H.R. 1947 requires the regulation and disclosure of deferred prosecution agreements (“DPAs”) and non-prosecution agreements (“NPAs”) made between the Department of Justice and potential corporate defendants.
Specifically, it calls for the Attorney General to issue public written guidelines outlining; (1) the terms and conditions that are appropriate in such agreements; (2) the process to be followed by the Department of Justice in evaluating whether terms of the agreement have been satisfied; (3) the circumstances in which the appointment of an independent monitor is warranted and the duties and authority of such a monitor; and (4) the situations where NPAs should be opted for over DPAs.
The Act requires that all DPAs be filed with, and approved of, an appropriate U.S. district court. Furthermore, the terms and conditions of all DPAs shall be posted on the Department of Justice’s website, along with a national list of persons qualified to be independent monitors.
NACDL does not generally oppose H.R. 1947. However, to conserve judicial resources and prevent judicial intrusion into inherently executive decisions, NACDL supports revising the Act to require judicial review of DPAs and NPAs only in the event of a breach. Further, to prevent unnecessary harm to a business organization’s reputation, we believe that only general statistics, not DPAs and NPAs in their entirety, should be mandated for publication. NACDL sent a letter summarizing these views to the Subcommittee on Commercial and Administrative Law on June 25, 2009.
Resources on H.R. 1947
June 25, 2009, NACDL Letter
to House Judiciary Subcommittee on Commercial and Administrative Law on
DPAs and NPAs
Shana-Tara Regon, Proposal Seeks More Oversight Of Justice Department's Pre-Trial Diversion Agreements, Washington Legal Foundation (September 2009)
November 19, 2009, NACDL
Letter on H.R. 1947 and the Hearing on Transparency and Integrity in Corporate