Forum on Public Policy
Deferred Prosecution and Corporate Criminal Prosecution: A Comparative
Analysis
Walter P. Loughlin, K&L Gates LLP
Abstract
Deferred prosecutions are frequently used in the U.S. as an alternative to prosecution in cases of corporate
crime. In England, the Crime and Courts Act of 2013 adopted the deferred prosecution approach to
corporate crime but with significant differences from the American model. At the same time, there is
pressure for reform in the U.S. which may have the effect of aligning the American use of deferred
prosecution more closely with the procedure now applicable in England and Wales.
Introduction
Traditionally, when a prosecutor is confronted with evidence of a crime, there are three options: decline
the prosecution for reasons of evidentiary weakness or legal obstacle, negotiate a guilty plea on acceptable
terms, or proceed to trial. However, since the early 1990’s in the United States, and since last year in
England, prosecutors have been able to deploy a different weapon in their arsenal with respect to corporate
criminal liability-- the deferred prosecution agreement. (“DPA”) The increasing prominence of such
agreements in the United States, and their advent in England, presents an appropriate occasion for
comparative analysis.
What is a Deferred Prosecution Agreement?
A deferred prosecution agreement is a formal written agreement between a prosecutor’s office and a
corporation with the following typical features: the prosecutor files an indictment setting out the criminal
charges, which are held in abeyance. The prosecution does not proceed as long as the corporation abides
by the terms of the agreement, such as the payment of a fine, restitution to victims, and the implementation
of corporate governance reforms, such as new and strengthened compliance procedures and controls aimed
at reducing the risk of further criminal behavior. The company’s adherence to the terms of the agreement
is often overseen by an independent monitor who submits periodic reports to the prosecutor’s office. The
duration of a DPA can be several years. Some have been considerably longer. If the remediation process is
regarded as a success, the previously filed criminal charges are dismissed.
From Pretrial Diversion for Individuals to Deferred Prosecution for Corporations: The U.S. Model
The modern deferred prosecution had humble beginnings. Many years ago, prosecutors developed what
were called pretrial diversion programs. When it was believed an offender’s behavior had its roots in drug
or alcohol addiction, mental illness, or the like, an agreement was often reached to divert the defendant
from the criminal process to some appropriate social services program. If a defendant‘s issues were
addressed effectively, the prosecution would be dismissed, after an agreed period of time, as long as the
defendant had not committed any another crime during the period of diversion.
1
In the same way that the pretrial diversion programs seek to rehabilitate an individual, with the aim of
reforming behavior to reduce recidivism, deferred prosecution agreements seek the structural reform of
corporate organizations to enhance the prospect that the company will be a law-abiding corporate citizen.
1
See, e.g., Pretrial Diversion Programs: Resea rch Summary, Bureau of Justice Assistance, U.S. Department
of Justice (Oct. 2010)
