The FCPA Professor Schools Assistant AG on the Meaning of “Deterrence”

In a November speech at the 20th Annual Pharmaceutical and Medical Device Compliance Congress, Assistant Attorney General Brian Benczkowski delivered some boilerplate talking points about compliance, noting that the federal prosecutor’s role is different from that of a corporate compliance professional, but their goals are basically aligned. “We both want to deter corporate criminal misconduct, and we both want to detect such misconduct when it does occur, holding wrongdoers to account in our respective ways.” Nothing controversial about that, but the FCPA Professor took note of Benczkowski’s repeated odd use of the word “deterrence.” Black’s Law Dictionary defines it as “the act or process of discouraging certain behavior, particularly by fear; especially as a goal of criminal law, the prevention of criminal behavior by fear of punishment.” It is a forward-looking concept aimed at prevention, but Benczkowski stated that the objective behind the FCPA Corporate Enforcement Policy in all corporate criminal cases “is aimed at providing additional benefits to companies based on their corporate behavior once they learn of misconduct.” Likewise when he called both the DOJ’s anti-piling’ policy — coordination of penalties in parallel and/or joint investigations and proceedings arising from the same misconduct — and its policy concerning resolving misconduct short of criminal charges, forms of “deterrence.” The Prof simply suggests that deterrence should not be used to describe DOJ policies that are only implicated once alleged misconduct occurs. He doesn’t suggest an alternative term, but several come to mind.