Compared to common criminals, corporations relish a number of benefits in case of legal action against them due to the possibility of entering into a deferred prosecution agreement (DPA). The major advantage of such practice is avoiding trial and imprisonment (Apuzzo). Corporations refrain from potentially catastrophic collateral aftermath of being involved in the criminal justice system (Bourjaily 543). The conditions of a DPA presuppose that if the defendant succeeds in fulfilling the provisions required by the prosecutor, the charges are dismissed, and the case is closed (Reilly 839). Thus, a corporate defendant’s advantage is that unlike an individual defendant, their criminal misconduct, however serious, can almost always be alleviated by following the agreement’s terms (Reilly 840). Also, the company can retain its reputation if it avoids legal prosecution (Bisgrove and Weekes 420). Additionally, corporations save money on avoiding lengthy legal proceedings and preventing punishment of those employees who were not involved in criminal activity. This way, the so-called whole company effect can be avoided, and innocent workers do not feel the negative implications of their colleagues’ wrongdoings.
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Other stakeholders impacted by resolving corporate crimes with the help of DPA are stockholders and customers. For them, DPA seems to offer positive outcomes since they can avoid negative consequences of criminal prosecution acts against corporations (Reilly 842). If an organization’s accounts do not become frozen, and the company continues working, innocent parties will not suffer. Research indicates that clients tend to break contracts with corporations that have lost their trust due to financial scandals and legal action (Bourjaily 546). Therefore, the use of a DPA has beneficial outcomes for all stakeholders.
However, despite DPA’s advantages for stakeholders, there is a major discussion in the modern criminal justice system as to its negative effects. First of all, judges and prosecutors are concerned with the fact that by using a DPA, the justice system loses the opportunity to “recover the proceeds of any wrongdoing” or affect the company’s governance (Bisgrove and Weekes 418). Another concern is related to the prosecution of fewer individuals in case of employing a DPA (Reilly 842). Additionally, experts in criminal justice consider that there is an increased likelihood of “abuse and exploitation” in the processes of negotiation and implementation of agreements (Reilly 843). Further, a DPA does not provide sufficient transparency or adequate access to all interested parties in the justice process (Reilly 843).
Bourjaily identifies two dangers of the DPA: creating “a shadow system of adjudications” and promoting a perception that some corporations are “too big to jail” (547, 549). The first problem lies in the impossibility to control the negotiations under the DPA approach. The second danger is that the double standards used for prosecuting some corporations undermine the principles of fairness in which people believe (Bourjaily 549). Therefore, it is necessary to revise the DPA principles and minimize the risk of citizens’ disappointment and disbelief in the system of justice.
Individuals who are accused of a white-collar crime should be treated the same as corporations. Large companies escape responsibility too easily, and many judges express their concern about the lack of fairness between the approaches used to prosecute individual and collective white-collar crimes (Apuzzo, Reilly 840). If the system makes allowances to corporate wrongdoers, it should create the same conditions for individual white-collar criminals. Either this or revising the DPA system, but terms should be equal for all kinds of lawbreakers.
Apuzzo, Matt. “Criminals Should Get Same Leniency as Corporations, Judge Says.” The New York Times. 2015, Web.
Bisgrove, Michael, and Mark Weekes. “Deferred Prosecution Agreements: A Practical Consideration.” Criminal Law Review, vol. 6, 2014, pp. 416-438.
Bourjaily, Gordon. “DPA DOA: How and Why Congress Should Bar the Use of Deferred and Non-Prosecution Agreements in Corporate Criminal Prosecutions.” Harvard Journal on Legislation, vol. 52, pp. 543-569.
Reilly, Peter. “Corporate Deferred Prosecution as Discretionary Injustice.” Utah Law Review, vol. 2017, no. 5, 2017, pp. 839-883.