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According to the U.S. Department of Justice, deferred prosecution agreements are said to occupy an "important middle ground" between declining to prosecute on the one hand, and trials or guilty pleas on the other. A top DOJ official has declared that over the last decade, the agreements have become a "mainstay" of white collar criminal law enforcement; a prominent criminal law professor calls their increased use part of the "biggest change in corporate law enforcement policy in the last ten years."
However, despite deferred prosecution's apparent rise in popularity among law enforcement officials, this Article sets forth the argument that this alternative dispute resolution vehicle makes a mockery of the criminal justice system by serving as a disturbing wellspring of unfairness, double standards, and potential abuse of power. This Article concludes by recommending that Congress pass legislation to halt the DOJ's ability to use deferred prosecution agreements in the context of corporate criminal law enforcement. The Article suggests that if this goal cannot be realized, these agreements will continue to greatly compromise the pursuit of justice, consistency in the rule of law, and basic notions of fairness.
INTRODUCTION
On December 12, 2012, the New York Times editorial page stated the following:
It is a dark day for the rule of law. Federal and state authorities have chosen not to indict HSBC, the London-based bank, on charges of vast and prolonged money laundering, for fear that criminal prosecution would topple the bank and, in the process, endanger the financial system. They also have not charged any top HSBC banker in the case, though it boggles the mind that a bank could launder money as HSBC did without anyone in a position of authority making culpable decisions.1
Instead of indictment and prosecution, HSBC was invited to join what some call "Club Fed Deferred"2-a club that has a large corporate membership3-by entering into a deferred prosecution agreement with the U.S. Department of Justice wherein the bank would (1) pay money through forfeiture and other penalties, (2) work to enhance its internal controls, and (3) submit to the oversight of an external monitor for a period of five years.4 In assessing this end result, the New York Times editorial commented:
When prosecutors choose not to prosecute to the...