Under Trump, corporate criminals were above the law. Biden can change that

Imagine someone taints meals in four states over three years until they’ve sickened over 1,100 people.

Imagine someone else steals millions of dollars from millions of people through a nationwide scheme of fraud and identity theft that lasts more than 10 years.

Imagine someone else cheats a foreign medical system out of millions by bribing doctors to prescribe the drug the cheater is selling instead of a lower-cost alternative.

Imagine all three criminals are caught.

Then imagine that, after the crimes were investigated and the criminals were brought before President Trump’s supposedly “tough on crime” Department of Justice, the department decided not to prosecute.

That’s exactly what Trump’s DOJ did.

Leniency agreements

The explanation: the “someones” in all three cases were major corporations — Chipotle, Wells Fargo, and Novartis. They are just a few examples among the 45 times the DOJ concluded criminal cases against corporations with leniency agreements instead of prosecutions in fiscal year 2020.

This represents an increase of 73% over 2019’s 26 leniency agreements and makes 2020 the year with the highest number of these agreements over the four years of Trump’s presidency.

These leniency agreements — deferred prosecution agreements and nonprosecution agreements — originated as a smart, merciful alternative to prosecuting young people accused of low-level offenses. The idea was to keep first-time offenders out of jail and to give them a second chance.

Now federal prosecutors primarily use these leniency agreements to protect corporations from punishment.

As a result, federal prosecutions of corporate criminals plummeted in 2020 to a quarter-century low of just 94, according to data released by the U.S. Sentencing Commission. This is the lowest number since the government started tracking the data in 1996 and a decline of 20% from 118 in 2019. The previous low was 99 in 2018.

Because of the simultaneous trends of plunging prosecutions and rising leniency agreements, these deals made up nearly one-third (32%) of resolutions of federal cases against corporations accused of crimes. This is the highest the percentage has ever been in the last quarter-century. Two decades ago, prosecutors entered leniency agreements with corporate criminals only about 1% of the time.

Remember, Trump’s Justice Department was infamous for pursuing a cruel “tough on crime” approach to immigrants and low-level offenders.

Deputy Attorney General Rod Rosenstein reportedly told prosecutors to bring immigration cases against families with young children – the “zero tolerance” anti-immigration policy that resulted in federal agents separating thousands of immigrant children from their parents, hundreds of which were never reunited.

Attorney General Jeff Sessions instructed prosecutors to pursue maximum charges against nonviolent drug offenders.

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Attorney General William Barr reportedly told prosecutors to consider bringing criminal sedition charges against Black Lives Matter protesters – and reportedly considered bringing charges against Seattle’s mayor for resisting harsh enforcement against protests. Also, there were more federal executions under Trump than under the previous ten presidents combined because of Barr.

The DOJ’s cruelty to low-level offenders looks even worse when juxtaposed with its leniency to corporate offenders, sending the unmistakable message that the powerful are above the law. It is not, as Trump likes to say, “law and order.” It is two-tiered justice.

Rolling back Trump-era policies now

In order to serve and protect the public, the Department of Justice must engage in robust reforms to protect Americans from corporate criminals and assert that no one is above the law – not even the biggest businesses or most well-connected executives.

Priority number one must be to rescind the Trump-era policies that eased enforcement against corporate wrongdoers. The good news is, Biden’s DOJ has already made this a priority, and started rolling back soft-on-corporate-crime policies even before Attorney General Merrick Garland was confirmed.

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The next step is more difficult but no less essential: strengthen the DOJ’s ability to hold corporate criminals accountable. Among the top priority reforms the DOJ should implement quickly are ending the practice of negotiating leniency agreements with corporations and reasserting the priority of holding individual executives accountable.

The Biden administration has a duty to begin the hard work of restoring the American public’s faith in justice. If we are to move forward from rampant impunity among the most powerful and well-connected, a strong, no-nonsense approach to corporate accountability will be essential.

Rick Claypool is the research director for Public Citizen's president's office.

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This article originally appeared on USA TODAY: Trump's Department of Justice went easy on corporate criminals