Thursday, October 10, 2013
David M. Uhlmann (University of Michigan Law School) has posted Deferred Prosecution and Non-Prosecution Agreements and the Erosion of Corporate Criminal Liability (Maryland Law Review, Vol. 72, No. 4, 2013) on SSRN. Here is the abstract:
The Justice Department has made frequent use of deferred and non-prosecution agreements in recent years, a disturbing trend where corporations avoid criminal charges, even for egregious crimes, by entering agreements that previously had been reserved for minor cases involving first-time offenders. The practice is not consistent across the Department: in the Environment and Natural Resources Division and the Antitrust Division, deferred prosecution and non-prosecution agreements are rarely used; in the Criminal Division and some United States Attorney’s offices, such agreements have become almost the norm. The terms of the agreements are attractive to the government, because they often provide large penalties, far-reaching corporate compliance programs with outside monitors approved by the Department, and promises of cooperation by the companies involved. But plea agreements — the preferred approach prior to the last decade — can offer the same benefits to the government without making it appear that large companies can buy their way out of criminal prosecution.
In this Article, I argue that the use of deferred prosecution and non-prosecution agreements erodes corporate criminal liability and undermines the rule of law.