Federal Judge Emmet Sullivan Rips GM Deferred Prosecution Agreement

Judge Emmet Sullivan made it clear that yes, the federal Speedy Trial Act provides federal courts with the authority to review whether or not to approve deferred prosecution agreements.


Judge Sullivan was weighing in on corporate deferred prosecution case involving Saena Tech.

But that’s not what will make news.

In an 84-page decision, Judge Sullivan took a detour and ripped federal prosecutors for their deferred prosecution agreement in the General Motors case.

“In a shocking example of potentially culpable individuals not being criminally charged, the Department of Justice announced that it had entered into a Deferred-Prosecution Agreement with General Motors Company (GM) regarding its failure to disclose a safety defect,” Judge Sullivan wrote. “Under this agreement, GM admitted that it failed to disclose a ‘potentially lethal safety defect’ and that it ‘affirmatively mislead consumers about the safety of GM cars afflicted by the defect,’ resulting in numerous deaths. Despite the fact that the reprehensible conduct of its employees resulted in the deaths of many people, the agreement merely ‘imposes on GM an independent monitor to review and assess policies, practices, and procedures relating to GM’s safety-related public statements, sharing of engineering data, and recall processes” plus the payment of a $900 million fine. If GM abides by the terms of the agreement for three years, the government will defer prosecution and then seek to dismiss the charges.”

Judge Sullivan was clearly disturbed by the use of deferred prosecutions for major corporate crimes when in fact “deferred prosecution agreements were originally intended to give prosecutors the ability to defer prosecution of individuals charged with certain non-violent criminal offenses to encourage rehabilitation.”

“Deferred-prosecution agreements appear to be offered relatively sparingly to individuals, and instead are used proportionally more frequently to avoid the prosecution of corporations, their officers, and employees,” Judge Sullivan wrote.

“Notwithstanding clear congressional intent, the Court is disappointed that deferred-prosecution agreements or other similar tools are not being used to provide the same opportunity to individual defendants to demonstrate their rehabilitation without triggering the devastating collateral consequences of a criminal conviction,” he wrote. “Department of Justice statistics indicate that in fiscal year 2012, there were a total of 253 pretrial diversions for individual defendants, accounting for 0.9%of the reasons why Assistant United States Attorneys declined to prosecute.”

“This is in contrast to the use of corporate deferred-prosecution agreements and non-prosecution agreements in the Department of Justice’s Criminal Division, which the Government Accountability Office found were comparable to the number of corporate prosecutions undertaken between fiscal years 2004 and 2009.”

Judge Sullivan said that “rather than offering deferrals to individuals charged with certain non-violent criminal offenses to encourage rehabilitation, the government increasingly now offers — as it did to the defendants in these cases — to defer prosecution of a corporation for criminal misconduct in exchange for the payment of a fine and the institution of compliance measures.”

From 2000 through 2005, the average number of deferred-prosecution agreements was just over four per year.

In contrast, from 2005 through 2015, the number of deferred-prosecution agreements increased dramatically, and the number of agreements with corporations may exceed historical highs in 2015.

“But here’s the thing,” Judge Sullivan wrote. “Over the last few decades, we’ve also locked up more and more nonviolent drug offenders than ever before, for longer than ever before. And that is the real reason our prison population is so high. In far too many cases, the punishment simply does not fit the crime. If you’re a low-level drug dealer, or you violate your parole, you owe some debt to society. You have to be held accountable and make amends. But you don’t owe 20 years. You don’t owe a life sentence. That’s disproportionate to the price that should be paid.”

Copyright © Corporate Crime Reporter
In Print 48 Weeks A Year

Built on Notes Blog Core
Powered by WordPress