brandon is next on booktv. when doing with large corporations prosecutors favored the fines over jail time for corporate executives. this is about an hour and a half. welcome to the buck for him.

i would like to ask you all to silence your cell phones if not at least turn them off. we appreciate it. thank you for being with us today we do appreciate it. but prosecutors have increasingly turned to resolve investigations and corporate wrongdoing is that the criminal charges. in return for paying millions of dollars to the government is promising to make a cultural reform, prosecutors agreed to forgo the tribal. unlike the plea bargains the prosecution agreements are subject to the judicial oversight and details of these agreements are rarely made public. in part because of that while the agreements are the subject of substantial criticism from across the political spectrum they haven't been the subject of the research until quite recently. we are fortunate to be drawn by two experts in the field each of

whom devoted considerable attention to the problems posed by the prosecutions. the professor of law and the author of that is the result of a nearly decade-long project by professor garrett to build a database of all the corporate persecution convictions since early 2000 internet service to the community they made the database available online along the agreement. if you've read any of the research in this area it's really the only material out there. it's to the exoneration and one that may be a gavel award in the commentary on board. we will have to hear from james

copeland he's a senior fellow at the institute and the director of the center for legal policy. he has considerable background in the business as well as law and from yale and pastors. prior to joining the institute he was consulted as and served on the board of numerous private and public foundations. he spent the association of corporate directors and his work is regularly cited by "the new york times," "washington post," the economist and "the wall street journal". in the 2014 report released by the manhattan institute is titled shadow length and the continuing threat of regulation by prosecution.

i just want to take a moment to shamelessly plug this book. it is very good and the amount of research that is presented here to the last 100 pages or the appendix and the notes and there's an astonishing amount of information here as it never slows the book down. i don't know why that isn't a business book but it's in the business of book and thank you very much, professor garrett >> thank you so much. what i would like to do for 20, 25 minutes is give you kind of a walking tour of my book and my book begins with the sentences of i know what this is about and i've been expecting you. kind of a james bond type of movie this is the cover of the

book and this is the person who uttered those lines. i've been expecting this was in 2006 when the german police and law enforcement came knocking on the door we knew they were coming and he -- i dubbed him the banker as he dubbed himself that i was kind of a joke name and was doing accounting from the telecommunications editions and what he was thinking for tens of hundreds of millions of dollars that were being paid to secure contracts around the world. any corporate crime starts with a person and we will be returning to this case with an introduction to the complexities and many wrangles of the corporate prosecutions. and i would like to look at the larger data that was collected and can tell us about how the corporations are prosecuted and the fundamental has shifted so remarkably over the last ten years and even the last five

years. the banker has spoken a lot about the role in the case. under german law they know they aren't supposed to be around the world. they would have been the authorities but the investigation quickly shifted to the united states. we are now at the center for the many multinational prosecutions end and the investigation lasted for several years. the cases are not resolved quickly but for street crime cases. the lawyers at the law firm that they hired to investigate to try to sell uncovered about a

billion dollars in bribes paid all around the bribes paid all around the world for all sorts of different projects ranging from identity cards to the subway systems and they described it as the biggest foreign bribery case and it remains the biggest case in terms of dollars paid around the world that has ever been prosecuted in the united states. the company pleaded guilty. it was convicted. it's what happened at siemens and the statement of the fact is the named particular individual.

the guilty plea was entered in front of the judge in washington, d.c. down the street there was a hearing. the company had to waive its right and the lawyers basically had to say okay we've represent the company. we understand that the company has rights to the trial and present the evidence beyond a reasonable doubt so that they presented those rights and the company pleaded guilty. the judge in the case had some questions about the fine since the judge noted that under the sentencing guidelines this is a fine that could be asked to $2.7 billion. why it is only $550 million the prosecutors cited the extraordinary cooperation in spending so much time and money

to be that another large chunk of money being paid to the security exchange commission there's a $50 million really have was paid to the german investigators who had begun the investigation to the natural human state german company said this was more of a cooperative by national criminal investigation. the prosecutors said what we are not just trying to find this company would like to reform it and they promised to make extraordinary changes to make sure that this does not reoccur. we will tell you in a few minutes they were so happy with the monitoring of the agreed to continue even longer and establish all sorts of new compliance programs and we will help you figure out who did what and when and so it was quite a detailed plea agreement and the

