Factors to Be Considered

A. General Principle:

Generally, prosecutors apply the same factors in determining whether to charge a corporation as they do with respect to individuals.

See

JM 9-27.220 et seq.

Thus, the prosecutor must weigh all of the factors normally considered in the sound exercise of prosecutorial judgment: the sufficiency of the evidence; the likelihood of success at trial; the probable deterrent, rehabilitative, and other consequences of conviction; and the adequacy of noncriminal approaches.

See id.

However, due to the nature of the corporate “person,” some additional factors are present. In conducting an investigation, determining whether to bring charges, and negotiating plea or other agreements, prosecutors should consider the following factors in reaching a decision as to the proper treatment of a corporate target:

the nature and seriousness of the offense, including the risk of harm to the public, and applicable policies and priorities, if any, governing the prosecution of corporations for particular categories of crime (

see

JM 9-28.400

);

the pervasiveness of wrongdoing within the corporation, including the complicity in, or the condoning of, the wrongdoing by individuals in corporate management (

see

JM 9-28.500

);

the corporation’s history of misconduct, including prior criminal, civil, and regulatory enforcement actions against it, both domestically and internationally (

see

JM 9-28.600

);

the corporation’s willingness to cooperate, including as to potential wrongdoing by its current and former employees, directors, officers, and agents, as well as other individuals and entities that engaged in the misconduct under investigation (

see

JM 9-28.700

);

the adequacy and effectiveness of the corporation’s compliance program at the time of the offense, as well as at the time of a charging decision (

see

JM 9-28.800

);

the corporation’s timely and voluntary self-disclosure of wrongdoing (

see

JM 9-28.900

);

the corporation’s remedial actions, including, but not limited to, any efforts to implement an adequate and ef

nvestigation (

see

JM 9-28.700

);

the adequacy and effectiveness of the corporation’s compliance program at the time of the offense, as well as at the time of a charging decision (

see

JM 9-28.800

);

the corporation’s timely and voluntary self-disclosure of wrongdoing (

see

JM 9-28.900

);

the corporation’s remedial actions, including, but not limited to, any efforts to implement an adequate and effective corporate compliance program or to improve an existing one, to replace responsible management, to discipline or terminate wrongdoers, to execute financial compensation measures that punish wrongdoing, or to pay restitution (

see

JM 9-28.1000

);

collateral consequences, including whether there is disproportionate harm to shareholders, pension holders, employees, and others not proven personally culpable, as well as impact on the public arising from the prosecution (

see

JM 9-28.1100

);

the adequacy of remedies such as civil or regulatory enforcement actions, domestically or internationally, including remedies resulting from the corporation’s cooperation with relevant government agencies (

see

JM 9-28.1200

);

the adequacy of the prosecution of individuals responsible for the corporation’s misconduct (

see

JM 9-28.1300

); and

the interests of any victims (

see

JM 9-28.1400

), including what steps the corporation has taken to identify potential victims, or other persons or entities who were significantly, even if indirectly, harmed by the criminal conduct, and what steps the corporation has taken to mitigate such harm.

the prosecution of individuals responsible for the corporation’s misconduct (

see

JM 9-28.1300

); and

the interests of any victims (

see

JM 9-28.1400

), including what steps the corporation has taken to identify potential victims, or other persons or entities who were significantly, even if indirectly, harmed by the criminal conduct, and what steps the corporation has taken to mitigate such harm.

B. Comment:

The factors listed in this section are intended to be illustrative of those that should be evaluated and are not an exhaustive list of potentially relevant considerations. Some of these factors may not apply to specific cases, and in some cases one factor may override all others.  For example, the nature and seriousness of the offense may be sufficiently aggravating to warrant prosecution regardless of the other factors.  In most cases, however, no single factor will be dispositive.  In addition, national law enforcement policies in various enforcement areas may require that more or less weight be given to certain of these factors than to others.  Of course, prosecutors must exercise their thoughtful and pragmatic judgment in applying and balancing these factors, so as to achieve a fair and just outcome and promote respect for the law.

[updated May 2024]