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Washington, D.C. --- U.S. Rep. Frank Pallone, Jr. (D-NJ) today introduced legislation in the U.S. House of Representatives that would require the U.S. Department of Justice to meet a set of guidelines before entering into a deferred prosecution agreement, and would require critical independent oversight that is currently nonexistent.
Deferred prosecution agreements are increasingly being used by the Bush administration's Justice Department and its U.S. Attorneys to address corporate wrongdoing and corruption. These agreements replace the normal route of federal prosecution and require a potential defendant to meet certain conditions over a set period of time in order to prevent criminal charges.
Currently, no guidelines exist as to when such an agreement can be reached, leaving all discretion to the U.S. Attorneys and the Justice Department. Equally disturbing is the fact that these agreements are ordinarily not transparent and are not currently required to undergo independent review or receive judicial sanction.
The New Jersey congressman's legislation would require the Justice Department to provide clear guidelines for U.S. Attorneys as to when deferred prosecution agreements should be entered into.
"In the absence of any guidance from the Justice Department on how to use, craft, and implement deferred prosecution agreements, legislation is desperately needed that lays out a specific framework as to when these agreements can be used," Pallone said. "My legislation establishes such guidelines to constrain the unfettered discretion that U.S. Attorneys now enjoy so the American people can be confident that their use is not being abused."
Pallone's legislation would also require that any deferred prosecution agreement be submitted to the appropriate United States District Court for review by either a federal district court judge or a magistrate. The reviewer would be charged with examining the terms of the agreement to ensure that it comports with the public interest and all applicable laws and guidelines before it receives final approval.
In order to eliminate any appearance of favoritism, Pallone's legislation also directs the federal judge or magistrate to then choose the federal monitor from a pool of pre-qualified firms with experience in complex criminal and civil litigation.
"This legislation removes the appearance of any favoritism, political interference or backroom gamesmanship by providing independent third party oversight through the federal judiciary for deferred prosecution agreements and the choosing of federal monitors," Pallone continued.
Under Pallone's legislation, the U.S. Attorney's Manual would direct that the following factors must be considered in determining whether to enter into a deferred prosecution agreement:
· potential harm to innocent employees, shareholders and other stakeholders of corporation in question;
· degree of cooperation by corporation with investigators including their willingness to provide documents and make available for questioning employees, officers and directors of corporation;
· remedial action taken by corporation in response to wrongdoing such as internal investigation, dismissal of employees, acknowledgement of wrongdoing, payment of restitution, and other structural, management, and policy changes;
· availability of criminal charges against specific employees who may have engaged in illegal acts relative to the corporate wrongdoing;
· availability of sufficient alternative punishments or other remedial action.
The New Jersey congressman's legislation comes two months after he initially voiced concern over news reports that U.S. Attorney Chris Christie handpicked former Attorney General John Ashcroft as a federal monitor in a medical impact case where Ashcroft stood to collect over $52 million. In a November 21st letter to Christie, Pallone called for more transparency and safeguards against the abuse of deferred prosecution agreements.
Pallone also wrote Attorney General Michael B. Mukasey requesting to know what, if any, guidelines are in place at the Justice Department as to how and under what circumstances U.S. Attorney's should enter into deferred prosecution agreements, as well as what guidelines control their choosing of monitors. While Pallone has yet to receive a response to that December 3rd letter, he has learned no such guidelines are currently in place.
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