Criminal Affirmance: Going beyond the Deterrence Paradigm to Examine the Social Meaning of Declining Prosecution of Elite Crime

Recent financial scandals and the relative paucity of criminal prosecutions against elite actors that spawned the crisis suggest a new reality in the criminal law system: some wrongful actors appear to be above the law and immune from criminal prosecution. As such, the criminal prosecutorial system affirms much of the wrongdoing that gave rise to the crisis. This leaves the same elites undisturbed at the apex of the financial sector, and creates perverse incentives for any successors. Their incumbency in power results in massive deadweight losses due to the distorted incentives they now face. Further, this undermines the legitimacy of the rule of law and encourages even more lawlessness among the entire population, as the declination of prosecution advertises the profitability of crime. These considerations transcend deterrence, as well as retribution, as a traditional basis for criminal punishment. Affirmance is far more costly and dangerous with respect to the crimes of powerful elites that control large organizations than can be accounted for under traditional notions of deterrence. Few limits are placed on a prosecutor’s discretionary decision about whom to prosecute, and many factors against prosecution take hold, especially in resource-intensive white-collar crime prosecutions. This Article asserts that prosecutors should not decline prosecution in these circumstances without considering the potential affirmance of crime. Otherwise, the profitability of crime promises massive future losses