The Deal for Corporate Mercy
Introduction
When an individual commits a crime, the law does not typically reward him for confessing to it. Corporations face a different standard.
In March 2026, the Department of Justice (DOJ) announced its first-ever Department-wide Corporate Enforcement and Voluntary Self-Disclosure Policy. This policy provides a framework according to which a company that voluntarily reports misconduct, fully cooperates with an investigation, and remediates the misconduct adequately can be rewarded, in certain circumstances, with a declination from prosecution.¹
The DOJ policy reflects a simple insight: the government can sometimes most effectively punish corporate crime by encouraging corporations to identify and remedy their own misconduct.
But that raises a troubling question, Should a corporation truly be rewarded for confessing to a crime, and is doing so the right thing?
The Corporate Defendant
The United States allows corporations to be punished for crimes even though they are, technically speaking, people incapable of thinking, feeling, or acting. Under the federal doctrine of respondeat superior, corporations are vicariously responsible for the acts of their agents, provided the agents acted within the scope of authority and with at least some subjective intent to benefit the corporation.²
That leaves the federal government with a unique problem: investigating a corporation may require interrogating dozens of individuals while wading through thousands of pages of documentation detailing years of potentially illegal activity. A prosecutor, however, cannot simply ask one person whether he knows about the rest and accept his word for it. The corporation itself may know what has occurred, which is why cooperation is so important.
The Government’s Bargain
The DOJ policy essentially puts this deal on the table: in exchange for voluntarily disclosing the misconduct to the appropriate component of the DOJ, fully cooperating with the investigation, remedying the damage adequately and promptly, and the absence of any aggravating factors not enumerated in the policy, the Department will decline to prosecute the corporation.¹
It is important to note that the DOJ does not declare corporations not guilty under this policy - the company simply does not get prosecuted. After all, the government has no illusions about being able to prevent corporate crime by rewarding confession. The new policy is an attempt to shift the focus of an investigation from the corporation as a whole to the individuals who committed the acts that led to it.
As the DOJ noted when announcing the policy, corporate self-disclosure can allow prosecutors to better pursue those responsible for the misconduct, compensate affected parties, and deter further issues while letting responsive corporations avoid unwarranted consequences.¹
The Case for Self-Reporting
The most compelling argument in favor of the policy is entirely pragmatic: unless a corporation discovers and reports the misconduct on its own, a prosecutor may not have enough information to build a robust case. Even if the company realizes that the government can eventually convict it no matter what, it may not wish to be the ones to admit guilt and accept punishment. After all, most corporations do want to avoid steep monetary penalties and potential reputational damage. But a company that knows it can voluntarily report misconduct without facing prosecution and severe punishment is far more likely to do so than one that expects to be convicted either way. This can help prosecutors gain information about other potentially criminal activities that the company might have committed, as well as serve as a general deterrent for future misconduct.
Self-reporting can be a form of private enforcement for public law: a corporation can effectively assist the government in uncovering potential violations that the government might not have discovered without them.
Bosch Case Study
The Bosch case illustrates the point well. In June 2026, the DOJ announced the first declination under the new Corporate Enforcement Policy. Robert Bosch GmbH confessed to violating export control regulations and cooperated fully with the investigation. As a result, while the DOJ declined to prosecute the company, Bosch agreed to disgorge more than eleven million dollars in profits.³
As can be seen, the company was hardly off the hook: it had to give up profits related to the misconduct and cooperate with the investigation. The same conditions were imposed on Campus Eye Management following a self-disclosure in July 2026: after announcing alleged health care fraud, illegal kickbacks, and bribes, the company cooperated with the investigation and took steps to remediate the damage, and the DOJ declined to prosecute it.⁴
It is also important to note that a self-disclosure followed by a declination from prosecution does not necessarily mean that the company is getting off easy. A prosecutor investigating criminal conduct can impose steep penalties that serve as a warning for the future while still cooperating with the company in question in its efforts to identify and remediate the damage.
The Bosch case demonstrated that well - by announcing a declination while still fining the company, the DOJ discouraged potentially similar misconduct from occurring in the future.
The Case Against Corporate Mercy
A corporation can typically get far more support from its counsel than an ordinary citizen can. It has the resources to hire investigators, scrutinize its internal controls for weaknesses, examine its finances, and determine which laws it may have potentially violated before the government can. The average criminal defendant does not have such luxury. It is impossible to say with certainty that a given corporation is not exploiting DOJ’s Corporate Enforcement Policy to evade responsibility, particularly when it can afford to take those steps to minimize its potential liability.
