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.

* This Article was originally conceived by Katie Salvaggio, then a student at Columbia Law School and now an associate at Gibson, Dunn & Crutcher LLP in New York, who accomplished the early research and writing and to whom the author is greatly indebted. Students too numerous to mention have contributed to research on various parts of it, and while a list would risk inadvertent under-inclusion I am greatly indebted to all of them. A number of lawyers, including several from the countries whose laws are summarized, have kindly reviewed drafts; while I am solely responsible for the content of the article, I greatly appreciate their comments. They include Daniel Aun, Alex Carlile, Lincoln Caylor, Brandon Garrett, John Gleeson, Antoine d'Omano, Jed S. Rakoff, Jonathan Polansky, and Robert Wyld, among others.

** Member of the bars of New York and Paris. B.A. Harvard (1967), J.D. Columbia Law School (1972). Served as law clerk to Henry J. Friendly, Chief Judge, United States Court of Appeals for the Second Circuit, and to Potter Stewart, Supreme Court of the United States. An elected Fellow of the American College of Trial Lawyers and of the International Academy of Financial Crime Litigators, and a Life Member of the American Law Institute. Named a chevalier of the National Order of Merit of France. Currently a Lecturer in Law at Columbia Law School.