The Humane Way That U.S. Courts Treat Corporations

A legal strategy designed to provide people with second chances is instead being used to protect businesses.

Yannis Behrakis / Reuters

In the late 1960s, two cities—New York and Washington, D.C.—piloted programs that intervened following an arrest for a nonviolent crime. They offered a mix of counseling, job placement and training, and education. Once a defendant was enrolled in the program, prosecution would be delayed for a certain amount of time. If, during that time, the defendant reformed, charges were dismissed. The idea was simple: Give people a second chance before an arrest turns into a conviction, which turns into jail-time, which turns into a lifetime of poverty and lost opportunities.

These programs were successful and in the mid-1970s the federal government encoded that wisdom into its laws. The Speedy Trial Act contained an exemption that allowed for defendants to defer prosecution for nonviolent offenses “pursuant to written agreement with the defendant, with the approval of the court, for the purpose of allowing the defendant to demonstrate his good conduct.”

Today, that exemption is being put to good use … by corporations, which agree to certain reforms such holding ethics seminars or hiring compliance officers. But human defendants—the defendants for whom it was intended—do not often find themselves the recipient of its generosity.

This is the argument of the federal judge Emmet Sullivan, who wrote last week, “Deferred-prosecution agreements appear to be offered relatively sparingly to individuals, and instead are used proportionally more frequently to avoid the prosecution of corporations, their officers, and employees.”

Sullivan wasn’t arguing that the exemption shouldn’t be applied to corporations. “Congress provided the deferred-prosecution tool without limiting its use to individual defendants or to particular crimes,” he wrote. But, he said, he was “disappointed that deferred-prosecution agreements or other similar tools are not being used to provide the same opportunity to individual defendants to demonstrate their rehabilitation without triggering the devastating collateral consequences of a criminal conviction.”

He concluded:

The Court is of the opinion that people are no less prone to rehabilitation than corporations. Drug conspiracy defendants are no less deserving of a second-chance than bribery conspiracy defendants. And society is harmed at least as much by the devastating effect that felony convictions have on the lives of its citizens as it is by the effect of criminal convictions on corporations. Extending the use of deferred-prosecution agreements to individuals who are charged with certain nonviolent offenses would be a powerful tool to achieve one of the goals proposed by President Obama this year: “give judges some discretion around nonviolent crimes so that, potentially, we can steer a young person who has made a mistake in a better direction.”

In other words: Treat the humans as humanely as the corporations.