The situation is exacerbated by the fact that a corporation may only realize that it has committed a crime after the government has already begun an investigation. This leaves room for the company to accuse the government of already knowing about the misconduct and therefore not deserving of a declination from prosecution. The DOJ policy addresses that concern by requiring voluntary disclosure and cooperation from the company - but determining whether such disclosure was voluntary is still a matter for the prosecution to decide.
Prosecuting a Corporation vs. People
Perhaps the most important reason to reconsider corporate criminal law is the fundamental difference between a corporation and an individual. While the former is a collective of people who serve a specific economic function, the latter is a single human being. A corporation cannot be imprisoned or serve time, be forgiven by a judge, or feel moral guilt - but a company is still responsible for its actions. As such, punishing a corporation can serve as punishment for the people who work there, particularly if they are shareholders, employees, or customers who were not involved in the crime.
By contrast, a corporation can be fined or placed under other restrictions that serve to punish those who put the company in a position to commit the misconduct. The problem with corporate criminal law is that it creates a fundamental tension between punishing a company for the wrongdoing of its employees and customers and punishing those employees who committed the crime in the first place.
The DOJ policy tries to mitigate this problem by encouraging corporations to cooperate with investigations into their own misconduct in order to identify those responsible.¹ According to this line of reasoning, the government can use a corporate confession as an opportunity to pursue those who committed the crime by exploiting the company’s compliance infrastructure.
The Importance of Compliance
It is a simple fact that a corporation that detects and reports misconduct early is likely to suffer fewer penalties than one that gets caught by regulators later. The ability to self-generate information about the company’s own misconduct helps a firm negotiate the consequences. As a result, compliance procedures can become immensely valuable to a firm even when they fail to prevent criminal activity entirely.
Through the DOJ policy, the government has built corporate compliance into the criminal law system. In essence, the rules require companies to follow their own procedures in order to prevent misconduct - and companies that do so are rewarded with less punishment when missteps do occur.
The system raises an interesting question about corporate criminal law: if a firm fails to detect misconduct because its compliance system failed, is the company truly innocent?
It is difficult to say with certainty in any given case, but the trend is undeniable: corporations can no longer expect to behave illegally with impunity, particularly if they are found to have had a system in place that was theoretically capable of detecting and preventing misconduct.
Why It Matters
The Corporate Confession demonstrates that the enforcement of white collar crime is not primarily concerned with punishment. It is concerned with rewards. The government wants companies to report misconduct before investigators find out about it. Firms, in turn, want to know exactly what will happen if they do. Prosecutors want information about the wrongdoers. Victims want restitution. All of these concerns are linked by the fact that voluntary company disclosures allow the government to accomplish multiple goals at once. However, the system must ensure that leniency does not become a justification for corporate misconduct. The value of the DOJ policy ultimately depends on whether the government’s desire to encourage corporate confession leads to rewards that only benefit the company - or whether it creates incentives for self-disclosure that also serve the public.
Conclusion
Corporate criminal law presents a unique challenge: the entity best positioned to assist an investigator in uncovering misconduct is also the one that the investigator is supposed to punish for it. The DOJ’s 2026 Corporate Enforcement Policy attempts to turn that challenge into an opportunity by encouraging companies to voluntarily disclose misconduct. By offering substantial rewards for such disclosures, the government hopes to deter future misconduct by making corporate confession a profitable endeavor.¹
The strategy is inherently sensible, as it allows the DOJ to rely on the resources and compliance infrastructure of the corporations it oversees to find and punish misconduct while reducing unwarranted exposure for the companies in question.
But it must balance that goal with an important risk: the potential for corporate misconduct to buy its way out of responsibility by paying for leniency. The ultimate test of the policy is whether companies that confess to misconduct and cooperate with investigators make life easier for law enforcement in its pursuit of those responsible.
U.S. Department of Justice, Department of Justice Releases First-Ever Corporate Enforcement Policy for All Criminal Cases (Mar. 10, 2026).
New York Central & Hudson River Railroad Co. v. United States, 212 U.S. 481, 494–95 (1909).
U.S. Department of Justice, National Security Division Announces First Declination Under the Department-wide Corporate Enforcement Policy (June 17, 2026). Bosch self-disclosed, cooperated, remediated, and agreed to disgorge $11,430,098 in profits.
U.S. Department of Justice, Fraud Division Resolves Fraud Investigation of Eye Care Group Under New Corporate Enforcement Policy; Health Care Executive Charged for Alleged Fraud and Kickbacks (July 29, 2026).
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