, and while it can be considered “both as an independent factor and in evaluating the company’s overall cooperation and . . . compliance,” even if a company voluntarily self-discloses, “prosecution may be appropriate” based on “a consideration of all the factors set forth in these Principles.”[31] What if a company is downright non-cooperative or fails to disclose its crimes? Perhaps such a company could still receive substantial leniency if other factors weighed in the other direction, such as self-reporting or collateral consequences to shareholders and employees. Indeed, there are examples of deferred prosecution agreements that describe companies as having initially been uncooperative or not disclosing their crimes, but that later garner leniency.

There is no reason that these latest set of changes would produce greater assurances or greater clarity to corporations. With every revision and expansion of the U.S. Attorneys’ Manual principles, prosecutors still fundamentally retain broad “all things considered” discretion in corporate charging. As I have developed in my empirical work on the subject, what the guidelines say is one thing, and what prosecutors actually do in practice is another. The guidelines do not say that most public corporations should receive deferred and non-prosecution agreements, but that is what has happened in practice. The guidelines do not speak to how corporate recidivists should be treated, and the relative lack of consequences in practice speaks volumes. Perhaps we need to look at forces operating largely outside of the DOJ to better understand what occurs in corporate prosecutions.

II. Beyond the Prosecutors: Corporations and Judges

Corporations are not ordinary defendants. A large company may itself face challenges uncovering who did what, even if it is intent on cooperating. Corporate negotiations with prosecutors are dynamic, to put it mildly, and the approaches of companies and industries matter. If other major banks start to receive plea agreements, then obtaining a deferred prosecution agreement may no longer seem so necessary to preserve a firm’s reputation. The concerns of regulators may play an important role in negotiations, and often compliance terms and supervision of agreements centrally involve specialist regulatory agencies.

Let us not forget the federal judiciary and its supervisory role. Some judges have taken on a more active role in reviewing deferred prosecution agreements before approving them, as well as some plea agreements. I have argued that judges should provide a meaningful review of the terms of such agreements, given their complexity and public importance.[32] In 2013, federal Judge Richard J. Leon rejected a deferred prosecution agreement with a company for foreign bribery, “looking at the DPA in its totality” and noting that not only were “no individuals . . . being prosecuted for their conduct at issue here,” but also “a number of the employees who were directly involved in the transactions [we]re being allowed to remain with the company.”[33] Soon, the U.S. Court of Appeals for the D.C. Circuit may rule on appeal whether doing so was appropriate.

Federal Judge John Gleeson asserted a supervisory power to receive monitors’ reports concerning a deferred prosecution agreement with HSBC.[34] The DOJ guidelines have long said very little about the entire subject of supervising compliance and ensuring that a corporation adheres to the terms of a prosecution agreement.

Most recently, Judge Emmett Sullivan suggested that certain factors (suggested by this author as amicus) could provide “useful guideposts” when evaluating whether a deferred prosecution agreement with a company is truly “designed to secure a defendant’s reformation” or whether the terms are “so vague or minimal as to render them a sham.”[35] Such interventions will be of necessity quite deferential where there is no entitlement to receive diversion and where prosecutors reach an agreement with a defendant, but they may also impact the future contours of corporate prosecutions, as they have in the past.

III. Does It Take a Plan?

Do the breadth of prosecutorial discretion and the multifactored nature of the considerations the DOJ uses when charging a corporation doom any reform efforts to failure? I think not, but it takes a more comprehensive plan of attack to respond to the “too big to jail” challenge of corporate prosecutions. And, to be fair, the DOJ is continuing to rethink its approach towards corporations; the Yates memo is not the last word. For example, the Fraud Section at the DOJ has retained a compliance expert to do a more rigorous job of assessing compliance, since the corporation’s “remedial action[s]” and any efforts to implement an effective corporate compliance program are among the factors to be considered.[36] The entire area is evolving so quickly that the DOJ sensibly continues to adapt and respond to concerns, including those raised by academics, of all people.

