Mythili Raman, the acting chief of the Criminal Division, appeared before the Oversight and Investigations Subcommittee of the House Financial Services Committee this afternoon.
Raman held up well under sometimes aggressive questioning about the Department of Justice’s corporate crime prosecution policies.
In defending the Department’s increased use of deferred and non prosecution agreements to settle major corporate crime cases in recent years, Raman said that for deferred and non prosecution agreements “we require a complete admission of wrongdoing.” and that “regardless of the resolution — deferred prosecution, non prosecution or a guilty plea — the company must fully acknowledge it’s criminal wrongdoing and may not retract that.”
We ran this claim by Brandon Garrett.
Garrett is a Professor at the University of Virginia Law School.
He has set up a database of all publicly available deferred and non prosecution agreements and a separate database of guilty pleas in major corporate crime cases.
And he’s writing a book titled — Too Big to Jail: How Prosecutors Take On Corporations.
“Of the 232 federal deferred and non-prosecution agreements with corporations that I have obtained, from 2001-2012, I found that 88% included an acceptance of responsibility or admissions of guilt, while 12% did not,” Garrett told Corporate Crime Reporter.
“Somewhat fewer agreements — 80% — included a more detailed statement of facts describing the conduct.”
“So, it is a good thing that the vast majority of these corporate prosecution agreements do include acceptance of responsibility and admissions of guilt. Many explain that those corporate admissions and the acceptance were a reason for granting leniency.”
But Garrett said that in about one-fifth of the cases, the admissions are not made in any detail in a public document.
And there are cases where the Department refuses to make public the deferred or non prosecution agreement.
Last week, for example, the Department announced a non prosecution agreement with C.R. Bard, quoted from the agreement in its press release, but then refused to release the actual agreement.
And there are the cases — 12% of them — in which there is no acceptance or responsibility or admission of guilt, Garrett said.
“Some include quite significant corporate prosecutions,” Garrett said. “Sometimes there is a brief explanation.”
Garrett said that the Elan Corporation agreement notes — “this Agreement is made in compromise of disputed claims,” and states that the firm did not admit guilt.
“In most cases in which there is no admission, it is inexplicable why companies are not required to admit guilt or accept responsibility,” Garrett said.
“The fact that some companies are not required to admit guilt in these criminal settlements is troubling, but perhaps if the Department of Justice has changed its policies and such agreements will become a thing of the past.”
Garrett said “there is the concern that the public admissions be complete and involve a true acceptance of responsibility.”
“Some cases avoid describing the crime in much detail, as I have noted,” he said.
“Some cases avoid naming the particular crimes committed. The Barclays agreement from last year is an important example.”