Prosecutors discretionary authority in efficient law enforcement systems

Søreide, Tina; Vagle, Kasper

doi:10.4337/9781788970419.00015

Cited by 3 publications

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“…Absence of such information may increase the use of settlements, because defendants choose to accept a settlement caused by the uncertainty of legal practice. 19 In jurisdictions without judicial review of settlements, the prosecutor has broad freedoms when applying the law (Søreide and Vagle 2020). If that means the proportionality between the offense and the sanction becomes more blurred, it easily reduces the predictability across cases, and this is especially a problem when there is little public information about the cases and enforcement outcomes.…”

Section: Results and Implicationsmentioning

confidence: 99%

“…The United States is among the OECD countries that grant their prosecutors high degree of discretionary authority. Søreide and Vagle (2020) examine the extent of discretion available to the prosecutors in 66 countries. 36 As more FCPA cases are brought by the SEC and DOJ, however, the guidelines for US prosecutors develop in greater detail, which has decreased the prosecutor's discretion.…”

Section: Indicators Of a Sanction Gap In The United Statesmentioning

confidence: 99%

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Settlements in corporate bribery cases: an illusion of choice?

Søreide

Vagle

2022

Eur J Law Econ

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Despite prosecutors’ difficulties in proving corporate bribery, nearly all enforcement actions end with a settlement at the pretrial stage. Compared to court proceedings, settlement-based enforcement provide prosecutors with flexibility to reward offenders’ self-reporting and cooperation, and reach quicker conclusions to complex cases. In this article, we explain, such enforcement needs regulation to minimize potentially harmful side-effects. When the difference between a court and settlement sanction exceeds a certain size, the alleged offender accepts a settlement regardless of actual responsibility of misconduct. For the prosecutor, the option of offering a lenient settlement means weaker incentives to ascertain the material facts of the case. Society receives less information about the blameworthy act, little opportunity to evaluate the sanction, and less reason to expect sanctions to deter bribery. We show why such consequences result in under-deterrence of bribery and weaker rule of law. The use of settlement may have a self-escalating effect because the enforcement mode can reduce the predictability of the law, while a defendant’s inclination to accept a settlement offer depends on the predictability of the law. Our results suggest that United Kingdom’s current escalation of enforcement of corporate bribery laws will lead to a mixture of settlements and court decisions, while in the United States firms will continue to negotiate settlements as if there were no opportunity to have their cases tested in court.

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Section: Results and Implicationsmentioning

confidence: 99%

Section: Indicators Of a Sanction Gap In The United Statesmentioning

confidence: 99%

Settlements in corporate bribery cases: an illusion of choice?

Søreide

Vagle

2022

Eur J Law Econ

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“…42 For insight into such variations across the five case countries, we consider the results of a recent survey of regulatory regimes for non-trial resolutions in corporate bribery cases, conducted by the International Bar Association for 66 countries. These data were used to construct a Prosecutor Discretion Index (Søreide & Vagle, 2020). PDI scores for our five case countries are shown in Table 2.…”

Section: Predictability Of Sanctions and Leniencymentioning

confidence: 99%

“…Prosecutor discretionary authority in corporate bribery cases across the case countriesThe Prosecutor Discretionary Index(Søreide and Vagle 2020), shown in the data column on the far left, presents the arithmetical average of the scores in the other four columns. The lower the score, the less flexibility there is for prosecutors who enforce corporate liability by means of non-trial resolutions…”

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confidence: 99%

Corporate Criminals in a Market Context: Enforcement and Optimal Sanctions

2022

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Corporate criminals in a market context: enforcement and optimal sanctions

Auriol,

Hjelmeng,

Søreide

2023

Eur J Law Econ

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By combining approaches from the economic theory of crime and of industrial organization, this paper analyzes optimal enforcement for three different forms of corporate misconduct that harm competition. The analysis shows why corporate crime is more harmful in large markets, why governments have a disinclination to sanction firms whose crime materializes abroad, and why leniency for those who self-report their crime is a complement, and not a substitute, to independent investigation and enforcement. As public authorities rely increasingly on self-reporting by companies to detect cartels, the number of leniency applications is likely to decline, and this is borne out by data. Upon a review of 50 cases of corporate liability from five European countries, competition law enforcement, governed by a unified legal regime, is more efficient than enforcement in bribery and money laundering cases, governed by disparate criminal law regimes. Sanction predictability and transparency are higher when governments cooperate closely with each other in law enforcement, when there are elements of supra-national authority, and when the offense is regulated by a separate legal instrument. Given our results, Europe would benefit from stronger supra-national cooperation in regulation and enforcement of transnational corporate crime, especially for the sake of deterrent penalties against crime committed abroad.

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Prosecutors discretionary authority in efficient law enforcement systems

Cited by 3 publications

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Settlements in corporate bribery cases: an illusion of choice?

Settlements in corporate bribery cases: an illusion of choice?

Corporate Criminals in a Market Context: Enforcement and Optimal Sanctions

Corporate criminals in a market context: enforcement and optimal sanctions

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