It’s a commonplace to recognise that the power of corporate actors is often invoked as a justification for their lenient treatment. After all, if the government takes action against them then everyone will suffer. But I didn’t realise this had been formally expressed, in the notion of collateral consequences put forward by Eric Holder, during the Clinton administration:
One of the factors in determining whether to charge a natural person or a corporation is whether the likely punishment is appropriate given the nature and seriousness of the crime. In the corporate context, prosecutors may take into account the possibly substantial consequences to a corporation’s officers, directors, employees, and shareholders, many of whom may, depending on the size and nature (e.g., publicly vs. closely held) of the corporation and their role in its operations, have played no role in the criminal conduct, have been completely unaware of it, or have been wholly unable to prevent it.
It was a superficially plausible doctrine, offering a needed justification for refusing to prosecute cases that would obviously do more harm than good. Its point was not inaction but alternatives. However as Matt Taibi puts it The Divide, in reality this offered a get out of jail free card for the corporations which came later, by the time he served under Obama.
Mark Carrigan 