At last week’s Compliance Week Conference, I saw a paradigm shift in thinking about the factors to be included in a compliance program. Most compliance programs have placed a lot of emphasis on the federal sentencing guidelines. After all, those guidelines give credit for having an effective compliance program. So you want to have an effective compliance program.
But by definition, the sentencing guidelines are only useful once the organization has been indicted and convicted with a crime. We are better off preventing the organization from being indicted in the first place. So, perhaps we are better off looking at the Principles of Federal Prosecution of Business Organizations (.pdf) from the Department of Justice.
The Principles are more nuanced than the Sentencing Guidelines. They take into account the issues of prosecutorial discretion. In contrast, the Sentencing Guidelines are a compromise between prosecutors, the defense bar and the judicial bench.