Outside of the DOJ, perhaps, more sweeping solutions can be considered. I have suggested a broader palette of reforms to address these problems, both in my book and my recent article on the problem of individual prosecutions.[37] Legislation is pending in Congress, chiefly focused on the transparency of the financial terms in civil and criminal corporate settlements. Former Secretary of State Hillary Clinton has proposed as part of her presidential campaign a top-to-bottom plan for policing and preventing corporate crime and financial misconduct.[38] The plan carefully addresses systemic risk in financial institutions (“too big to fail”), but my interest is in “too big to jail” provisions: The plan addresses a range of concerns that companies and banks, as well as their officers and employees, can commit massive crimes at great cost to the public but receive mere slaps on the wrist. Here, I break those relevant portions of the Clinton plan down into four key recommendations.[39]

1. Corporate deals should not be out of court. I have argued for some time that non-prosecution agreements simply should not be pursued (although the Swiss Banking Program may be the exceptional circumstance in which such agreements are genuinely useful).[40] I have also argued that deferred prosecution agreements have been overused. The DOJ has begun to respond by more often entering plea agreements in the most serious corporate prosecution cases in practice, but not, as noted, as a matter of any formal policy change. The DOJ Guidelines should be changed to reflect the priority of corporate convictions, not just deals. The Clinton plan criticizes the “overuse” of out-of-court corporate prosecution agreements and calls for DOJ guidelines clarifying that those agreements should “be used in limited circumstances.”[41] The DOJ chose not to make any such change in its recent round of revisions to its guidelines. Corporations should know that they cannot count on out-of-court leniency deals for the most serious crimes. They should typically be convicted. (In contrast, I strongly agree with Judge Emmett Sullivan that we should be thinking far more broadly about deferred and non-prosecution agreements for individual offenders.)[42]

2. Corporate deals should be in the open. We should know what fines companies are really paying and what is tax deductible or offset through credits. The Clinton plan endorses the bipartisan transparency in corporate settlements legislation proposed by Senators Elizabeth Warren and James Lankford. Some agreements are quite clear on the tax consequences of a settlement. The JP Morgan settlement, for example, included $1.7 billion in forfeiture, but stated that the forfeiture was to be treated as a penalty and that JP Morgan must not see a tax deduction or credit from that settlement amount.[43] Others are more opaque. They often do not explain any sentencing guidelines calculation for how the fine was determined, either. The problem also extends to civil settlements, such as BP’s, which have been silent on the question.[44] Some settlements have also included set-offs against payments that companies have already made or have agreed to make to state and local enforcers or federal agencies. Entire agreements with corporations have been hidden, although University of Virginia law students have filed FOIA requests and successfully obtained many of them.[45] The plan says that all such corporate agreements must be publicly disclosed. The DOJ should be requiring as much on its own. Despite detailed criticism on this front as to the lenient fines imposed and the failure to calculate them in any transparent way,[46] the DOJ did not address the calculation of fines at all in its revised guidelines, and it has never done so except to say that punishment and deterrence can be accomplished by “substantial fines.”[47]

3. Individuals should be held accountable. As noted, corporations that receive non-prosecution and deferred prosecution agreements typically manage to insulate individuals from prosecution, although they invariably agree to fully cooperate with prosecutors. When individuals are charged, they are typically low-level employees, not higher-ups, and they often do not receive jail time. I have proposed to extend statutes of limitations in corporate criminal investigations.[48] The Clinton plan would do so for major financial fraud, which may make complex investigations more practicable.

4. Prosecutors need far more enforcement resources. In corporate prosecutions, there is a role reversal: The federal prosecutors are the David to the defendants, who are the corporate Goliaths of the world. Enforcers and prosecutors need substantial resources to tackle cases involving hundreds or thousands of employees at major companies. The Clinton plan is the first serious plan to bolster enforcement. When the multinational corporation Siemens was investigated in the largest foreign bribery case of its time, the firm cooperated, and in the process, Siemens spent over a billion dollars hiring attorneys and investigators to represent it.[49] Prosecutors and regulators could move mountains with a fraction of those resources.

