CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, January 19, 2018

Shiner & Ho on Deferred Prosecution Agreements

Roger Shiner and Henry Ho (University of British Columbia Okanagan and Melbourne Law School) have posted Deferred Prosecution Agreements and the Presumption of Innocence (Criminal Law and Philosophy, Forthcoming) on SSRN. Here is the abstract:
A deferred prosecution agreement, or DPA, allows a corporation, instead of proceeding to trial on a criminal charge, to settle matters with the state by acknowledging the facts on which any charge would be based, paying a reduced fine, and agreeing to change the way they conduct business. Critics of DPAs have suggested that, because the defendant corporation must pay a fine and submit to structural reform without having been found guilty at trial, DPAs violate the Presumption of Innocence. This paper argues that they do not. The paper appeals to the role of civic trust in a liberal political community. The obligations a corporation assumes in a DPA can be framed as a reasonable retributive response to a breach by that corporation of the community’s laws, and an appropriate reassurance by that corporation to the community that such breaches will not reoccur. This framing is sufficient to deny that DPAs violate the PoI.

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