Too Vast to Succeed
Miriam H. Baer*
If sunlight is, in Justice Brandeis’s words, “the best of disinfectants,” then Brandon Garrett’s latest book, Too Big to Jail: How Prosecutors Compromise with Corporations might best be conceptualized as a heroic attempt to apply judicious amounts of Lysol to the murky world of federal corporate prosecutions. “How Prosecutors Compromise with Corporations” is the book’s neutral- sounding secondary title, but even casual readers will quickly realize that Garrett means that prosecutors compromise too much with corporations, in part because they fear the collateral consequences of a corporation’s criminal indictment. Through an innovation known as the Deferred Prosecution Agreement, or DPA, prosecutors reach extrajudicial contractual agreements with corporations. Although prosecutors have long touted the transformative potential of these agreements, Garrett concludes that their benefits are often superficial and short-lived. Moreover, prosecutors negotiate these compromises with little oversight or accountability. Even worse, this overly soft approach toward entities has infected prosecutorial resolve to prosecute individual offenders, thereby enabling corporate managers to escape liability for their criminal wrongdoing. No wonder, then, that Garrett perceives a grievous accountability gap in the corporate crime landscape.
* Professor of Law, Brooklyn Law School; Assistant U.S. Attorney, Southern District of New York, 1999–2004; Assistant General Counsel of Compliance, Verizon, 2004–2005. I have discussed different aspects of this book in a shorter online review for the Rutgers Criminal Law and Criminal Justice Books website, http://clcjbooks.rutgers.edu/. I thank Stuart Green for inviting me to review this book for that site. Many thanks are due as well to Sam Buell, Sean Griffith, and Dan Richman for their thoughts on this piece, as well as Brandon Garrett’s gracious support of this project. All errors are of course my own.