company was agreeing to not just pay the fine and the presence of two continue to cooperate. they would be hearing what the company was doing. the company would in fact be on probation for four years. so here is how this case fits into the top 20 biggest corporate fines in terms of fine amounts through 2012 but in 2014 would be further down the list today. in fact, just a couple of weeks ago they paid a record of multibillion dollar fine. that will be at the top of the list involving many billions of dollars and this was the largest case of all times and when you look down this list isn't that large but what you see is a lot a lot of performing companies in the biggest case over the last

decade have seen many cases involving antitrust, fraud cases they seem to be producing the big blockbuster cases. certainly what emerges from this presentation of the data is that corporate fines are skyrocketed particularly in the last few years and these include penalties to the prosecutors and in some cases the payment is then characterized as a fine and a forfeiture or its restitution paid to compensate victims however as it is characterized it is paid to the prosecutors

and you didn't see the billion-dollar cases before. there is a big purple block that represents the case but there is a there's a much bigger block that represents $1.2 billion fine. in a case involving a subsidiary there are a number of pharmaceutical companies like that in the last few years. that's what this also shows you have to look just beyond the aggregate penalties in any given year and you see a lot of the variation between ranging from year to year what is the type of crime that is dominating this particular fine some years as environmental and somebody's bribery and summit is a pharmaceutical case. some things are steady. there is steady and high trust from here to here that the foreign bribery cases exploded in importance and in just the

last decade. they've absolutely grown in importance of the last half decade and the billion-dollar fines that are now the new normal often the blocks of color represent just a single case in that year. that's because of the fine kind enough of the gold prosecution. 2014 is an enormously pink year and that is assuming it is described in the guilty plea and it would be a truly remarkable year in the largest ever sanctioned violation penalty paid by the bank.

and sophie's blockbuster cases drive the coverage but there hasn't been an increase in the number prosecuted and there is enormous variation in the particular industries and crimes that happened to be prominent in the given year. some have asked why do some of these cases involve the foreign companies like that that i began talking about. it's absolutely true that the average fines paid by the companies are larger and i get asked by journalists in france and switzerland and germany why are they being targeted and controlled by crime and by the size of the company using whether it is in the public it is not a big difference and that still doesn't really explain this. it could be that the foreign companies are the worst violators and when you look at

the size of the sanctions violations in the case there had been a sanctions case of that size that had ever come to the attention before. it could also be that the foreign companies didn't know in the past how to cooperate with u.s. prosecutors basically have is this regime working in the u.s. perhaps over time if they have grown accustomed to the prosecutors or have hired u.s. law firms. the banking cases involving the money-laundering organizations and security products seem to be the eager cases. this is also to show the money denoted as the finest just the beginning and that he furred

nonprosecution agreement for example far money was paid to the regulators. the restitution for feature and the money that makes to the victim but it isn't a penalty for the crime. the guilty plea was filed in court and the company. it's assuming you pay the fines and comply with these terms. the d. for the prosecution agreements are filed in court

but what is filed in court is the pulling of the act and basically we agreed to let this case on the judges docket assuming that you comply with the terms and we dismiss the cases from the docket and nothing ever happens and there is no indictment or conviction. there is no criminal record. what has been interesting to watch over the last decade is the rise of the agreements i started tracking them early on in my career and started around

2006. the ones that are of public interest have disproportionately been deterred in the agreements. it's been increasingly started by 2005 they are receiving these nonprosecution agreements as opposed to the plea agreements. it's been since 2003 and the department of justice and there is a genesis. it's been paid to the company

and is it really a good idea to pursue the conviction and is it enough to prosecute and how serious is the wrongdoing and doesn't reach the levels and it does the company reported to you that corporate crime they never come to anyone's attention unless someone reports it. how good is the compliance. that is the question to prosecutors followed factors and what degree do they hired actors or care about them. if you think the compliance would be really important in the prosecution agreements given how that's a whole set of the factors revolve around the remedies and compliance most of

