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Deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs) are proliferating. In the four years between 2002 and 2005, prosecutors and major corporations entered into twice as many of these agreements (also called pretrial diversion agreements) as in the previous ten years combined.1 The trend appears to be accelerating. According to one estimate, thirteen DPAs and NPAs were executed in 2006,2 and another thirty-seven corporate diversion agreements were publicly announced in 2007.3 Some believe that pretrial diversion has become the "standard" means for concluding corporate criminal investigations.4 In short, DPAs and NPAs are tools that have transformed the way federal prosecutors and defense counsel interact The marked increase in their use is arguably the most profound development in corporate white collar criminal practice over the past five years.
In the typical corporate deferral scenario, the prosecutor files a criminal charge against a company, but agrees not to prosecute the claim so long as the entity complies with the terms of a deferral agreement.5 (In a non-prosecution, or "cooperation" scenario, no charges are filed.)6 The company avoids the severe collateral consequences of indictment7 by voluntarily entering a probationary period during which it will (1) enact substantial internal reforms and (2) cooperate with the government, effectively helping prosecutors build a case against individual employees.8 The company also makes restitution payments, and often submits to federal monitoring. If at the end of the deferral period the prosecutor is satisfied that the company has fulfilled its obligations, he or she dismisses the charges. If, on the other hand, the prosecutor perceives that the company is failing or has failed to abide by the terms of the agreement, the government reserves the right to declare a breach and to proceed criminally against the corporation.9
Corporate pretrial diversion agreements are a byproduct of a relatively recent shift in Department of Justice (DOJ) policy. This shift reflects an evolving view of the purpose and function of the criminal law in the corporate context. In a post-Enron world, DOJ officials appear to believe that the principal role of corporate criminal enforcement is to reform corrupt corporate cultures-that is, to effect widespread structural reform10-rather than to indict, to prosecute, and to punish.11 By focusing more on prospective questions of corporate governance and compliance, and...