Countries around the world are reforming their corporate criminal liability regimes to introduce deferred prosecution agreements (DPAs). DPAs can help deter crime when properly structured. But otherwise they can increase the risk of corporate misconduct. This chapter identifies the steps countries need to take in order to use DPAs to deter corporate crime. It then evaluates the recent reforms adopted in the U.K. and France. Both reforms are a significant step forward, yet further reform is needed. Neither the U.K. nor France can effectively deter corporate crime because both countries have excessively restrictive corporate criminal liability laws that allow companies to profit from many crimes. These laws also undermine efforts to use DPAs to induce firms to self-report or cooperate. France’s reforms raise particular concern because French law provides no genuine incentive to self-report and appears to let companies enter into DPA-like agreements without promptly and fully cooperating with authorities. In addition, concerns remain about whether France is committed to bringing the individuals responsible for corporate crimes to justice. As a result, French DPAs could be counter-productive if they operate primarily to reduce sanctions imposed on companies without enhancing French prosecutors’ ability to sanction those responsible for corporate misconduct.
Edited by Jennifer Arlen
Edited by Jennifer Arlen
Edited by Jennifer H. Arlen
Cindy R. Alexander and Jennifer Arlen
Critics of deferred prosecution agreements claim they undermine deterrence by lowering the cost to firms from reputational damage or stigma resulting from a criminal settlement. We evaluate the claim that the choice of a DPA, instead of a guilty plea, reduces the cost to corporations of reputational damage from a criminal settlement, holding constant other factors such as the identity of the offender and offense magnitude. Criminal settlements cause firms to sustain costs from reputational damage when they cause the release of information that leads interested outsiders—e.g., customers and suppliers—to anticipate an enhanced risk of harm from future dealings with the firm. DPAs could lower the cost of reputational damage if the use of a DPA, instead of a plea, would lead interested outsiders to anticipate a lesser risk of harm from future misconduct, holding all else constant. We consider and reject three potential channels through which the choice of settlement form could plausibly alter the qualitative information about the risk of future misconduct that reaches interested outsiders: direct revelation, prosecutorial selection, and managerial selection. We then turn to the effect of DPAs on the ability of federal agencies to protect their interests by excluding or delicensing firms whose criminal settlement reveals they present an enhanced risk of causing future harm to the agencies’ interests that is best addressed by exclusion instead of mandated reforms. We conclude that agencies may be better able to serve their interests as interested outsiders when prosecutors employ DPAs, rather than pleas, because DPAs leave many agencies free to use permissive exclusion and thus enable them to exclude when, but only when, appropriate.