Wednesday, May 17, 2006

DOJ Corporate Charging Policies Article

An article studying how the Department of Justice approaches charging corporations with crimes and the terms of deferred prosecution agreements will be published in the St. Louis University Law Journal.  The article, Devolution of Authority: The DOJ's Corporate Charging Policies, was written by Lawrence D. Finder and Ryan McConnell, and is available through SSRN (here).  The abstract states:

This paper examines the Department of Justice's corporate charging policy through the lens of reported deferred and nonprosecution agreements entered into since 1991. The authors have collected and examined each agreement and present their findings, in part, through detailed tables which highlight the salient features of these agreements. The paper ties changes in these pre-trial agreements to the pre-trial diversion procedures in the U.S. Attorney's Manual and the implementation of the Organizational Guidelines within the Federal Sentencing Guidelines as well as various memorandums issued by the Department including the Holder Memorandum, the Thompson Memorandum, and the McCallum Memorandum. The article highlights how these agreements have changed over the past 15 years. By analyzing these agreements and explicit charging policies (the Organizational Guidelines, the various DOJ memorandums, and the U.S. Attorney's Manual), the article shows that DOJ corporate charging policy has devolved into an office by office policy and that the terms of a pre-trial agreement depend on which U.S. Attorney's Office is handling the investigation.

Mr. Finder is the former U.S. Attorney for the Southern District of Texas and is now a partner at Haynes & Boone, while Mr. McConnell is an associate at BakerBotts.  Deferred prosecution agreements and non-prosecution agreements have become common features in corporate criminal investigations over the past four years, and the article's analysis adds to the discussion in this developing area of the law. (ph)

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