Prosecuting beyond the rule of law: Corporate mandates imposed through deferred prosecution agreements

Abstract

U.S. corporate criminal enforcement policy allows prosecutors to enter into deferred and nonprosecution agreements (D/NPAs) that impose corporate reform mandates on firms with detected misconduct. This article concludes that the process governing prosecutors' use of D/NPA mandates is inconsistent with the rule of law. The rule of law requires that individual executive branch actors not be given sufficient authority to restrict the rights of others to achieve personal aims, including idiosyncratic conceptions of the public interest. To satisfy the rule of law, modern governments granting discretion to executive branch actors constrain this authority by limiting the scope of authority granted and requiring external oversight of decisions. Formal enforcement through pleas and formal agency rule-making employ both mechanisms to constrain discretionary authority. By contrast, prosecutors who use D/NPAs to create and impose new duties face few limitations on the scope of their ex ante authority to intervene. They also face little oversight through judicial review. This broad grant of discretion to individual prosecutors' offices is inconsistent with the rule of law.