A deferred prosecution agreement (DPA), which is very similar to a non-prosecution agreement (NPA), is a voluntary alternative to adjudication in which a prosecutor agrees to grant amnesty in exchange for the defendant agreeing to fulfill certain requirements. A case of corporate fraud, for instance, might be settled by means of a deferred-prosecution agreement in which the defendant agrees to pay fines, implement corporate reforms, and fully cooperate with the investigation. Fulfillment of the specified requirements will then result in dismissal of the charges.
Since 1999, the United States Department of Justice (DOJ) has set forth guidelines concerning the prosecution of business organizations and corporations. The United States Attorneys' Manual (USAM) of the DOJ allows consideration of non-prosecution or deferred prosecution of corporate criminal offenses because of collateral consequences and discusses plea agreements, deferred prosecution agreements, and non-prosecution agreements in general. Under the U.S. Sentencing Guidelines, a past deferred prosecution will not count toward a defendant's criminal history, if there was no finding of guilt by a court and the defendant did not plead guilty or otherwise admit guilt in open court. This is in contrast to a deferred disposition, which typically does involve such a finding or admission.
According to Rachel Barkow and Anthony Barkow, both of NYU Law School, there has been a dramatic increase in the use of DPAs and NPAs by federal prosecutors, increasing from eleven between 1993 and 2001, to 23 between 2002 and 2005, to 66 between 2006 and 2008. This kind of regulation-by-prosecutor has also occurred at the state level, for example at the New York Attorney General’s Office under Eliot Spitzer and Andrew Cuomo. Outside monitors are appointed in about half of all DPAs.
- Giudice, Lauren. "Regulating Corruption", Boston University Law Review, Vol. 91, p. 347, 361 (2011) (DPAs are typically filed with a court whereas NPAs are not).
- The American Heritage Dictionary of Business Terms. Houghton Mifflin Harcourt Publishing Company. 2009.
- Corporate Prosecution Principles Resource Page
- United States Attorneys' Manual § 9-28.1000 (2008) Collateral Consequences
- United States Attorneys' Manual § 9-16.325 (2008) Plea Agreements, Deferred Prosecution Agreements, Non-Prosecution Agreements and "Extraordinary Restitution"
- U.S.S.G. § 4A1.2(f) (2012)
- Ross, Colin. "Prosecutors in the Boardroom", mainjustice.com (June 30, 2011).
- Barkow, Anthony and Barkow, Rachel. Prosecutors in the Boardroom: Using Criminal Law to Regulate Corporate Conduct, p. 4 (NYU Press, 2011).