Deferred and nonprosecution agreements are the Department of Justice’s (“DOJ”) new weapons of choice for “reforming” corporations. Rather than risk the severe collateral consequences that accompany an indictment and conviction, companies now are offered the opportunity to cooperate, pay massive fines, commit to elaborate undertakings, and remain under probation-like supervision for some period of time in exchange for an ultimate dismissal of criminal charges. In this novel and rapidly evolving legal area, Professor Brandon Garrett has identified difficult, cutting-edge problems and posed thorny questions.
Some of Garrett’s observations are undoubtedly correct. He is right that judicial review of DPAs is a pipedream and will remain limited during the negotiation and performance stages of these agreements. This is so, of course, not only because DOJ will be reluctant to surrender its discretion to a neutral third party decisionmaker but also because these agreements are necessarily creatures of compromise, an area in which courts generally do not play with an active or heavy hand except when a breach is claimed. And by stressing that DOJ “has never defined how its prosecutors measure compliance” with the terms of DPAs, Garrett has highlighted an exceedingly critical piece of the problem.
But while Garrett proposes creative ways of thinking about DPAs and hints at some of the difficulties these agreements have spawned for companies, he fails to offer his own, specific, practical proposal for reform. This is a significant oversight, since the addition of DPAs to DOJ’s playbook has caused real and consequential economic, reputational, and (at times) life-changing harm to companies.