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Deferred Prosecution Agreements and the Presumption of Innocence

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Abstract

A deferred prosecution agreement, or DPA, allows a corporation, instead of proceeding to trial on a criminal charge, to settle matters with the state by acknowledging the facts on which any charge would be based, pay a reduced fine, and agree to change the way they conduct business. Critics of DPAs have suggested that, because the defendant corporation must pay a fine and submit to structural reform without having been found guilty at trial, DPAs violate the Presumption of Innocence. This paper argues that they do not. The paper appeals to the role of civic trust in a liberal political community. The obligations a corporation assumes in a DPA can be framed as a reasonable retributive response to a breach by that corporation of the community’s laws, and an appropriate reassurance by that corporation to the community that such breaches will not reoccur. This framing is sufficient to deny that DPAs violate the Presumption of Innocence.

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Notes

  1. Use of DPAs is still largely confined to the U.S. The U.K. passed legislation in 2014 authorizing DPAs for financial crimes: Crime and Courts Act 2013 c. 22, Schedule 17. Canada has a new scheme of administrative agreements that have some aspects in common with DPAs: see Franklyn and Kuzma 2015. According to a recent media report, the current government is considering whether to launch a DPA system in Canada: see Van Praet 2017.

  2. For some figures, see Uhlmann (2013, 1315ff.), Garrett (2014, 5–12). See also http://lib.law.virginia.edu/Garrett/corporate-prosecution-registry/index.html for a continually updated repository of raw data. This website is the successor to Brandon L. Garrett and Jon Ashley, Federal Organizational Prosecution Agreements, University of Virginia School of Law, at http://lib.law.virginia.edu/Garrett/prosecution_agreements/home.suphp. Profs. Garrett and Ashley deserve the gratitude of all scholars working in this area for their creation and maintenance of these databases.

  3. The account here draws on Jennifer Arlen’s summary (Arlen 2017, 4–5): see also (Garrett 2014, Chapter 3). The account is descriptive only: the normatively salient features are discussed in Sect. 2 below.

  4. See (Garrett 2014, 68–9): he shows that true fines tend to form a relatively small part of the gross financial burden imposed upon the defendant corporation. Colloquially, these different categories of financial penalty are usually not distinguished, all being called “fines”. For simplicity’s sake, we follow the colloquial practice here.

  5. For the important distinction between “coverage” and “protection” where constitutional rights are concerned, see Schauer (1982, 89–92). On corporations and the PoI generally, see Shiner (2014).

  6. Douglas Husak comments: “Of course, corporations cannot literally suffer or be deprived of liberty. Thus we have little option but to devise a novel sanction in this domain” (Husak 2014, 354). With respect, the inference is too quick. The possibility must be considered that, even though corporations cannot literally be deprived of liberty, some ways that they are treated by the state invoke the same, or very similar, normative questions as does the literal deprivation of the liberty of a natural person.

  7. NPAs are similar to DPAs except that the state agrees not to prosecute at all and any financial expenditure is framed as restitutionary rather than punitive: but it is still financial expenditure that absent the NPA in all likelihood would not have occurred.

  8. Many DPAs, perhaps even the majority of them, arise in the context of so-called quasi-criminal or regulatory offences, rather than “true” criminal offences. A thorough discussion of the present topic would have to consider whether the argument given in this paper would apply equally well to such offences, but we must here leave that matter aside.

  9. https://www.justice.gov/usam/usam-9-28000-principles-federal-prosecution-business-organizations#9-28.1000, at 9-28.300.

  10. For explorations of this commonality, see Arlen (2016, 212ff) and Arlen (2017, 5ff). See also Husak’s discussion of “social engineering” (Husak 2014, 362ff.).

  11. The current record high fine is the USD1.9b. paid by Hong Kong and Shanghai Bank in 2012 to settle a money-laundering charge.

  12. Husak by contrast thinks that the proper goals of criminal justice might well be served by permitting violations of the Presumption of Innocence in appropriate circumstances (Husak 2014, 363). Antony Duff also suggests that pre-trial detention may have to be acknowledged as a justified violation of the Presumption of Innocence (Duff 2013a, 128; Duff 2013b, 185). Federico Picinali’s justification for violating the Presumption of Innocence in regulatory offences is too weak: that a violation of a procedural safeguard such as the Presumption of Innocence is not justified if and only if either the safeguard is inconsistent with the applicable regulatory duty, or if consistent there are reasonable grounds for the defendant to complain about the denial of the safeguard (Picinali 2017, 686).

  13. We do not defend the broad normative background sketched here other than by putting it to work to develop what we hope are intuitively acceptable conclusions.

