A. General Principle: Corporations should not be treated leniently because of their artificial nature nor should they be subject to harsher treatment. Vigorous enforcement of the criminal laws against corporate wrongdoers, where appropriate, results in great benefits for law enforcement and the public, particularly in the area of white collar crime. Holding corporations accountable for wrongdoing enables the government to be a force for positive change of corporate culture, and a force to prevent, discover, and punish serious crimes.

B. Comment: There is no DOJ policy establishing a presumption against or in favor of seeking an indictment against a corporation. Rather, in all cases involving corporate wrongdoing, prosecutors should consider each of the factors discussed in these guidelines in determining whether to charge a corporation or enter into a corporate resolution, including the appropriate structure and form of a resolution, the monetary penalty, compliance terms, and other provisions.[1] In doing so, prosecutors should be aware of the public benefits that can flow from charging a corporation in appropriate cases. For instance, corporations are likely to take immediate remedial steps when another corporation is charged with criminal misconduct that is pervasive throughout a particular industry, and thus an criminal charges can provide a unique opportunity for deterrence on a broad scale. In addition, a corporate prosecution may result in specific deterrence by changing the culture of the charged corporation and the behavior of its employees. Finally, certain crimes that carry with them a substantial risk of great public harm—e.g., environmental crimes or sweeping financial frauds—may be committed by a business entity, and there may therefore be a substantial federal interest in charging a corporation under such circumstances.

In certain instances, it may be appropriate to resolve a corporate criminal case by means other than an indictment or pre-indictment guilty plea. Non-prosecution and deferred prosecution agreements, for example, occupy an important middle ground between declining prosecution and obtaining the conviction of a corporation. These agreements are discussed further in JM 9-28.1100 (Collateral Consequences). Likewise, civil and regulatory alternatives may be appropriate in certain cases, as discussed in JM 9-28.1200 (Civil or Regulatory Alternatives).

Prosecutors have substantial latitude in determining when, whom, how, and even whether to prosecute for violations of federal criminal law. In exercising that discretion, prosecutors should consider the following statements of principles that summarize the considerations they should weigh and the practices they should follow in discharging their prosecutorial responsibilities. Prosecutors should ensure that the general purposes of the criminal law—appropriate punishment for the defendant, deterrence of further criminal conduct by the defendant, deterrence of criminal conduct by others, protection of the public from dangerous and fraudulent conduct, rehabilitation, and restitution for victims—are adequately met, taking into account the special nature of the corporate "person."

When the Department enters into a plea agreement, a deferred prosecution agreement, or a non-prosecution agreement to resolve corporate criminal liability, the agreement should, to the greatest extent possible, include: (1) an agreed-upon statement of facts outlining the criminal conduct that forms the basis for the agreement; and (2) a statement of relevant considerations that explains the Department's reasons for entering into the agreement. Relevant considerations may, for example, include: the corporation’s voluntary self-disclosure (or any self-reporting) to the Department, cooperation with the Department’s investigation, and remedial efforts (or lack thereof); the basis for and extent of cooperation credit, if any, that the corporation is receiving; the seriousness and pervasiveness of the criminal conduct; the corporation’s history of misconduct; the state of the corporation’s compliance program at the time of the underlying criminal conduct and at the time of the resolution; the reasons for imposing an independent compliance monitor or any other compliance undertaking, if applicable; other relevant factors listed in JM § 9-28.300; and any other key considerations related to the Department's decision regarding the resolution. Absent exceptional circumstances, corporate criminal resolution agreements will be published on the Department's public website.

[updated April 2023]

[1] While these guidelines refer to corporations, they apply to the consideration of the prosecution of all types of business organizations, including partnerships, sole proprietorships, government entities, and unincorporated associations.