the agreements that i read to say general stuff about the due diligence and to adopt some compliance and best practices if the company is supposed to review the compliance and to do the audits would you think that if they care about that but it would be standard for such things to be required. not so much the minority of agreements, the small minority to we the prosecutors say they want you to be paid attention to the risks and to be sure that it's actually working we would hope that they have good carefully audited compliance or receive credit from that it isn't clear that it's happening and when we look at the terms of these agreements here just did he furred. most do in both the compliance requirements but there's a surprising number in the second column where they are not informed by prosecutors at all and what is going on in those cases is a even smaller number

which is required so please do some compliance but we don't want you to check on it or see how it's working. sometimes they are given credit for the compliance was already adopted or the regulators were supervising the compliance. some smaller numbers of these agreements also ask that the governance of the company be changed. the high year achieved compliance officer that would report to the board the new compliance positions and the other employees to sort of shape up the compliance sometimes with real detail. then the minority of the cases the corporate monitors and independent figures that are supposed to supervise. what are the monitors. they want to have a monitor that is familiar with the german corporate law and german finance

it's at the american counterpart and both of the monitors when i was working on this but it was fascinating for me to hear about the work frankly we don't hear anything about what monitors are doing or what is happening during the implementation of the agreement. the company may be the exception and they described as being an extremely labor intensive in the years that they were doing this work. in fact they never failed to approve any of the recommendations of which there were any initially. they gave them the office you first walk into the headquarters to show how important a monitor is the monitor is and if you read a translated version thank you for the work that you have

been doing most companies don't talk that way about the aftermath of being criminally prosecuted. they tried to find a german translation of the metamorphosis. they did cash most and felt that this bribery scheme was deeply embarrassing and they wanted to basically we build the company from the top down. the new ceo much of the leadership was placed and interestingly, the company is nothing short of a proselytizer on the subject of good business. they've been entering integrity packs along the way of the anti-compliance officers in different bennies opinions but they do business in candidate described how it is a totally different company doing the compliance work to be a prestigious job to the promotions, not sort of the backwater. if all of that is true, but

corporate prosecution is an enormous success story and they were right to focus on compliance and not just in posing the biggest fine possible. it's impossible to know from the outside, but it is fascinating for me to get to talk to some people to do some work on the inside. then the question is so the company has changed and the company has been paid the fines. how about employees? typically these agreements the employees are not prosecuted. i talk in the book about some of the challenge is is disease in this regard and it's about 35% of the cases where the employees are charged. this is also updating the data through this year or what happened so far this year and those are just individuals charged and even fewer end up getting convicted were serving crime and they have high year loss rates than for street the street cases and they've

resulted in dismissals and even the furred agreements for the executives. this particular case then senator arlen specter said that this is the biggest case ever someone must have paid the bribe is why isn't someone being prosecuted and unfortunately, there wasn't a good news for the banker. they received probation in exchange for their cooperation. and the u.s. prosecutors then did announce several indictments in the case. it didn't sound like there was any realistic possibility that any of the individuals would be extradited and nothing has happened in those cases presumably because all of those individuals are in the countries that don't have extradition agreements. perhaps it is still a punishment that they cannot easily travel to the countries that could extradited to the u.s. and i don't know whether anything will ever have been in those cases.

so, what are the lessons for all of these? they are complicated lessons, depending on which group of prosecutors and what agreement is anticipated. and there is a deeper question if you are a company and you want to show that you are trying to stay on the great power what are you supposed to do if prosecutors don't insist on compliance being audited should you audit anyway to make sure that it's working so that you can show that you have the top-of-the-line compliance and other metrics for doing so and what incentives are there to collect the data if you might uncover more violations which could lead you to be on the receiving end of the corporate prosecution. and then for individuals, as an individual should you feel like if the company will will perfect become individuals don't always get prosecuted in the cases and in fact he often do not be the company will have incentives to individuals under the bus but it

doesn't happen that often that wouldn't be the method that they would want to be sending in these cases. the banker said it don't get caught. we are now a global center and prosecuting the crime in a way that we haven't before and other countries around the world happened before. others are starting to emulate the approach including the uk where they now do different agreements and and pass the primary act modeled on the phone for an act and want to highlight that based on the overview description and whether we are giving us the right way way into the approach and if you purchase a limitation much less being continued. the cases involve the conduct

