Sweetheart Deals, Deferred Prosecution, and Making a Mockery of the Criminal Justice System: U.S. Corporate DPAs Rejected on Many Fronts
50 Ariz. St. L.J. 1113 (2019)
59 Pages Posted: 12 Feb 2019 Last revised: 13 Mar 2019
Date Written: February 4, 2019
Corporate Deferred Prosecution Agreements (DPAs) are contracts negotiated between the federal government and defendants to address allegations of corporate misconduct without going to trial. The agreements are hailed as a model of speedy and efficient law enforcement, but also derided as making a “mockery” of America’s criminal justice system stemming from lenient deals being offered to some defendants. This Article questions why corporate DPAs are not given meaningful judicial review when such protection is required for other alternative dispute resolution (ADR) tools, including plea bargains, settlement agreements, and consent decrees. The Article also analyzes several cases in which federal district courts express misgivings about having to approve, in accordance with recent appellate court rulings, DPAs they would otherwise have likely rejected for being overly lenient. Finally, the Article describes how several foreign countries have turned away from using U.S.-style corporate DPAs in favor of fashioning their own programs with mechanisms to ensure effective transparency, judicial oversight, and public interest accountability. The Article tracks the myriad ways in which critical rule-of-law elements have been integrated into these burgeoning corporate DPA programs worldwide, thereby providing models of how the United States and other countries can work to ensure their own programs conform with rule-of-law and separation-of-power principles.
Keywords: ADR, DPAs, deferred prosecution, corporate law, white collar crime, ciminal law, Negotiation, judicial review, rule-of-law, separation-of-power
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