Please read this abstract of the article, then click below for the full thing:
Recent financial scandals and the relative paucity of criminal prosecutions inresponse suggest a new reality in the criminal law system: some wrongful actors appear above the law and immune from criminal prosecution. As such, the criminal prosecutorial system affirms much of the wrongdoing giving rise to the crisis. Thisleaves the same elites undisturbed at the apex of the financial sector, and creates perverseincentives for any successors. Further, this undermines the legitimacy of the rule of lawand encourages even more lawlessness among the entire population. These considerationstranscend deterrence as well as retribution as a traditional basis for criminal punishment.Affirmance is far more costly and dangerous with respect to the crimes of powerful elitesthat control large organizations than can be accounted for under traditional nations of deterrence. Few limits are placed on a prosecutor’s discretionary decision about whom to prosecute, and many factors against prosecution are available, especially in resource-intensive white collar crime prosecutions. This article asserts that prosecutors should notexercise that discretion without considering its potential affirmance of crime.