and the cooperations that are incredibly important to the u.s. economy and to the world economy. the companies cannot literally be put in jail. i do think that the corporate prosecution's though about whether you think that there are too many or too few is to be brought in an ad hoc casual way. and i think that the discussion today will encourage people to consider more carefully the stakes in the corporate prosecution's. thank you so much. [applause] thank you for having me here to respond. i guess i co-authored or offered for different reports in the last four years plus edited a number on the subject, so it is something i'm particularly

interested in and i just want to see that the professor's website as was noted in his such an invaluable resource, and his book is also going to be an invaluable resource as well. i certainly have disagreements with some in the book that didn't come through today in the presentation, but it is a treasure trove of resource and i think that i will flesh out in my talks. i think you've spoken to the new general counsel about this. ..

there was never a deferred prosecution agreement of a a corporation. they began in late 1992 or so under -- began under the first bush administration. administration. the first decade there were 17 or 18. in the last decade there were over 300. a dramatic shift in terms of how the federal prosecutors are dealing with large businesses.

let me go through four different areas of liability types of questions are responsible for the type of questions that i think our industry points, potential disagreement. the first is liability itself, and i think too big to jail is a great book title, but corporations, corporations, it is not possible, and it is important to understand that the us is historically and currently an outlier. some foreign countries do not have corporate criminal liability at all, including germany. maybe not. advanced economy functioning economy without a principle of corporate liability in all. anglo-american practice is deemed corporations do not have a criminal intent there

are exceptions municipal corporations it's about a hundred and five -year-old practice of corporate criminal liability. there is a case and 99 with new york central. the supreme court of the united states did not in fact create criminal liability. liability. congress could create it through its interstate commerce regulation. a lot of what we now have is sort of a steroid type extension of this principle that is not necessarily even authorized by congress.

the courts have inferred criminal liability. liability. the second.is a jurisdictional question. with relatively thin jurisdiction in some cases. where a lot of this happens. there are cases in which you have a foreign business headquartered abroad paying bribes to foreign countries. in some cases it is a stock market listing which is arguably a reasonable listing, although the effect of using the occurs

completely out of us borders is to create an incentive which is a trend we have seen. the other can be center, an e-mail that has gone through a us router. a bank account that has to clear. these are extremely jurisdictional needs. part of the off label drug sorts of prosecutions, non- prosecutions, non- prosecution agreements. billions of dollars on this. what this involves, no

question there are clear fda rules. no question there are rules, you can say about the use of a pharmaceutical product when it has not been subjected for a few. these are not a legal uses of the drug. they made it important. the corporations from being able to tell doctors about those uses through their sales teams for products that can be fda having to spend a billion dollars. that's the regulatory issue. whether that is a good or bad policy is open to debate. safe harbor for truthful

speech. lives are lost. that sort of policy the individuals are going to jail. courts have thrown out individual prosecutions on first amendment, and the prosecutorial misconduct of rule of all, the basic principle of the loblaw's legality. you have to know something is criminal. come up with new crimes.

but because these cases are so intricately tried, you can get cases where arguably the statute creates a safe harbor for the conduct. in other words, it may be illegal under the foreign law, may be savory, but walking around bribes that are being talked about, but they are ambiguous. the company cannot take it to trial. and so you have safe harbors remedy and openness and authority concerned, separation of powers concerned. we we have seen some of these figures coming in and occasionally getting used. this will be more in the civil context.

