Key Takeaways
- The Department of Justice's September 2024 revision to the Justice Manual, Section 9-28.000, fundamentally alters corporate criminal liability by shifting from a "culture of compliance" to a "programmatic efficacy" standard, requiring prosecutors to evaluate whether a compliance program actually prevented or detected the specific misconduct at issue, not merely whether it existed on paper.
- Under the new policy, corporations face a presumption of indictment if they fail to self-disclose all relevant facts within 120 days of becoming aware of potential criminal conduct, eliminating the previous sliding-scale approach that allowed for non-prosecution agreements even with delayed reporting.
- Individual accountability now takes statutory primacy through a mandatory "individual accountability matrix" under 18 U.S.C. § 1001, requiring prosecutors to document every decision not to charge a corporate executive before any corporate resolution can be approved, reversing the longstanding "corporation-first" approach I witnessed during my tenure.
- The policy codifies a new "recidivist corporation" enhancement under the U.S. Sentencing Guidelines, § 8C2.5, imposing a mandatory four-level culpability score increase for any company that has entered into a deferred prosecution agreement within the preceding five years, effectively doubling the recommended fine range for repeat offenders.