6.2.3. Pre-Offense Compliance Programs, and Retrospective Rehabilitation Programs
Of course, there is no law to implement a compliance plan after a corporation is caught in the crossfire, especially in a case where the prevailing norm in the corporation was the norm of committing offenses, and a company that implements compliance control and enforcement programs in the first place. While compliance programs are the best possible safeguard to prevent the recurrence of corporate offenses. However, it is clear to everyone that there is no compliance program that will completely prevent the commission of offenses, especially in large corporations, where hundreds or even thousands of employees are employed. Thus, for example , Hamdani and Clement, Deterrence of Friendship, at p. 294:
"… the government’s task is to encourage monitoring while using a sanction that can be deployed only once given the collateral consequences of the firm’s criminal liability. To achieve this goal, the government needs to target only firms that failed to monitor. The government therefore should impose liability only when the outcome—the number of offenses in this case—is more likely to indicate the firm’s failure to monitor rather than a failure of the monitoring measures that the firm did adopt. Because even optimal monitoring may fail to eliminate misconduct, a small number of offenses would often be a poor signal for the firm’s monitoring effort. In contrast, a relatively large number of violations credibly signals that the firm did fail to monitor for wrongdoing"
For an analysis of compliance programs and their success in preventing offenses in the U.S., see Vikramaditya Khanna & Timothy L. Dickinson, "The Corporate Monitor: The New Corporate Czar?", 105 Mich. L. Rev. 1713 (2007); Miriam Hechler Baer, Governing Corporate Compliance", 50 B.C.L. Rev. 949 (2009); Cristie Ford and David Hess, "Can Corporate Monitorship Improve Corporate Complience?", 34 Jr. Corp. L. 679 (2009)).