the professor talks about it in his book. on both sides individuals who by agreeing to comply and cooperate, and getting themselves out of jail. pain to get the money out. the flipside, the revolving door of the justice department are you are going to make $1 million a million dollars year working on the other side of these transactions, these non-prosecution type negotiations when you get out of the justice department. so that is what you want to do creating a strong incentive for that type of -- finally, competence, what we effectively have our smart measures of law

degrees creating extensive regulatory regimes including over interest rates. the federal reserve messes up all the time, and they have economists doing this. the single most important variable. coming in through prosecutors. some egregious offenses. pulling out of foreign countries, a foreign bank and then, of course, aig, not a federal case, a federal case, but coming after aig, i cringe a little bit. do we really want compliance officers a knew that was

focused on compliance and making regulators and prosecutors happy. the final.is there is just no transparency and oversight. they agree a lot. the new rules that came in to effect this year have an extensive judicial oversight transparency regime. nonprosecution agreements. the government asserts that it is speedy trial. the agreements themselves determine that any breach is slow to focus solely in the discretion of the prosecutor. it is not clear legislative oversight on the front end, on the remedy, judicial oversight, prosecutors with major regulatory impact.

we talk about the potential fixes, and that is where at least on the procedural fixes we have some agreement he may put me in what he calls the abolitionist. i am not arguing that we should abolish corporate criminal liability, but some of my ideas, and important book and topic and i am glad he brought public attention to this. >> care to make a response. >> i actually -- their are plenty of federal criminal laws. plenty of areas where we are not sure what the goals of corporate prosecution, and others where i think most people agree that quite serious offenses should be taken seriously. earlier earlier this fall i was asked by a judge in

washington dc to present myself as amicus. the government's position was just that, these agreements are filed in court but only files to delay the speedy trial act, the timing, timing agreements. a judge cannot review the substance of all. the judge did not have power to review the substance from all of these cases are too important to be filed out of court. i don't no if anyone thinks that having a federal anyone thinks that having a federal judge read the agreement is going to solve the problems. differential between parties unreasonable things.

the company to have to agree to all prosecutors to have to agree to. someone independent read what an agreement says, and have more transparency. some legislation. legislation that has been kicking around for help for years, improved transparency of deferred agreements to limit the use of nonprosecution agreements on the sure if they can be done for separation of powers. a real problem. lots of discretion. of course i wanted to note that i may have presented some complicated and detailed data about corporate prosecutions that we no about. there is another aspect of this. i emphasize in the book that we don't know about the corporate prosecutions we don't know about, how often prosecutors declined cases that have no merit, targeting companies in cases that are marginal and yet

declining serious cases which do have merit. if prosecutors conclude that a company or a person is innocently understand why that should be made public that they were being investigated in the first place. you could imagine a situation. i would love to no how many corporate referrals for open each year and how many turned the cases. no idea whether they were being extremely picky or whether they are basically prosecuting companies at the drop a dime and rarely declined cases of all, and that is a question that you just cannot answer, like so many other things having to do with the discretion and power prosecutors in this country. you cannot get a grasp on it. it is frustrating for researchers, terrifying for companies. >> i will start with the moderators privilege to ask

the question. in one chapter in your book you go into detail about the practices under the thompson memorandum for companies are effectively bullied into not funding employee legal differences. one judge said this is a violation of the sixth amendment. the current state of that. >> changed in response to the prosecutions of the number. extremely interesting. the judge said companies

absolutely can decide whether we want to pay for employees lawyers. strongly pushed them into it. which puts employees and a horrible bind. the court concluded they were on the same side. a government fifth amendment trade action. immediately changed language and organizational prosecution memo. no longer to bring up the subject, and that language has changed. the underlying problem that employees are caught in a terrible bind her companies are telling

them you need to talk and in fact to like you to talk to prosecutors or if you don't we will send a a note and give those to prosecutors. it is and a parent problem in the area. >> i do think their have been some positive celebratory fixes in terms of these areas, the attorney-client privilege. when i started back in 2010 there was a lot of consternation, just trying to see the succession of memos. it really back in the clinton administration and a successive memos since. the most prominent, but their have been significant improvements. very aggressive. they get this.

