Wednesday, January 30, 2008

Proposed Legislation on Deferred Prosecution Agreements

One need only look at Carrie Johnson's Washington Post article of today to realize the importance of deferred prosecution agreements and the controversy on the appointment of monitors. The article focuses on how Attorney General Mukasey, prior to his approval as AG, had been a finalist for such an appointment. In the background is legislation proposed by Rep. Frank Pallone (D-NJ) which would provide transparency and oversight on some of the existing DOJ practices with respect to deferred prosecution agreements.  It reads as follows:

110th CONGRESS

2d Session H. R. 5086

To require the Attorney General to issue guidelines delineating when to enter into deferred prosecution agreements, to require judicial sanction of deferred prosecution agreements, and to provide for Federal monitors to oversee deferred prosecution agreements.

IN THE HOUSE OF REPRESENTATIVES January 22, 2008 Mr. PALLONE introduced the following bill; which was referred to the Committee on the Judiciary A BILL To require the Attorney General to issue guidelines delineating when to enter into deferred prosecution agreements, to require judicial sanction of deferred prosecution agreements, and to provide for Federal monitors to oversee deferred prosecution agreements.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. DEFERRED PROSECUTION AGREEMENT GUIDELINES.

(a) In General- The Attorney General shall issue guidelines delineating when United States attorneys should enter into deferred prosecution agreements, including appropriate factors for United States attorneys to consider in determining whether to enter such agreements as described in subsection (b).

(b) Appropriate Factors for Consideration- Appropriate factors for consideration in the determination of whether to enter into a deferred prosecution agreement include--

(1) the potential harm of entering into a deferred prosecution agreement to employees, shareholders, and other stakeholders of the corporation that is to enter into the deferred prosecution agreement who are not potential parties to litigation relative to the corporate wrongdoing;

(2) the degree of cooperation by a corporation that is to enter into a deferred prosecution agreement with investigators including the corporation's willingness to provide documents and make available for questioning employees, officers, and directors of the corporation;

(3) remedial action taken by the corporation that is to enter into a deferred prosecution agreement in response to wrongdoing such as internal investigation, dismissal of employees, acknowledgment of wrongdoing, payment of restitution, and other structural, management, and policy changes;

(4) availability of criminal charges against specific employees who may have engaged in illegal acts relative to the corporate wrongdoing; and

(5) availability of sufficient alternative punishments or remedial actions pursuant to a deferred prosecution agreement.

SEC. 2. JUDICIAL APPROVAL OF DEFERRED PROSECUTION AGREEMENTS.

(a) In General- A deferred prosecution agreement shall be approved by a United States district court judge or a United States magistrate judge in the United States district court where criminal charges would be prosecuted by a United States attorney.

(b) Submission of Deferred Prosecution Agreement- A deferred prosecution agreement shall be submitted to the appropriate United States district court where criminal charges would be prosecuted by a United States attorney to receive judicial sanction.

(c) Judicial Review and Sanction- A United States district court judge or a United States magistrate judge shall review the terms of a deferred prosecution agreement to ensure that the agreement comports with public interest and all applicable laws and legal precedent before authorizing the deferred prosecution agreement to be entered into by the parties.

SEC. 3. FEDERAL MONITORS.

(a) In General- A Federal monitor shall oversee a deferred prosecution agreement.

(b) Appointment of Federal Monitors- A Federal monitor shall be appointed by an independent third party (a United States district court judge or a United States magistrate judge) from a pool of pre-qualified firms or individuals (or both).

(c) Qualifications of Federal Monitors- A Federal monitor shall have experience in criminal and civil litigation.

(d) Payment of Federal Monitors- A Federal monitor shall be paid according to a pre-determined fee schedule set by the United States district court.

(e) Report Requirement in Deferred Prosecution Agreement-

(1) A deferred prosecution agreement shall include a requirement that a Federal monitor submit reports to the United States attorney and to the United States district court.

(2) A deferred prosecution agreement shall include the number and frequency of reports required by a Federal monitor.

SEC. 4. BREACH OF DEFERRED PROSECUTION AGREEMENTS. Upon request from a United States attorney, the presiding judge in the district court where a deferred prosecution agreement was approved shall determine if the deferred prosecution agreement has been breached.

(esp) (w/ a hat tip to Stephanie Martz)

http://lawprofessors.typepad.com/whitecollarcrime_blog/2008/01/proposed-legisl.html

Deferred Prosecution Agreements | Permalink

TrackBack URL for this entry:

http://www.typepad.com/services/trackback/6a00d8341bfae553ef00e55011c0838834

Listed below are links to weblogs that reference Proposed Legislation on Deferred Prosecution Agreements:

Comments

Does the bill not contain a definition of "deferred prosecution agreement"?

Posted by: Peter G | Jan 30, 2008 3:35:23 PM

Post a comment