Corporate Criminal Prosecutions: How Should DOJ Prosecutors Be Held Accountable?

In a new law review article for the American Journal of Criminal Law, I take a look at the recent (increasing) use of deferred and non-prosecution agreements by the Department of Justice (DOJ) to settle corporate criminal prosecutions. To say that these types of agreements are concerning for those who care about the rule of law is an understatement. The DOJ needs to hold itself accountable to the principles of traditional criminal procedure because the courts and Congress have yet to do so.

The Department of Justice has entered into hundreds of deferred and non-prosecution agreements (DPAs and NPAs) with corporations over the last twenty years, and continues to increase the use of these agreements every year. But has the DOJ grounded these criminal settlements in traditional criminal sentencing procedures? Specifically, do these agreements — which can often include hundreds of millions of dollars in penalties — follow the carefully considered principles of the U.S. Sentencing Guidelines for Organizations? The answer is usually no.

My article looks at the issue through the lens of public choice theory as applied to criminal procedure and concludes that the DOJ is not utilizing the Sentencing Guidelines in a manner consistent with basic notions of government accountability in the criminal justice system. The article uses data collected from over three hundred deferred and non-prosecution agreements and finds that only a small percentage include an analysis of a monetary penalty based on the Sentencing Guidelines. Most agreements seemingly choose a significant monetary penalty without any public acknowledgement of the process by which government officials arrived at the penalty amount.

The government’s use of a non-traditional process to resolve corporate criminal cases should be concerning in the absence of an institutional check such as the Sentencing Guidelines. In most cases, courts are unable or unwilling to even review the agreement. Given the significant harm that can result from a conviction or even an indictment — as Arthur Andersen’s example shows us — it is unsurprising that corporate managers are generally willing to enter into out-of-court agreements, even ones that assess hundreds of millions or billions of dollars in fines.

The DOJ should adopt standardized procedures for future criminal settlements, including a demonstration of the Sentencing Guidelines analysis typically found in plea agreements. While this will not prevent the DOJ from entering into agreements, it will counteract a tendency in these agreements to make criminal allegations that are untethered to sound criminal sentencing policy. Rule of law principles demand that legal institutions hold government prosecutors — the watchmen — accountable for their decisions and reasoning.