they get that the attorney-client privilege thing is a real issue. what is the impact of depriving financial capitol in angola. less good at thinking about that. >> to the audience. wait to be called on. identify yourself and ask questions. >> cato institute. a couple of comments. the commentary. if commentary. if criminal prosecution is what we really have to here

to prevent these kinds, kinds, it would seem to me that we would want to go after the paper -- the people who are actually committing crimes. and the fact that we don't do that suggests that a shakedown may be the ultimate issue more than prosecution. to the second., to exacerbate that the prosecution, as in the off label pharmaceutical situation or in the form of corrupt practices act which has always struck me as hard to identify what the role is you have a prosecution, and in many parts of the world that is just how you do business. either you pay the person

off for you don't get the business. it seems to me the bribe taker vis-à-vis his principal. to put it differently perhaps you could respond. >> those are great questions. in these corporate cases employees often don't get prosecuted. more often than not. thousands and thousands and thousands of cases brought every year. presumably they occur and presumably the employer is not being claimed, but the department of justice has

long said our first priority is targeting individuals. no employees are ultimately held responsible. we will see that pattern change over the years, who knows. anecdotally we have been hearing things that you would think it would be particularly easy to prove who did what. whether some laws are walls are a good idea as a matter of public policy are not is a core business question, not really my subject. to be sure you focus on the

person paying bribes. you are absolutely not focusing on the foreign officials demanding bribes. the public corruption aspect would be more important. one thing that we have seen, more other countries around the world have signed on to international norms. for example, until germany signed the convention a company like siemens would have written off on his taxes the bribe money. prosecuted in the us. it was only once other first world countries got from the boat that us prosecutors both comfortable and

demanding accountability. prosecuted quite some time after germany changed its law. it still it still does not answer the question. those are hard questions, but the explanation for the sudden rise has to do with the fact that us prosecutors were more comfortable holding other countries companies accountable. many of the biggest cases have involved foreign companies with this rationale of leveling the playing field. >> i think those are great questions. i would not not go so far as shakedown most

of these prosecutors are doing something against the law. there are problems. when they are able to basically become appropriators without congress that creates significant incentive problems. some of the substantive issues, some of the issues prevent that sort of veil piercing. when you have got a sanction of debarment where you are going to start this means that the company is not going to be able to do business with the us government. you're not going to get reimbursed for drugs, you have a problem. if you are a defense contractor and you cannot contract with the us government, you have a

problem. it's so huge that the companies are forced to the bargaining table, and the flip flipside is the liability standards are so loose, a compliance defense, who cares. they say they consider it but you don't have an actual affirmative defense. you can be accountable for low-level employees. so you always have the head in the sand problem. what if the corporations just organizing away with the top people are always avoiding it. a mafia. the hitmen hitmen are getting caught, but you will never get the dawn we are going to become super regulators and not prosecute

any individuals for crimes. that seems strange before you were talking about is the need for criminal law. it is a really weird mechanism. >> we are the only country in the world with the strict liability criminal standard for corporations. >> american exceptionalism. maybe that is changing. some countries have been on the receiving end and are now changing their corporate criminal standards. considering corporate crime legislation. for academics and prosecutors thinking about drafting a statute. in some ways one of jim's

great points was the threats to the company is not having a a criminal record. arthur anderson went out of business. it was the civil collateral consequences that are so threatening to companies. in the last year eric holder says there is no such thing as too big to jail. a couple of days pled guilty because they worked out with regulators that they there would not be that collateral consequence of the conviction. some suggestions that they

should do something to fix up that area, but plenty of cases the criminal punishment might involve a hefty chunk of change. >> of $5 million bribe for telecom business. any derivative lawsuits from the competitors who lost the business and the prophets? and tyco industries. industries. not that i want to be an apologist.

for the shareholders, $600 million returned 2.4. they just sued. compare that to enron. rampant, intentional, thousands and thousands of dollars to a for crippled people. a cfo for that company went to jail for ten years. >> in some of these cases there are things about changes over time in sentencing and the complexity and sometimes inexplicable nature of

federal sentencing. everyone talks about about the federal case as don't make this a federal case. infamous place of the variation is extreme in response to enron. typically dealing with people that have no criminal record which is one of the main considerations. on the other hand, it's been a subject of a lot of criticisms, what was the size of the law. all of a sudden you're talking sentences. economists debating, and and it could be a potential fraudulent scheme. large money amounts.

a two or three year sentence, life sentence. real concerns, lots lots of angry things and opinions about how these seem or have adequate guidance. that is one answer. between cases,, also over time, different administrations, responses to crises, all sorts of questions about comparing treatment when dealing with small numbers of cases. a prosecutor's office has priorities in place. they they can rate this one. someone more serious than the other 200. we will charge the maximum.

