A. General Principle: Prosecutors should consider whether non-criminal alternatives would adequately deter, punish, and rehabilitate a corporation that has engaged in wrongful conduct. In evaluating the adequacy of non-criminal alternatives to prosecution—e.g., civil or regulatory enforcement actions—the prosecutor should consider all relevant factors, including:

1. 1. the sanctions available under the alternative means of disposition;
2. 2. the likelihood that an effective sanction will be imposed; and
3. 3. the effect of non-criminal disposition on federal law enforcement interests.

B. Comment: While non-criminal sanctions may not be appropriate where a serious violation, pattern of wrongdoing, or prior non-criminal sanctions without proper remediation have occurred, there may be other instances where the goals of punishment, deterrence and rehabilitation may be satisfied through civil or regulatory actions against the corporation. In determining whether the most appropriate resolution for a corporation is a criminal resolution or a civil or regulatory resolution, prosecutors and their civil counterparts should confer and consider factors similar to those considered when determining whether to leave prosecution of a natural person to another jurisdiction or to seek civil or other regulatory alternatives. These factors include: the strength of the civil or regulatory authority's interest; the civil or regulatory authority's ability and willingness to take effective enforcement action; the probable sanction if the civil or regulatory authority's enforcement action is upheld; the effect of a non-criminal disposition on criminal law enforcement interests; and the interests of any victims or others significantly harmed. See JM 9-27.240, 9-27.250, JM 9-28.1400, and the Attorney General Guidelines for Victim and Witness Assistance. In order to make possible a consideration of the full range of the government’s remedies and promote the most thorough and appropriate resolution in every case, criminal prosecutors handling corporate investigations should maintain early and regular communication with their civil counterparts and regulatory attorneys, to the extent permitted by law, and even if it is not certain whether the end result will be a civil or criminal disposition, or both. See JM 1-12.000.

[updated March 2023]