Get Rid of Deferred Prosecution Agreements

The time has come.

Get rid of deferred prosecution agreements in corporate crime cases.

Peter Reilly

Peter Reilly

That’s the argument of Peter Reilly in a new article titled Justice Deferred is Justice Denied: We Must End Our Failed Experiment in Deferring Corporate Criminal Prosecutions (Brigham Young University Law Review, 2015).

Reilly is an Associate Professor of Law at Texas A&M School of Law.

“Deferred prosecution agreements (DPAs) serve as a disturbing wellspring of unfairness, double standards, and potential abuse of power,” Reilly writes. “I urge Congress to pass legislation halting the Department’s ability to use deferred prosecution agreements in the context of corporate criminal law enforcement — to formally eliminate what the Department refers to as the ‘middle ground’ between declining to prosecute on the one hand, and trials or guilty pleas on the other.”

“We label matters as criminal because we, as a society, strongly condemn the behavior and we wish to protect people from it,” Reilly writes. “Part of the motive in choosing to label something ‘criminal’ rather than ‘civil’ is to engender more severe public shaming, thereby further reinforcing law-conforming standards of behavior throughout society.”

The Department of Justice suggests that acknowledging wrongdoing as part of a deferred prosecution agreement can, in some measure, be similar to acknowledging wrongdoing through a guilty plea.

“This is not the case,” Reilly counters. “One is left to wonder how much public shaming and overall accountability are taking place through the use of deferred prosecution agreements when a former federal prosecutor tells us that — ‘Companies are happy to enter into these deferred prosecution agreements because it’s become so commonplace now. . . . They take a bath in the press for a finite period of time. The stock markets don’t even seem to punish them.’”

Reilly says — “it is time to end this failed experiment in alternative dispute resolution.”

“And in the end, if deferred prosecution agreements are not eradicated as a tool of corporate criminal law enforcement, perhaps we can at least change their name to something that more accurately describes the benefit that the vast majority of recipients obtain through their current use — Avoiding Prosecution Agreements (APAs).”

“Individuals and companies avoid prosecution, and the rest of America pays a certain and costly price for that avoidance,” Reilly argues. “Justice deferred for a select group of individuals and companies means justice denied for the rest of us.”

If we get rid of deferred prosecution agreements, what will replace them?

“Nothing need replace them,” Reilly says. “Rather, the two choices that were available to prosecutors before deferred prosecution agreements arrived on the scene — namely, prosecution or declination — were, and still are, more than adequate to address potential violations. As in every other area of criminal law, the defendant facing prosecution would then decide to put the government to its burden of proof at trial, or the defendant would decide to opt for a plea bargain. I imagine most defendants would opt for the latter, given that ninety-five percent of all federal criminal cases, and well over ninety percent of cases involving organizational defendants, are currently resolved through guilty pleas.”

What about the collateral consequences of a corporate guilty plea?

Reilly says that the existence and severity of collateral consequences have heretofore been exaggerated.

And he argues that the collateral consequences can and should be addressed by the policies, processes, rules, and regulations of institutions other than the Department of Justice and by individuals other than prosecutors.

“In the end, the fear of and/or potential for collateral consequences should not have the power to persuade the Department of Justice and federal prosecutors to turn to the less fair and less just alternative dispute resolution vehicle of deferred prosecution agreements to address potential corporate criminal wrongdoing.”

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