when you have an office handling a few of these cases it we will look much more arbitrary. >> i would like to no why -- i am i am a retired patent examiner. you don't talk about the case in which it gets used. not a single a single banker has been sent to jail. >> and that is a natural question.

as has been commonly reported that have not been big bank suits. we are now starting to see quite a few major wall street and international banks prosecutor more than once. credit squeeze is up to three and then there is the question, corporate recidivists maybe they are. they don't have a criminal record, and something's not working is not working even if they say this time it is different, currency, last time it was different people it seems like some of the accountability is missing and people have a right to be concerned that these deals are not having the intended effect on major financial institutions. particular bankers

prosecuted for fraud, from the outside, you know, the line that we intended to here from the department of justice has to do with the difficulty of improving content, content, whether it is the reason or other concerns. i don't know. somewhat different. many of those cases, evidence that executives were themselves profiting and seizing money. that is the kind of avarice and conduct where it is much easier to show intent and the crime. within your own bank, and easier case for prosecutors to exchange to a jury. i can see why they turned out differently.

>> i agree with what the professor said. it is not as if their have not been financial people getting prosecuted. insider trading which has nothing to do with the financial crisis, but it is illustrative. we illustrative. we do not want to criminalize negligence. i think i think that is an important principle. i am a credit of strict liability crimes. testifying in columbus, ohio i do not think that we want to -- we put people in jail for messing up. those standards actually do matter, not to say their have not been individuals that should have been put in jail. this whole architecture is part of the problem and the reason why we have not seen that. probably in many cases clear

fraudulent actions where we could establish a mens rea intent requirement. in some cases these are just mistakes. that is probably a mistake. the curious thing is often times you see the major entities doing things the same way. that tells you something about what is going on. this on. it could be that one person is being a fraudster, but it -- these cases are hard to make and prosecute. the corporations are going to the deal. insider trading, wiretaps, wiretaps, and people getting inside information, you can make that case. it case. it is much harder to make some of these other ones. >> criminalizing mistakes in the banking anti-money

laundering cases. most most of these violations are failure to properly detect someone else's criminal wrongdoing. >> i talk more about the hsbc case. it sounded like the agreements with regulators that it was not just about the one failure to catch funny business involving the ponzi scheme. they thought they thought that there was a pervasive lack of attention. another example of too big to jail.

no bank we will be charged with money laundering because it requires the institution of chartered revocation. and and it is not something that prosecutors want to do. charged with bank secrecy act violations. of course any bank may be generated under the thousands if not millions of red fly transactions and maybe it was an extreme situation where they have less than 100 people a hundred people who are supposed to look at all of that. we cannot do this job. and job. and maybe transactions going to drug cartels and terrorists, but we don't have the resources. but that was the case where there was a deferred prosecution agreement. describing describing people who are saying not to do compliance.

maybe the bank has shaped things up and it is a good result and the money is no longer flowing through the drug cartels, but i hope that that is true. of course, we, we have no way of knowing. >> thank you. attorney in town. i am involved in a case which grew out of a different agreement. comment on the arbitrariness of this is rampant where the company was raided by 200 fbi agents for medicaid fraud. they quickly agreed the dpa command dpa command through the ceo, cfo, and general counsel under the bus. one of one of the few cases where employers were prosecuted. a county issue that is

purely regulatory. regulatory. they argued that the way they counted the payments were reasonable. the jury came back that locked. they came back back and acquitted the executives of almost everything. so this used to be arbitrariness in terms of both the use of the dpa as well as going after executives, highly regulatory field were they should deploy civil and administrative remedies. >> a separate issue. we have have so many of these regulatory crimes. more than half the federal criminal justice system, that's half of the

individuals prosecuted every year. we have mass processing centers at the border violating immigration regulations. we are we are comfortable with convicting tens of thousands of people you. that is something that congress has been doing since before the new deal and has been a feature of federal criminal for a long time but certainly means if you we will turn a violation of a regulation into a crime their better be a real mens rea attached to it the only

thing that congress normally does is when the supreme court does something to moderate congress comes back and makes it easier for prosecutors to shelf. >> i agree with that. lots of areas are messed up. when it comes to immigration there are lots of the forms we need to consider. that is fundamentally a problem. most of the illegal mark onyx, there is a knowledge

that they are breaking the law. it is difficult. where this comes into play for how the small business is supposed to act. every every big business is committing federal crimes daily. this great book, 33 felonies a day. we are all committing crimes everyday when you have over the 4,000 statutory crimes.

