Wednesday, December 19, 2007

Creating a Structure for Deferred Prosecution Agreements

New Jersey Congressman Bill Pascrell, Jr., has proposed that the House Judiciary Committee and the Department of Justice work together on legislation, or at least adopt internal policies, to guide the drafting and implementation of deferred prosecution agreements.  Hardly a month goes by without a DPA or non-prosecution agreement being reached with a company under investigation, the most recent one in the District of Rhode Island with the local Blue Cross & Blue Shield insurance provider related to improper payments to elected officials (see earlier post here).  While these agreements are now the preferred means for resolving a wide array of corporate crime investigations, there are no guidelines for when a company can receive one or how the outside monitors, a common feature of most agreements, should be selected and compensated. 

Representative Pascrell submitted to the Committee and Department a Statement of Principles on Deferred Prosecution Agreements that outlines four areas that should be addressed:

  1. Require guidelines on deferred prosecution agreements;
  2. Restore judicial oversight of deferred prosecution agreements;
  3. Take the selection of federal monitors out of the hands of U.S. Attorneys;
  4. Require full disclosure of deferred prosecution agreements.

A letter to Attorney General Mukasey from Congressman Pascrell (available below) notes that these issues could be addressed by internal DoJ guidelines, but at this point there has not been any apparent move in that direction.  Now that Congress has started to pay attention to DPAs, the issue most likely is whether future regulation is done internally or through legislation.  For the U.S. Attorneys who have enjoyed substantial freedom in crafting these agreements, the process of negotiating and implementing DPAs probably will get a bit more complicated. (ph)

Download statement_of_principles_on_deferred_prosecution_agreements_dec_17_2007.pdf

Download letter_from_rep_pascrell_to_ag_mukasey_dec_17_2007.pdf

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