Conclusion

We have long needed a detailed plan of action to revamp our evolving system of corporate prosecutions, which are very much the envy of the world corporate enforcement community but which are also still very much a work in progress. Professors Joo and Joh carefully dissect the Yates memo and illustrate how limited its impact will likely be, as well as the potentially perverse consequences of its priorities. It is not altogether clear that it is in fact a new policy. Since their writing, the DOJ has announced broader changes to its corporate charging guidelines. These changes are incremental and preserve broad charging discretion that has not served prosecutors or corporate prosecutions well in the past. Far more promising changes are possible, and some may be genuinely in the works at the DOJ, through legislation, and in plans that may be adopted by future administrations yet to come. To merely say the focus will be placed more on individual prosecutions raises practical questions, including whether this focus will come at the expense of careful corporate level enforcement. To bolster investigation and enforcement resources, the DOJ must reorient the entire system by rethinking the rules for civil disbarment, enhancing civil fines, incentivizing whistleblowers better, and strengthening prosecution priorities for the most serious offenders.

We are in the midst of a rethinking of our system of criminal justice in this country. We are reconsidering our mass incarceration and overly harsh sentences, with their collateral consequences on entire communities and generations of young people, and we are focusing on efforts to promote reentry, rehabilitation, and prevention, rather than punishment. When one turns to the most privileged offenders in this country, the picture is reversed. The most far-reaching corporate crimes have received leniency for years now, as the result of careful thinking and rethinking of the precise contours of a federal leniency program designed to avoid excess collateral consequences for corporate offenders. Rehabilitation is not taken seriously enough, with concerns that compliance may often be overly cosmetic. Corporate fraud enforcement needs more powerful teeth. In the years to come, hopefully we will see a reversal of federal priorities, with new efforts to avoid collateral consequences for individuals committing relatively small offenses, combined with far more rigorous prosecution of the largest corporate crimes.

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 [1] For an overview, see Brandon L. Garrett, Too Big to Jail: How Prosecutors Compromise with Corporations 1–18 (2014).

[2] David M. Uhlmann, Justice Falls Short in G.M. Case, N.Y. Times, Sept. 20, 2015, at SR5, http://nyti.ms/1V1Kzkq. For a report expressing concern with a wide range of recent civil and criminal corporate settlements, see Office of Sen. Elizabeth Warren, Rigged Justice: 2016: How Weak Enforcement Lets Corporate Offenders Off Easy (Jan. 2016), http://‌www.warren.senate.gov/files/documents/Rigged_Justice_2016.pdf, archived at https://‌perma.‌cc/6LS7-GNWN.

[3] Elizabeth E. Joh & Thomas W. Joo, The Corporation as Snitch: The New DOJ Guidelines on Prosecuting White Collar Crime, 101 Va. L. Rev. Online 51 (2015).

[4] Id. at 54.

[5] U.S. Dep’t of Justice, U.S. Attorneys’ Manual § 9-28.000 (2015) [hereinafter U.S. Attorneys’ Manual], http://www.justice.gov/usam/united-states-attorneys-manual, archived at https://‌perma.cc/J7C9-6UR3.

[6] See, e.g., Garrett, supra note 1, at 165–68 (describing concerns regarding corporate recidivism).

[7] Memorandum from Eric Holder, Attorney Gen., U.S. Dep’t of Justice, on Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases (Aug. 12, 2013), http://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/ag-memo-‌department-policypon-charging-mandatory-minimum-sentences-recidivist-enhance‌ments-in-certain-drugcases.pdf, archived at https://perma.cc/Y7ST-93YH.

[8] U.S. Dep’t of Justice, U.S. Attorneys’ Manual: Criminal Resource Manual § 712, http://‌www.justice.gov/usam/criminal-resource-manual, archived at https://perma.cc/WX3Q-5JE7. Judge Sullivan points out: “Department of Justice statistics indicate that in fiscal year 2012, there were a total of 253 pretrial diversions for individual defendants, accounting for 0.9% of the reasons why Assistant United States Attorneys declined to prosecute.” United States v. Saena Tech Corp., Nos. 14-66 (EGS), 14-211 (EGS), 2015 WL 6406266, at *27 (D.D.C. Oct. 21, 2015) (citations omitted). Judge Sullivan notes also that prejudgment probation is similarly underused. Id. at *28.

