Two Systems of Justice: How Corporate America Learned to Commit Crime Without Consequence
Consider two scenarios. In the first, a man in Detroit steals $400 from a convenience store. He is arrested, charged, prosecuted, and — if convicted — faces a mandatory minimum sentence that could imprison him for years. In the second, a financial services company in Manhattan defrauds thousands of retirement account holders out of tens of millions of dollars. The company enters into a deferred prosecution agreement, pays a fine that amounts to a fraction of its annual revenue, and its senior leadership returns to the office on Monday morning.
Both scenarios describe crimes. Only one of them reliably produces a prison sentence.
This is not a hypothetical contrast designed to provoke outrage. It is an accurate description of how American criminal justice operates along the axis of economic class — a fault line that runs through every level of the system, from the initial charging decision to the final resolution of a case. The machinery that grinds hardest on the poor operates with extraordinary delicacy around the wealthy, and nowhere is that contrast more stark than in the treatment of white-collar and corporate crime.
The Deferred Prosecution Agreement: Justice Deferred Indefinitely
The deferred prosecution agreement, or DPA, is the legal instrument most emblematic of the two-tiered system. Under a DPA, the Department of Justice agrees to suspend criminal charges against a corporation — not drop them, but suspend them — in exchange for the company paying a financial penalty, submitting to a monitoring period, and agreeing to implement internal reforms. If the company complies with the agreement's terms, the charges are eventually dismissed entirely.
On paper, this sounds like a reasonable mechanism for holding large organizations accountable without the collateral damage that a full criminal conviction might impose on employees, shareholders, and the broader economy. In practice, it has become a reliable escape hatch.
Between 2000 and 2023, the DOJ entered into hundreds of DPAs and non-prosecution agreements with major corporations. The financial penalties attached to these agreements are routinely described in press releases using words like record-breaking and historic. What those descriptions rarely include is the context: that the fines, however large in absolute terms, frequently represent a small percentage of the company's profits during the period of misconduct — a cost of doing business rather than a meaningful deterrent.
JPMorgan Chase, for instance, has entered into multiple DPAs across different investigative matters over the past two decades, accumulating billions of dollars in settlements while continuing to operate as one of the most profitable financial institutions on earth. The pattern is not unique to JPMorgan. It describes the experience of major banks, pharmaceutical companies, defense contractors, and technology firms with sufficient regularity to suggest that the DPA system, as currently constituted, functions less as an accountability mechanism and more as a liability management tool for organizations that can afford sophisticated legal counsel.
The Revolving Door and the Regulatory Capture Problem
Understanding why corporations receive this preferential treatment requires looking beyond the courtroom to the institutions that surround it. The relationship between federal regulatory agencies, the DOJ's criminal division, and the private law firms that represent major corporations is not an arms-length adversarial relationship. It is a network of professional relationships, shared career trajectories, and institutional incentives that subtly — and sometimes not so subtly — shapes enforcement priorities.
The revolving door between government enforcement positions and lucrative private practice is well documented. Prosecutors who build reputations pursuing corporate cases frequently depart for partnerships at the very firms that represent the companies they once investigated. Defense attorneys who spent years learning the government's enforcement strategies from the inside bring that knowledge to clients who can pay handsomely for it. The system is not corrupt in the transactional sense. It is something arguably more durable: structurally biased.
This dynamic reinforces what scholars of regulatory law call regulatory capture — the phenomenon by which the agencies and offices nominally responsible for policing an industry come to prioritize the industry's interests over the public interest. When the people making charging decisions know, professionally and socially, the people they are deciding whether to charge, the threshold for aggressive prosecution rises in ways that are difficult to quantify but easy to observe in outcomes.
Environmental Crime and the Accountability Gap
The disparity between corporate and street-level criminal justice becomes particularly acute in the context of environmental crime, where the scale of harm inflicted on communities — disproportionately low-income and minority communities — routinely dwarfs the consequences imposed on responsible parties.
The Flint water crisis, in which state and local officials knowingly exposed residents to dangerously elevated levels of lead for months while misrepresenting the safety of the water supply, resulted in a series of criminal charges that were ultimately dropped or resolved with plea agreements that avoided incarceration for most defendants. The residents of Flint, many of whom sustained irreversible neurological damage, received no meaningful criminal accountability from the state that poisoned them.
The pattern repeats across industries. Petroleum companies that contaminate groundwater, chemical manufacturers that illegally discharge into waterways, agricultural operations that violate Clean Water Act provisions — the enforcement record is one of civil penalties, consent decrees, and the occasional token prosecution that serves to demonstrate institutional seriousness without fundamentally altering corporate behavior.
Contrast this with federal mandatory minimums for drug offenses, under which an individual caught with a relatively small quantity of a controlled substance faces years of mandatory imprisonment regardless of the circumstances. The law's capacity for severity is not in question. Its selectivity is.
The Individual Executive and the Limits of Corporate Accountability
One of the most persistent criticisms of the DPA system is that it allows corporations to absorb financial penalties while shielding the individual executives who made the decisions that constituted criminal conduct. A company can pay a billion-dollar fine. No individual goes to prison. Shareholders bear the cost. Leadership continues.
The DOJ has periodically acknowledged this problem. The 2015 Yates Memo, issued by then-Deputy Attorney General Sally Yates, directed federal prosecutors to prioritize the identification and prosecution of individuals responsible for corporate wrongdoing. The policy generated considerable discussion and, ultimately, modest results. Prosecutions of senior corporate executives for conduct related to the 2008 financial crisis — which destroyed trillions of dollars in household wealth and resulted in millions of foreclosures — remain conspicuous by their absence.
The contrast with the savings and loan crisis of the 1980s is instructive. That episode of widespread financial fraud resulted in more than 1,000 criminal convictions of senior financial institution executives. The mechanisms existed. The political will, in the aftermath of 2008, did not materialize in the same way.
The Cost of Looking Away
The argument for the current system rests on economic pragmatism: that aggressively prosecuting corporations creates collateral harm to innocent employees, investors, and the broader market. It is not an argument without merit. But it is an argument that is applied selectively — never invoked on behalf of the low-income communities destabilized by mass incarceration, never raised when mandatory minimums destroy families whose breadwinners are imprisoned for nonviolent drug offenses.
A justice system that calibrates its severity based on the economic resources and political connectivity of the defendant is not a justice system in any meaningful sense. It is a mechanism for the reproduction of existing hierarchies, dressed in the language of law.
The criminal class, it turns out, is not defined by the crimes committed. It is defined by who gets treated as a criminal when the evidence is on the table. At Criminal Class Press, we believe that truth requires naming that distinction plainly — and holding it in view until something changes.