this overarching message that will criminal law is making it much tougher to do business without risking serious potential jail time. >> the notes. the deferred amount prosecution agreements. the prosecuted. there is unequal treatment

within prosecutions in terms of the type of deals that can be negotiated. >> i am an attorney. coming back to the bribery situations, do you have any data on what percentage the company is actually a victim of distorted extortion. >> some of these statements, in any case unless it is aggressively trying to pay bribes that we will be a demand. what counts what counts as

extortion is hard to say all of it does not mean putting a gun to someone said. you're a public official. it has been raised in response to prosecutions for openly reported what happened to the us prosecutors in turn themselves in. it's not like they have ability. can't really investigate. companies that did not want

to do it and can clean will. >> once the contract is already being one. >> minor in some way well. >> probably not. >> nobody knows. it's not as if the company can sit there and say they asked for. it's a symbiosis. the goal goal is a good one. we do not want bribery.

it it is a good thing not to be able to bribe officials for contracts, and we don't want the folks that are the most efficient purpose to be the one that wins. it's a good goal will we will could be unfairly

targeted by prosecutors. you think that is an easier case to build. perhaps has obscure documents and his chief officials might be difficult to locate and prosecute you didn't see that many cases involving companies are conduct in china. that part of it is another aspect of how ad hoc starring nature of these. these. often the ones that get reported. countries with these investigations come to light may tend to be the countries that signed on to the treason for prosecutors feel comfortable going after the multinational country that should be following the laws of its country, even if the bribes themselves are paid. not particularly followed.

so much arbitrariness. the company self-reports. even more. they really have three or four paths. some just brought by the sec as purely civil cases. the fines tend to be lower. prosecutors bring plenty of cases will but they bring some as plea agreement. what factors are supposed to consider. consider. no guidance on why some companies should get convicted and some not. you really see cases they completely different paths.

testified in the house. three quarters of a million a month. the money they are. might are. might be a drop in the bucket.

as some companies have said that the work is important. they need outside independent expertise. i do talk about it in the book how most of these are former prosecutors and whether a former prosecutor, in response to the hearings involving the monitors that chris christie appointed, there is a heavy new jersey focus. it is still basically an internal decision, more internal over monitor. judges should pick the monitors. the company does not have to have the right skills.

prosecutors are going after the companies that have the biggest and most extended failures. compliance audit. one positive change for your scene is the agreements have tended to include much more detail. this is the work plan. plan. the monitor does not just have free range. >> the has been some effort to be a little more systemic i don't think it's an

inherently problematic to say we need a corporate monitoring these sorts of cases. if the company pays for it to look over their shoulder the judge is completely out of the loop. that is a really odd process a a good way to clean the process. sometimes it may be the best guy. the buddy might be the best guy. so now that it is large, lucrative, well. take for someone who may have been a a former prosecutor and if

anything potentially exacerbates the whole agency , rather the public choice problem i was talking about in terms of the young doj prosecutors mind. >> there will be a lunch following this. you go up the spiral staircase. staircase. restrooms along the yellow wall.

>> treat us. twitter .com. post a comment on our facebook page. facebook .com/book tv. >> the author of war dog, tales of canine heroism. what is on the cover of your book? >> the doing a training exercise. i was looking at photos.

it's sort of stood out. the bomb sniffing dogs hanging out. everyone likes fairly happy. photos that are little more pretty. suggested that we partner command i did that for about four years. >> how many dogs are used in the military? >> well, how expensive the dog is. a little bit more expensive because of the pedigree and training, little bit more intense.

training, the time and energy. the kind of understand. we only have 5 million.

all the different branches in the military. .. the dean of georgetown college of arts and sciences. this week oem discusses