[9] Saena Tech Corp., 2015 WL 6406266, at *29.

[10] U.S. Attorneys’ Manual, supra note 5, § 9-27.400; Memorandum from John Ashcroft, Attorney Gen., U.S. Dep’t of Justice, on Department Policy Concerning Charging Criminal Offenses, Disposition of Charges, and Sentencing (Sept. 22, 2003), http://www.justice.gov/archive/‌opa/pr/2003/September/03_ag_516.htm, archived at https://perma.cc/4DF7-884S.

[11] Memorandum from Eric Holder, Attorney Gen., U.S. Dep’t of Justice, on Department Policy on Charging and Sentencing (May 19, 2010), http://www.justice.gov/sites/default/files/‌oip/legacy/2014/07/23/holder-memo-charging-sentencing.pdf, archived at https://perma.cc/‌UXQ2-UAAL.

[12] U.S. Dep’t of Justice, Antitrust Div., Leniency Program, http://www.justice.gov/atr/‌lenien‌cy-program, archived at https://perma.cc/Q3JK-PJFU.

[13] Memorandum from Eric Holder, Deputy Attorney Gen., U.S. Dep’t of Justice, on Bringing Criminal Charges Against Corporations (June 16, 1999), http://www.justice.gov/‌sites/default/‌files/criminal-fraud/legacy/2010/04/11/charging-corps.PDF, archived at https://perma.cc/G5T7-ULMM.

[14] Memorandum from Larry D. Thompson, Deputy Attorney Gen., U.S. Dep’t of Justice, on Principles of Federal Prosecution of Business Organizations (Jan. 20, 2003), http://www.ameri‌canbar.org/content/dam/aba/migrated/poladv/priorities/privilegewaiver/2003jan20_privwaiv_doj‌thomp.authcheckdam.pdf, archived at https://perma.cc/85RM-NQJK.

[15] See U.S. Dep’t of Justice, U.S. Attorneys’ Manual § 9-28.200 (2008) [hereinafter U.S. Attorneys’ Manual (2008 Version)], http://www.justice.gov/opa/documents/corp-charging-guide‌lines.pdf, archived at https://perma.cc/A58J-72LV.

[16] U.S. Attorneys’ Manual, supra note 5, § 9-28.300 (including, as factor six, “the corporation’s timely and voluntary disclosure of wrongdoing,” and, as factor four, “the corporation’s willingness to cooperate in the investigation of its agents”).

[17] Id. § 9-28.210.

[18] Id. § 9-28.700(B).

[19] Id. § 9-28.700(A).

[20] Id. § 9-28.900.

[21] Id. § 9-28.1100(B).

[22] Id. § 9-28.1500(A), (B).

[23] Id. § 1-12.000.

[24] Id. § 9-28.200(B).

[25] See U.S. Attorneys’ Manual (2008 Version), supra note 15, § 9-28.200(B).

[26] Brandon L. Garrett, The Corporate Criminal as Scapegoat, 101 Va. L. Rev. 1789 (2015).

[27] Id. at 1791.

[28] Id. at 1843–46 (internal quotation marks omitted).

[29] Joh & Joo, supra note 3, at 58.

[30] Matt Apuzzo & Ben Protess, Justice Dept. Sets Its Sights on Executives, N.Y. Times, Sept. 10, 2015, at A1, http://nyti.ms/1UI3xfX.

[31] U.S. Attorneys’ Manual, supra note 5, § 9-28.900.

[32] Garrett, supra note 1, at 282 (arguing that “[j]udges should consider the public interest when reviewing . . . deferred prosecution agreements” and “insist on full and open hearings before approving [such] agreements”).

[33] United States v. Fokker Servs. B.V., 79 F. Supp. 3d 160, 166 (D.D.C. 2015).

[34] United States v. HSBC, No. 12-CR-763, 2013 WL 3306161, at *1 (E.D.N.Y. July 1, 2013).

[35] United States v. Saena Tech Corp., Nos. 14-66 (EGS), 14-211 (EGS), 2015 WL 6406266, at *16 (D.D.C. Oct. 21, 2015). I note that this author served as an amicus making recommendations to the court regarding the question of what standard should be used when deciding whether to approve a deferred prosecution agreement with a corporation. See id. at *19.

