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Letter to the House Judiciary Subcommittee on Commercial and Administrative Law regarding deferred and non-prosecution agreements for corporations, as proposed in the Accountability in Deferred Prosecution Act of 2009 (H.R. 1947).
Andrew S. Boutros and Jay Schleppenbach discuss the proliferation of clauses in corporate deferred prosecution agreements and settlement agreements barring company representatives from publicly denying the factual basis of the plea or deferred prosecution agreement. Do these so-called “public statements clauses” interfere with the right to present a defense?
Deferred prosecution agreements are almost exclusively used in corporate prosecutions, but they are occasionally offered to individuals. Non-prosecution agreements, on the other hand, may be easily obtained for fact witnesses when defense counsel does not want to take the chance that a client is more culpable than originally thought. What are the most critical factors that influence prosecutors to enter into an NPA or a DPA?
NACDL Update – The National Law Journal reports, according to a forthcoming study conducted by Lawrence D. Finder, Ryan D. McConnell, and Scott L. Mitchell, that the number of deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs) between the Department of Justice and corporations has declined by 60% in 2008. This is a sharp drop from a historic high of 40 DPAs and NPAs in 2007 to only 16 DPAs and NPAs in 2008. The study also reports a significant decline in the inclusion of privilege-waiver provisions in DPA/NPAs.
Deferred Prosecution Agreements (“DPAs”) and Non-Prosecution Agreements (“NPAs”) are pre-trial diversion contracts entered into by the government—usually the Department of Justice—and a potential corporate defendant. Under the terms of a DPA, the government files criminal charges against a company, but holds prosecution of the charges in abeyance until the company satisfies the terms of the DPA. Unlike with DPAs, no charges are filed against companies that enter NPAs so long as they comply with specified sanctions.
President John Wesley Hall's letter to the House Judiciary Subcommittee on Commercial and Administrative Law regarding the use of deferred prosecution agreements (DPA) and non-prosecution agreements (NPA), sometimes in place of civil enforcement.
