The Project On Government Oversight (POGO) revealed in August that top political appointees at the Justice Department’s headquarters in Washington, DC, overruled career federal prosecutors who sought to bring a felony charge against biotech giant Monsanto for illegally spraying a highly toxic pesticide in Hawaii. This happened after attorneys for Monsanto, including a former head of the department’s criminal division, appealed for a review. When such appeals—which happen behind closed doors—are successful, they have played a part in what is widely seen as the Justice Department’s lenient approach to corporate crime.
As POGO wrote, this wasn’t the only case where appeals from corporate defense attorneys to department headquarters—often referred to as Main Justice—played a role in overruling or delaying prosecutors’ decisions.
Since the financial crisis a decade ago, many have opined that the department has been too soft on corporations and their executives when they break the law. More recently, prosecution trends have taken a downward turn. Justice Department data show white-collar prosecutions in fiscal year 2019 are approaching an all-time low number of annual prosecutions since those records were first collected in the mid-1980s, according to the nonprofit Transactional Records Access Clearinghouse (TRAC), which analyzed the data. (David Burnham, a co-director of TRAC, is a former POGO board member.)
While there may be many reasons for the decline, Duke University law school professor Samuel Buell has argued there is a connection between appeals to Main Justice and lenient corporate crime enforcement. Buell was the lead prosecutor for the federal government’s Enron Task Force. That task force obtained convictions of the company’s executives in the wake of Enron’s disastrous collapse in the early 2000s.
On balance, the exercise of prosecutorial discretion and the ability of potential defendants to make their case before the Justice Department charges them are positive aspects of the federal justice system. But everyone facing potential charges must have fair and equitable access to the Justice Department, including to its higher levels, in requesting reviews of charging decisions. The following reforms would create a more transparent and standardized process, which would benefit the department, potential defendants, those overseeing the department, and the public at large:
The Justice Department should craft and publish written guidance detailing under what general circumstances it will hear pre-charge appeals regarding prosecutorial decisions, the process that will be followed, criteria for reversing prosecutorial decisions, and other relevant information. In crafting this policy, the department should consult with experts, involving a diverse group of stakeholders including those with experience in criminal defense and public defense. It should follow a transparent process by sharing a draft for public comment and, after receiving comments, explaining publicly its reasons for adopting or rejecting suggestions.
The Justice Department should publish data annually on the frequency of instances in which Main Justice has reviewed prosecutorial decisions at the request of defense counsel and the outcome of those reviews. The department should consult with experts, including a diverse group of stakeholders, in crafting this transparency policy, with consideration to mitigating undue external interference in department decision-making.
The Justice Department should return to its previous practice of providing information on the more specific reasons for declining prosecution of cases, in response to Freedom of Information Act requests.