Prosecutorial liability and prosecuting corporate agents

Larry Ribstein —  4 May 2011

Retired Justice Stevens has some interesting comments on  Connick v. Thompson, reported here. Connick, by a 5-4 conservative/liberal vote, reversed the Fifth Circuit’s affirmance of a $14 million verdict to a man imprisoned on death row for 14 years after prosecutors failed to turn over exonerating evidence.  The Court held that you need a pattern of misconduct to hold the prosecutor’s office responsible, and in this case it wasn’t enough to show a single instance.

Stevens notes prosecutors’ political incentives to convict, which he argues need to be disciplined by vicarious liability — just like in the private sector. 

This interested me because my paper, Agents Prosecuting Agents, raises similar questions about dissonance between the over-prosecution of private sector agent misconduct by prosecutors who are subject to similar misincentives.

But I doubt this problem will be solved by more litigation. Even if the Court had affirmed in Connick, this still would have left a pretty restrictive rule against entity liability of prosecutors’ offices.  It is unlikely courts will come to place the same restrictions on government that government routinely places on businesses.

In crimes like the one defendant Thompson allegedly committed — robbery — this leaves us in the unfortunate position of having to choose between maintaining robust government incentives to prosecute and diluting the criminal law in a situation in which it’s clearly appropriate.

But as I argue in my paper, this is not necessarily the case with respect to the criminalization of corporate agency costs.  Here civil liability and other mechanisms may be enough, and criminal prosecutions involve several problems that are unique prosecutions in complex business organizations.

Thus, my paper suggests that one way to address the problem is to reduce the criminalization of agency costs.  In other words, as my paper concludes, “we should not assume that it is socially valuable to use the criminal laws to ensure totally loyal corporate agents unless we are ready to demand similar perfection from our prosecutors.”

Larry Ribstein

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Professor of Law, University of Illinois College of Law