Justice for Sale: Non-Prosecution Agreements as Instruments of Inequality

Recent high-profile sex crime cases such as the Bill Cosby case and Jeffrey Epstein case have catapulted the non-prosecution agreement into the public spotlight. Non-prosecution agreements (NPAs) are legally binding arrangements between government agencies such as the Department of Justice and companies or individuals facing a criminal or civil investigation. Under the agreement, the government refrains from filing further charges as long as the company or individual agrees to its demands, which typically requires that companies/individuals either pay a fine or cooperate with the government. [1] Given that NPAs are typically applied to cases dealing with corporate crime, the use of the non-prosecution agreement in the Cosby and Epstein cases was highly unprecedented. The public was particularly alarmed after seeing that both men were able to avoid further prosecution and, in Cosby’s case, walk free. [2] Those petitioning to overturn Cosby and Epstein’s non-prosecution deals argue that the verdict issued by the justice system does not hold offenders liable for their crimes, nor does it provide reparations to victims. Because it allows the wealthy to take advantage of the justice system, non-prosecution agreements fail to properly enforce the law and only perpetuate inequality in the justice system. 

When determining whether or not to use the non-prosecution agreement, attorneys reference the principles of federal prosecution, which provide a list of four relevant considerations to be weighed. [3] Most of the considerations are reasonable, as the manual thoroughly outlines the methods to address them. For example, the value of an individual’s cooperation (consideration #2) is to be determined by an “offer of proof,” an explanation submitted by one’s attorney explaining how material originally deemed irrelevant will lead to valuable evidence, supplementing the attorney’s argument. [4] If the individual’s testimony is indispensable to the case, the prosecutor will consider if it is in the public’s interest to agree to forego prosecution in order to obtain necessary evidence that furthers the trial. The next consideration is relative culpability and criminal history (consideration #3). Under regular circumstances, allowing anyone to forego prosecution would go against public interest. However, the manual urges prosecutors to consider the individual’s apparent culpability relative to the others subject to investigation. Additionally, the individual’s criminal history must be investigated as it would not be in the public’s interest to have essentially bargained away the opportunity to prosecute an individual with a long history of serious criminal offenses in order to obtain the conviction of another individual being charged for crimes less severe. [5] Lastly, the manual states that the interests of victims (consideration #4) is to be determined by referencing the Crime Victims’ Rights Act (CVRA). [6]

In comparison to the three considerations aforementioned, the first consideration, “the importance of the case,” extends prosecutorial discretion, with little context or instruction on how to approach it. [7] Referred to as the “threshold consideration,” the importance of the case, while being the most vague and potentially subjective, has the potential to drastically shift a prosecutor’s decision to apply the non-prosecution agreement. Despite the manual’s suggestion to apply the non-prosecution agreement to issues of national importance or in cases important to achieving an effective enforcement of criminal laws, nowhere in the manual does it provide guidance in determining a case’s importance relative to those interests. [8] This allows for a broad interpretation of the manual which gives prosecutors full discretion to apply the legal tool as they deem necessary. [9]  This privilege creates a system in which federal prosecutors have the power to decide under which particular conditions the law should be enforced and when one can turn a blind eye. [10] Most white-collar cases handled by the Department of Justice are deemed “important” as the government is responsible for protecting the economy and preventing any potential harm to it. However, in cases such as Cosby’s or Epstein’s, the government’s interests are not as immediately clear. In both cases, witness cooperation would have been crucial to reaching a conviction as the witness in question is the defendant. [11] Nonetheless, the witness/ defendants’ relative culpability and criminal history along with the interest of their victims should have prevented prosecutors from pursuing the use of the non-prosecution agreement. Thus, the only consideration that would have allowed prosecutors to seek a non-prosecution agreement would be the importance of the case. By depending on the most lenient consideration, prosecutors were able to prevent further investigation into the crimes committed by Cosby and Epstein. This brings into question whether or not it is fair that non-prosecution agreements have been reserved only for individuals or companies involved in newsworthy cases. [12] 

One might argue that the practice has been reserved for high-profile cases because it provides a greater deterrent to criminal conduct than in low-profile cases. [13] In terms of high profile corporate cases, non-prosecution agreements require that companies cooperate fully with the prosecution,whether that means paying a fine or agreeing to monitoring for a set time period. If the company complies with the agreement, ensuring that the conduct does not happen again, the prosecution will not charge the company for committing an offense. However, if the company fails to comply with the terms of the agreement, charges may be filed, thereby publicly condemning its conduct and possibly diminishing its credibility as a company. Still, it is difficult to prove a definite link between the non prosecution agreement itself and the deterrence of future crimes committed by a company. [14] Regardless of whether or not companies are able to avoid public condemnation via prosecution, the public’s perception of the company is likely to turn negative as people are more likely to notice the good deal companies received instead of promises of company reform. [15] In any case, by deliberately foregoing retribution, there is a risk of creating the perception that the government condones the misconduct or crimes associated with the non prosecution agreement. 

