Anything But a Racket: Why Professor Richard Epstein's Attack on the Nature and Function of Deferred and Non-Prosecution Agreements Misses the Mark

Abstract:     
In light of recent scandals involving companies such as Enron and Arthur Andersen, the need to impose criminal penalties on corporations has been on the rise. More and more often, however, federal prosecutors have utilized deferred and non-prosecution agreements in lieu of indicting and criminally prosecuting business entities. Despite the advantages that such agreements create for both prosecutors and companies, Professor Richard Epstein has vigorously attacked this practice in his recent article, The Deferred Prosecution Racket, contending that deferred and non-prosecution agreements do not serve the public interest because they do not help to restore shareholder confidence in the firm and undermine the principle of separation of powers. Epstein’s arguments are ill-founded, however, as deferred and non-prosecution agreements rebuild shareholder and public confidence in corporations while allowing companies to avoid certain death by indictment. Moreover, it is only by imposing or by threatening to impose criminal liability on business entities, rather than by solely charging individuals, that the government can effectively stop and prevent corporate crime.

Advocating for the continuing usefulness and utility of deferred and non-prosecution agreements and against Epstein’s approach of wholly eliminating corporate criminal liability, this Article discusses the concept of corporate criminality, provides an overview of the definition and function of deferred and non-prosecution agreements, and contends that such agreements are the best, if not the only, means of preventing and addressing criminal conduct arising in the corporate context.

Number of Pages in PDF File: 22

Keywords: corporate criminal liability, corporation, deferred prosecution agreement, non-prosecution agreement, Richard Epstein,business entities

JEL Classification: K1, K2, K10, K14, K22

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