Resumen de Judicial review of deferred prosecution agreements: a comparative study

Frederick T. Davis

• A Deferred Prosecution Agreement is a negotiated criminal procedure that allows individuals—and increasingly, corporations—to avoid a criminal conviction by reaching an agreement with the prosecutor to acknowledge responsibility for their acts, to make appropriate payment in lieu of fines, to modify their behavior, and often to cooperate with ongoing investigations, in return for which criminal charges are either dropped or are not brought at all. It has become a mainstay of efforts by the United States Department of Justice to combat corporate crime. The procedure has now been imitated in a few other countries and is receiving serious legislative attention in several more. While the several versions share many common features, they differ in one key respect: whether the courts have any role in reviewing an agreement reached by a prosecutor and a corporate defendant, and if so, the extent of that review. This Article will review corporate Deferred Prosecution Agreement procedures in the countries that have adopted them as well as legislative schemes now being considered, and focuses on the approaches to judicial review adopted by each. The differences explored here may have a real impact on transnational criminal investigations, and this comparative study provides a useful gauge of the respective countries' traditions and principles of separation of the powers.