Volume 56

Regulation by Prosecutor

by Gregory M. Gilchrist

Prosecutors exercise broad power and nearly unchecked discretion. A distinctive and underappreciated aspect of prosecutorial authority lies in the ability to impose plea terms that effectively ensconce the prosecutor as a regulator. This phenomenon is clearest in corporate settlements mandating prospective changes to internal governance subject to ongoing prosecutorial review. Prosecutorial control of corporate governance, however, represents merely an extension of a longstanding practice. Prosecutors have often demanded prospective and remedial terms to resolve a wide array of criminal cases, including traditional cases against individuals. Such terms include bars from employment, compelled apologies, and bans from public office. Regulation by prosecutor is a predictable consequence of expansive criminal laws, the practical realities of plea bargaining, and the perceived failure of regulators; as such, it is unlikely to change. The question remains whether and how it might be governed. This Article represents a first step toward describing the breadth of the phenomenon, identifying its benefits and costs, and considering paths forward.

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