Today, U.S. Reps. Bill Pascrell, Jr. (D-NJ), Frank Pallone (D-NJ) and Steve Cohen (D-TN) announced the introduction of comprehensive legislation designed to regulate the process by which the Justice Department allows U.S. Attorneys to engage in pre-trial agreements with corporate offenders and award federal monitoring contracts.

"Congress must exercise its oversight to ensure that our laws are enforced and criminal actors face punishment. We need to look no further than the lack of individuals held accountable for our nation's financial meltdown due to deferred prosecutions for proof that reform is desperately needed," said Rep. Pascrell. "For too long, the public has been shielded from the increased use of deferred and non-prosecution agreements and the potential abuse associated with some of these sweetheart deals. In the interest of justice, this legislation completely reforms the selection of federal monitors by creating an open, competitive process."

"We must improve upon the inconsistency and lack of accountability with the deferred prosecution process,” said Rep. Pallone.  “The system needs to be reformed ensure fairness, equity and justice.  This reform will add much needed oversight and accountability take a step to repair what has become a broken and abused system.”

"The prosecution of corporate crime should not be accomplished in backroom deals, allowing those who have broken the law to avoid public disclosure," said Rep. Cohen. "Such special treatment, not available to all citizens, is ripe for abuse. Our judicial system is founded on the idea that justice is blind, showing no favoritism and giving no special consideration for position or power. Although we have often fallen short, we must always strive to achieve that lofty goal. While deferred prosecution may be an effective tool for prosecutors if it is used judiciously, we must be diligent in ensuring that its use is appropriate and fair and that there is transparency in the process."

The Accountability in Deferred Prosecution Act of 2014, H.R. 4540, would require the Attorney General to: (1) issue public written guidelines for deferred prosecution agreements and non-prosecution agreements; (2) establish rules for the selection of independent monitors for deferred prosecution agreements; and (3) place the text of deferred prosecution agreements on the public website of the Department of Justice (DOJ). The bill was first introduced in the 110th Congress, and reintroduced in the 111th Congress.

The legislation would also require a deferred prosecution agreement to be filed in an appropriate U.S. district court in order to provide judicial oversight. The bill would require the court to approve an agreement only if it is consistent with the guidelines for such agreements and is in the interests of justice.

In 2007, then-U.S. Attorney Chris Christie negotiated DPAs with five orthopedic devices makers found to have paid kickbacks to doctors who used their products. Among the independent monitors chosen by Mr. Christie’s office was former state attorney general David Samson, whom Mr. Christie later appointed to the Port Authority. Mr. Christie also selected as a monitor John Ashcroft, who had been Mr. Christie’s boss as former Attorney General. The fees for Mr. Ashcroft’s firm under the agreement amounted to an estimated $28 to $52 million for 18 months of work.

In a separate agreement, Mr. Christie’s office required Bristol-Myers Squibb to donate $5 million as part of a securities fraud case in order to establish a new position at Seton Hall Law School, Mr. Christie’s alma mater. Mr. Christie was ordered to testify about these agreements at a Judiciary Subcommittee hearing in 2009.

In the meantime, the use of deferred prosecution agreements has continued to expand. Most recently, DPAs have kept individuals and corporations involved in the financial collapse of 2008 from being held accountable. For example, prosecutors have reportedly negotiated a $2 billion DPA with JPMorgan Chase for its role in Bernie Madoff’s Ponzi scheme. HSBC also avoided prosecution through a DPA in 2012 even though the bank was involved in money laundering almost a trillion dollars, much of it relating to drug trafficking.

In about two-thirds of the cases involving deferred or non-prosecution agreements and public corporations from 2001-2012, the company was punished but no employees were charged.

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