Washington Legal Foundation — Proposal Seeks More Oversight of Justice Department’s Pre-Trial Diversion Agreements

On April 2, 2009, Rep. William Pascrell (D-NJ) introduced the Accountability in Deferred Prosecution Act to address the lack of standards governing Deferred Prosecution Agreements (“DPAs”) and Non-prosecution Agreements (“NPAs”). It would also require the Attorney General to establish certain procedures to ensure the independence and accountability of corporate monitors. This could address some of the well-publicized problems of overcompensated or ethically conflicted monitors. The bill does, however, raise other questions. First, the legislation could result in DOJ issuing guidelines that curtail the use of DPAs and instead favor indictment. Second, DOJ might issue guidelines that have negative consequences for companies or their employees. Third, the bill’s mandated public disclosure of all DPAs on the DOJ website would likely please some parties who find transparency beneficial, but would draw objections from others who consider public disclosure a disincentive to entering into the agreements-particularly in the case of non-prosecution agreements.

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