Who Watches the Watchmen? Accountability in Federal Corporate Criminal Prosecution Agreements

44 Pages Posted: 7 Mar 2016 Last revised: 10 May 2016

Date Written: February 4, 2015

Abstract

The Department of Justice entered into hundreds of deferred and non-prosecution agreements (DPAs and NPAs) with corporations over the last twenty years, and continues to increase the use of these agreements every year. However, there is no academic scholarship that explores whether the DOJ has grounded these criminal settlements in traditional criminal sentencing procedures. Specifically, do these agreements – which can often include hundreds of millions of dollars in penalties – follow the carefully considered principles of the U.S. Sentencing Guidelines for Organizations? This article considers this question in light of the public choice theory of criminal procedure and concludes that the DOJ is not utilizing the Sentencing Guidelines in a manner consistent with basic notions of government accountability in the criminal justice system. The article uses data collected from over three hundred deferred and non-prosecution agreements and finds that only a small percentage include an analysis of a monetary penalty based on the Sentencing Guidelines. The government’s use of a non-traditional process to resolve corporate criminal cases should be concerning in the absence of an institutional check such as the Sentencing Guidelines. The article urges the DOJ to adopt standardized procedures for future criminal settlements, including a demonstration of the Sentencing Guidelines analysis typically found in plea agreements.

Keywords: white collar, corporate crime, criminal law, public choice, prosecution agreement, DOJ, sentencing, plea agreement, law and economics

JEL Classification: A12, D20, D21, D73, D72, H11, K10, K14, K20, K22, K41, K42

Suggested Citation

Wilt, Michael, Who Watches the Watchmen? Accountability in Federal Corporate Criminal Prosecution Agreements (February 4, 2015). American Journal of Criminal Law, Vol. 43, Issue 1, 2016, Available at SSRN: https://ssrn.com/abstract=2563783

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