CORPORATE CRIME REPORTER
Mary
Jo White: Prosecutors Should Either Charge or Not Charge – Shy Away from
Deferred Prosecution Agreements
19 Corporate Crime Reporter
48(1), December 8, 2005
In corporate crime cases, prosecutors should either charge or not charge a crime.
They should shy away from trying to control corporate behavior through deferred
prosecution agreements.
That’s the take of Mary Jo White, former U.S. Attorney in Manhattan, and
currently head of the litigation group at Debevoise & Plimpton in New York.
“Prosecutors are at their best when they decide to charge or not and not
get into managing corporate America,” White told Corporate Crime Reporter.
“The government should be more sparing in its use of deferred prosecution
agreements and limit those to situations where they certainly would have indicted
otherwise for all the right reasons on their part.”
White said she feared that deferred prosecution agreements were becoming “a
vehicle to show results.”
“Prosecutors are like anybody else – when they devote a lot of time
and effort to a case, they want something to show for it,” she said.
White knows something about corporate deferred prosecution agreements.
As U.S. Attorney, she negotiated one of the first ones – in 1994 with
Prudential Securities.
And at Debevoise – she has negotiated a number of high profile deferred
and non prosecution agreements – including Hilfiger and Bristol Myers
Squibb.
“There is no question that the primary focus of prosecutors is and remains
guilty individuals,” White said. “The entity is a corporate fiction.
But it is obviously an important entity to those who work in it and those who
invest in it. Prosecutors should think – why is it that I need to do anything
to this company? Why is this such a rare case of wrongdoing that it demands
something on the criminal side? But it is an arena where prosecutors are beginning
to think much more routinely – we need to do something. It is not an indictment.
And our preference is not to indict. We therefore need a deferred prosecution
agreement. We need something. And that is where they are going astray sometimes,
in my view. In the vast majority of cases, they should
not be seeking anything from the company itself except its cooperation.”
(For a complete transcript of the question/answer format interview with Mary
Jo White, see 19 Corporate Crime Reporter 48(9), December 12, 2005,
print edition only)
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