Deferred Prosecution and Non-Prosecution Agreements and the Erosion of Corporate Criminal Liability
David M. Uhlmann
University of Michigan Law School
October 1, 2013
Maryland Law Review, Vol. 72, No. 4, 2013
U of Michigan Public Law Research Paper No. 352
The Justice Department has made frequent use of deferred and non-prosecution agreements in recent years, a disturbing trend where corporations avoid criminal charges, even for egregious crimes, by entering agreements that previously had been reserved for minor cases involving first-time offenders. The practice is not consistent across the Department: in the Environment and Natural Resources Division and the Antitrust Division, deferred prosecution and non-prosecution agreements are rarely used; in the Criminal Division and some United States Attorney’s offices, such agreements have become almost the norm. The terms of the agreements are attractive to the government, because they often provide large penalties, far-reaching corporate compliance programs with outside monitors approved by the Department, and promises of cooperation by the companies involved. But plea agreements — the preferred approach prior to the last decade — can offer the same benefits to the government without making it appear that large companies can buy their way out of criminal prosecution.
In this Article, I argue that the use of deferred prosecution and non-prosecution agreements erodes corporate criminal liability and undermines the rule of law. I assert that deferred prosecution and non-prosecution agreements limit the punitive and deterrent value of the government’s law enforcement efforts and extinguish the societal condemnation that should accompany criminal prosecution. I side with those within the Justice Department who have resisted the trend toward deferred prosecution and non-prosecution of corporate crime and agree with critics who claim that the Department lacks sufficient policies to ensure that abuse of power does not occur in negotiating such agreements. I conclude that the government does not need the "middle ground" of deferred prosecution and non-prosecution agreements, except for less serious violations where there are no civil or administrative remedies or perhaps in the rare situation where prosecutors can demonstrate that a criminal conviction would cause unacceptable harm to innocent third parties.
Number of Pages in PDF File: 51
Keywords: corporate crime, white collar crime, worker safety, mine safety, environmental crime, FCPA enforcement, criminal law
JEL Classification: K14, K20, K23, K32, K40, K41, K42, L50, L51, L71
Date posted: October 3, 2013