Justice Deferred is Justice Denied: We Must End Our Failed Experiment in Deferring Corporate Criminal Prosecutions
52 Pages Posted: 27 Sep 2014 Last revised: 3 Sep 2016
Date Written: September 25, 2014
According to the U.S. Department of Justice (“DOJ”), deferred prosecution agreements are said to occupy an “important middle ground” between declining to prosecute on the one hand, and trials or guilty pleas on the other. A top DOJ official has declared that, over the last decade, the agreements have become a “mainstay” of white collar criminal law enforcement; a prominent criminal law professor calls their increased use part of the “biggest change in corporate law enforcement policy in the last ten years.”
However, despite deferred prosecution’s apparent rise in popularity among law enforcement officials, the article sets forth the argument that this alternative dispute resolution vehicle makes a mockery of the criminal justice system by serving as a disturbing wellspring of unfairness, double standards, and potential abuse of power. The article concludes by recommending that Congress pass legislation to halt DOJ’s ability to use deferred prosecution agreements in the context of corporate criminal law enforcement. The article suggests that if this goal cannot be realized, these agreements will continue to greatly compromise the pursuit of justice, consistency in the rule of law, and basic notions of fairness.
Keywords: DPAs, ADR, corporate law, criminal law, negotiation, dispute resolution, litigation
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