  14. See, for example, Friedman (1982), Nozick (1974).

  15. See, for example, Bittle (2012), Tombs and Whyte (2015).

  16. See Duff (2012, 2013a, b). For some scepticism about the value of the idea of “civic trust” in analysis of the Presumption of Innocence, see Lippke (2016, Chapter 4). We acknowledge Duff’s influence here, but we are not aiming to elucidate his concept, nor should it be assumed that he would endorse or even condone the use of the term here. Our understanding of the term sees it as the political version of Stanley Cavell’s concept of “acknowledgment” in the case of human relationships: the humanity of others cannot be asserted or denied, but only acknowledged or avoided. See Cavell (1969, Chapters 9 and 10) and Cavell (1979, Part IV). Cavell is notorious for his allusive way of writing, but one must try … “To speak sensibly of seeing or treating or taking persons … will suppose there is some competing way in which persons … may be seen or treated or taken. … But it is none to clear what possibility is being envisaged here. … What else could a person be other than a person? … I have found that the hedging of my acknowledgment of humanity in others hedges my own humanity …. Has this use of the concept of acknowledgment been justified, its use to describe something owed another simply as a human being, the failure of which reveals the failure of one’s own humanity? … It is a mark of insanity not to know that we have duties to others as human beings, and that we show our humanity in performing them. … The alternative to my acknowledgment of the other is not my ignorance of him, but my avoidance of him. … The problem of others may not be fundamentally epistemological but fundamentally metaphysical.” (1979, 372, 389, 397, 435). See also Norris (2006) and Cohen (2006).

  17. List and Pettit (2011, 173). A similar view is defended by Dubbink and Smith (2011, 229–38): they speak of corporations as “administrators of duty.” See also Shiner (2014), Sect. 4.

  18. As a law and economics scholar Richard Epstein is, of course, committed to an economic interpretation of this normative structure. However, our claim is that the structure has independent value for understanding DPAs even if the relevant norms are not narrowly economic or even social welfare norms.

  19. We should note, however, that for some critics this fact constitutes a serious moral objection to DPAs: see Uhlmann (2013) and Uhlmann (2016).

  20. See the extended discussion in Hess and Dunfee (2003).

  21. Arlen has recently argued vigorously that the DPA regime indeed violates the rule of law: see Arlen (2016).

  22. These are expressions Duff uses in discussing due diligence requirements in strict liability offences: see Duff (2012, 55).

  23. The difficulty with Epstein’s approach to DPAs (Epstein 2011) is precisely that he ignores the fact that DPAs deal with alleged breaches of the criminal law. He focuses solely on analyzing the DPA qua agreement reached by bargaining.

  24. As is argued by some critics of DPAs: see the references to “stick-up”, “extortion”, and “shake-down” cited at the beginning of this paper.

  25. Garrett, however, argues that the courts who sign off on DPAs should play a more active role in policing the content of the DPAs than they typically do. He believes that the public interest in the control of corporate crime would thereby be better served. See Garrett (2014) and Garrett (2018). Not everyone agrees: see Baer (2016), reviewing Garrett (2014).

  26. See Duff’s trio of papers (2012, 2013a, b).

  27. Many discussions of the advantages of DPAs refer to these beneficial “collateral consequences” of DPAs. This enthusiasm presents a discordant counter-melody to the too frequent disparagement of collateral consequences in the case of crime by natural persons. This issue also is both important and beyond the scope of this paper.

  28. A much earlier version of this paper was presented at a Workshop on the Presumption of Innocence, Free University of Amsterdam, December 2013. We thank Antony Duff, Anne Ruth Mackor, and Johannes Keiler for encouragement and discussion, although they bear no responsibility for the present version. Research leading to this paper was partly supported by the Social Sciences and Humanities Research Council of Canada, Standard Research Grant #410-2009-2524: we thank the Council for its support.

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Acknowledgements

Douglas Husak comments in his own essay on DPAs that “assessing DPAs poses a challenge that legal philosophers have barely begun to undertake” (Husak 2014, 361). We are grateful to Prof. Husak for drawing our attention even before then to this lacuna, and hope the present paper is a worthwhile beginning. The analysis presented here, however, is wholly our own. A much earlier version of this paper was presented at a Workshop on the Presumption of Innocence, Free University of Amsterdam, December 2013. We thank Antony Duff, Anne Ruth Mackor and Johannes Keiler for encouragement and discussion, although they bear no responsibility for the present version. Research leading to this paper was partly supported by the Social Sciences and Humanities Research Council of Canada, Standard Research Grant #410-2009-2524: we thank the Council for their support.

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  1. Department of Philosophy, University of British Columbia Okanagan, Kelowna, Canada

    Roger A. Shiner

  2. Department of Philosophy, Okanagan College, 1000 KLO Road, Kelowna, BC, V1Y 4X8, Canada

    Roger A. Shiner

  3. School of Law, University of Melbourne, Melbourne, Australia

    Henry Ho

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Correspondence to Roger A. Shiner.

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Shiner, R.A., Ho, H. Deferred Prosecution Agreements and the Presumption of Innocence. Criminal Law, Philosophy 12, 707–723 (2018). https://doi.org/10.1007/s11572-018-9454-0

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