[36] Press Release, U.S. Dep’t of Justice, New Compliance Counsel Expert Retained by the DOJ Fraud Section (Nov. 3, 2015), http://www.justice.gov/criminal-fraud/file/790236/download, archived at https://perma.cc/DN4Z-F87F.

[37] See Garrett, supra note 26, at 1839–49 (exploring possible reforms); Garrett, supra note 1, at 273–84.

[38] Hillary Clinton: Wall Street Should Work for Main Street [hereinafter Clinton Plan], https://www.hillaryclinton.com/p/briefing/factsheets/2015/10/08/wall-street-work-for-main-street, archived at https://perma.cc/9CUX-Y2QU.

[39] I previously outlined these four features of the Clinton Plan in an op-ed. See Brandon L. Garrett, It Takes a Plan (To End ‘Too Big to Jail’), Huffington Post (Oct. 15, 2015), http://‌www.huffingtonpost.com/brandon-l-garrett/it-takes-a-plan-to-end-too-big-to-jail_b_829614‌0.html, archived at https://perma.cc/A6NC-ARH8; Brandon L. Garrett, It Takes a Plan (To End ‘Too Big to Jail’), CLS Blue Sky Blog (Oct. 14, 2015), http://clsbluesky.law.columbia.edu/‌2015/10/14/it-takes-a-plan-to-end-too-big-to-jail/, archived at https://perma.cc/UF9Z-SEH8.

[40] In 2010, the United States and Switzerland signed a treaty providing for the exchange of information on potential tax evaders. The DOJ subsequently announced that it would offer non-prosecution agreements to Swiss banks that voluntarily disclosed their roles in helping individuals avoid U.S. taxes. For a more detailed explanation, see Garrett, supra note 1, at 244–45. The DOJ has detailed the Swiss Bank Program and provided materials from each of the cases on a useful website. See U.S. Dep’t of Justice, Swiss Bank Program, http://www.‌justice.gov/tax/swiss-bank-program, archived at https://perma.cc/39H9-C6NL.

[41] Clinton Plan, supra note 37.

[42] United States v. Saena Tech Corp., Nos. 14-66 (EGS), 14-211 (EGS), 2015 WL 6406266, at *21 (D.D.C. Oct. 21, 2015).

[43] See Verified Complaint, Exhibit D to the Deferred Prosecution Agreement, at 1–6, United States v. JPMorgan Chase Bank, No. 14-CR-___ (S.D.N.Y. Jan. 6, 2014), http://www.‌justice.gov/‌sites/default/files/usao-sdny/legacy/2015/03/25/JPMC%20DPA%20Packet%20%‌28Fully%20Executed%20w%20Exhibits%29.pdf, archived at https://perma.cc/H3DE-BQDV; Garrett, supra note 1, at 124.

[44] Garrett, supra note 1, at 135 (noting that, in entering a civil consent decree with BP, the Environmental Protection Agency did not explain how it reached a penalty of $15 million).

[45] Univ. Va. Law Sch., First Amendment Clinic Obtains 18 More of DOJ’s Secret Deals with Corporate Offenders (June 4, 2015), http://www.law.virginia.edu/html/news/2015_sum/‌foia.htm, archived at https://perma.cc/Z8JL-92JK. 

[46] See Garrett, supra note 1, at 67–70, 149–50.

[47] U.S. Attorneys’ Manual, supra note 5, § 9-28.1500(B).

[48] Garrett, supra note 26, at 1841–42.

[49] Nathan Vardi, The Bribery Racket, Forbes (May 28, 2010), http://www.forbes.com/‌global/2010/0607/companies-payoffs-washington-extortion-mendelsohn-bribery-racket.html; see also Garrett, supra note 1, at 9–10.

[50] The author is the Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia School of Law.

[51] This piece is in response to a piece by Professors Elizabeth Joh and Thomas Joo which was published by the Virginia Law Review Online in October 2015.

[52] The piece by Professors Joh and Joo can be found here.

[53] Please also see Professor Garrett’s longer article on this subject here.