In the United States, corporate criminal liability has developed and evolved over time as a response to growth of corporate economic power and the resulting public policy concerns. Most recently, the Department of Justice announced a new development that was articulated in Deputy Attorney General Sally Yates’ Memo, Individual Accountability for Corporate Wrongdoing. The new policy implements pragmatic procedures for investigating and prosecuting both individuals and corporations for corporate wrongdoing, and reflects the public’s desire for individual accountability, corporate culpability, and the need for equal justice.
This Article discusses the importance of the Yates Memo in the historic framework of corporate criminal liability, and argues that it employs utilitarian and pragmatic approaches to the development of corporate criminal liability, while also acknowledging the need for individual accountability. The Author explains that the acknowledgment for individual accountability is a new element of corporate criminal liability and that it serves two important functions: deterrence and reform of corporate practices under the utilitarian approach, and public demand for prosecutorial policies that give no preferential treatment to white‐ collar offenders. However, the Author suggests that two problems arise with this policy development: it is difficult to successfully prosecute individuals for criminal conduct in the corporate setting, and it is questionable how much of the conduct is even criminal, rather than civil. Finally, the Author explores the relationship between prosecutorial policies and public opinion, concluding that it is difficult to determine how much prosecutorial policy should reflect public opinion when it is continuously shifting and distorted by the media.