Whether or not the non-prosecution agreement is effective in deterring crime, limiting its use to only high-profile cases bolsters the argument that certain businesses are above the law or “Too Big to Jail.” [16] Advocates of this belief claim that there are greater harms to society that come as a result of prosecuting companies rather than offering them alternatives to avoiding prosecution. Non-prosecution agreements, in this case, are then considered useful tools that punish and reform companies without bringing down the rest of society. However, this practice brings in the same aforementioned concerns where there appears to be a double standard for companies. The same applies to individuals with wealth or influence. [17] For instance, in the case of the United States of America v. Sheldon Silver (2018), the US District Court for the Southern District of New York entered into a non prosecution agreement with a witness, Dr. Robert Taub who had been an accomplice in former New York Assembly Speaker Sheldon Silver’s corrupt dealings. Despite abetting in a fraudulent scheme resulting in the embezzlement of millions of taxpayer dollars, Dr. Taub was able to step away from the case, unscathed. [18] While those who commit crimes worth millions avoid prosecution, those guilty of petty theft are facing time in jail. Allowing large corporations and wealthy individuals to avoid prosecution out of fear of hurting the economy or provoking powerful people makes the non-prosecution agreement yet another legal tool used to discriminate against anyone who isn’t considered part of the elite by the American justice system.    

Without reform, the non-prosecution agreement should not be considered a valid legal tool. Under the current instruction of the DOJ, the application of the non-prosecution agreement relies too heavily on the importance of the case. As outlined prior, the importance of the case is the most vague consideration,yet it is the threshold that, once crossed, makes prosecutors want to apply the tool. Permitting such a broad interpretation of the manual is exactly what perpetuates inequality. To prevent further abuses, prosecutors should be required to justify their decision to apply the tool or seek the approval of the judge presiding over the case. [19] As for cases handled by the DOJ, while the Freedom of Information Act allows the public to access data on the number of non-prosecution agreements made by the government, there would be greater transparency if other courts reported the details of and the number of non-prosecution agreements used as well. Transparency and greater oversight of the tool’s use would improve the public’s confidence in the justice system and would hopefully encourage greater access to the non-prosecution agreement. 

Edited by Anna Reis

Sources: 

[1] “2021 Year -End Update on Corporate Non-Prosecution Agreements and Deferred Prosecution Agreements”, Gibson Dunn, February 3, 2022, https://www.gibsondunn.com/wp-content/uploads/2022/02/2021-year-end-update-on-corporate-non-prosecution-agreements-and-deferred-prosecution-agreements.pdf. 

[2] Commonwealth of Pennsylvania v. William Henry Cosby Jr., 252 A.3d 1092 (Pa, 2021)

[3] “Principles of Federal Prosecution,” The United States Department of Justice, July 2020, 9-27.620, https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution#9-27.620. 

[4] “Principles of Federal,” 9-27.60.

[5] “Principles of Federal,” 9-27.60.

[6] “Principles of Federal,” 9-27.60.

[7] “Principles of Federal,” 9-27.60.

[8] “Principles of Federal,” 9-27.60.

[9] Melanie D. Wilson, "Prosecutors Doing Justice through Osmosis - Reminders to Encourage a Culture of Cooperation," American Criminal Law Review 45, no. 1 (Winter 2008): 67-114

[10] Uhlmann, David M., “Deferred Prosecution and Non-Prosecution Agreements and the Erosion of Corporate Criminal Liability.” Maryland Law Review Vol. 72, No. 4, 2013

[11] United States of America v. Jeffrey Epstein, 425 F. Supp. 3d 306 (S.D.N.Y. 2019)

[12] Jacobs, Brian. “Non-Prosecution Agreements: Reserved for Vips?” Forbes. Forbes Magazine, February 10, 2016. https://www.forbes.com/sites/insider/2016/02/09/non-prosecution-agreements-reserved-for-vips/?sh=1fdd859272bd. 

[13] Koehler, Mike. “Measuring the Impact of Non-Prosecution and Deferred Prosecution Agreements on Foreign Corrupt Practices Act Enforcement.” UCDavis Law Review 49, no. 497 (2015): 12–13. https://doi.org/https://lawreview.law.ucdavis.edu/issues/49/2/symposium/49-2_Koehler.pdf. 

[14] Small, Christopher, Gus De Franco, and Aida Wahid. “The Effect of Deferred Prosecution Agreements on Firm Performance.” (2019). 

[15] Uhlmann, David M. “ Deferred Prosecution and Non-Prosecution Agreements and the Erosion of Corporate Criminal Liability.” University of Michigan Law School: Public Law and Legal Theory Research Paper Series, no. 352 (2013).  

[16] Bourjaily, Gordon. “DPA DOA: How and why Congress should bar the use of deferred and non-prosecution agreements in corporate criminal prosecutions.” Harvard Journal on Legislation 52(2): 543-569 

[17] United States of America v. Sheldon Silver, 15-CR-93 (VEC) (S.D.N.Y. 2018) 

[18] Martinez, Joseph P., "Unpunished criminals: The social acceptability of white collar crimes in America" (2014). Senior Honors Theses & Projects. 382. 
[19] The United States Department of State, The Freedom of Information Act, January 2022, https://foia.state.gov/learn/foia.aspx