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Justice Out of the Shadows: Federal Deferred Prosecution Agreements and the Political Order

Deferred Prosecution Agreements and Non-prosecution Agreements raise serious legal and policy issues, including:

  1. National sovereignty. The DOJ regularly polices activities by foreign corporations, with little apparent regard for the foreign-policy implications of its efforts.
  2. Free speech. DPAs and NPAs often require companies to agree to statements of facts and include “non-contradiction clauses” that restrict corporate speech, including in civil litigation.
  3. Deputizing private businesses to undertake law-enforcement activities. The DOJ uses the threat of prosecution to enlist corporations to police misconduct—even that of third-party contractors and vendors—without clear statutory authorization.
  4. Lack of judicial oversight and transparency. NPAs lack any judicial oversight and DPAs’ judicial review is limited to enforcing the procedural terms of the Speedy Trial Act, which means that the DOJ’s actions are essentially unilateral.

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