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Too Vast to Succeed


If sunlight is, in Justice Brandeis’s words, “the best of disinfectants,” then Brandon Garrett’s latest book, Too Big to Jail: How Prosecutors Compromise with Corporations might best be conceptualized as a heroic attempt to apply judicious amounts of Lysol to the murky world of federal corporate prosecutions. “How Prosecutors Compromise with Corporations” is the book’s neutral- sounding secondary title, but even casual readers will quickly realize that Garrett means that prosecutors compromise too much with corporations, in part because they fear the collateral consequences of a corporation’s criminal indictment. Through an innovation known as the Deferred Prosecution Agreement, or DPA, prosecutors reach extrajudicial contractual agreements with corporations. Although prosecutors have long touted the transformative potential of these agreements, Garrett concludes that their benefits are often superficial and short-lived. Moreover, prosecutors negotiate these compromises with little oversight or accountability. Even worse, this overly soft approach toward entities has infected prosecutorial resolve to prosecute individual offenders, thereby enabling corporate managers to escape liability for their criminal wrongdoing. No wonder, then, that Garrett perceives a grievous accountability gap in the corporate crime landscape.