Don't Tell Me There Isn't A Double Standard

Deferred White-Collar Prosecutions: New Terrain, Few Signposts

Okay, the next time anyone gets hauled before a judge for any type of prosecution, let us all ask for deferred prosecution and see how we fare in the process? How is it that congress and President Bush targetted ordinary citizens with a harsher bankruptcy law for individuals and families experiencing financial hardship, but left open the door for big business bankruptcy to occur as usual, and now the DOJ under the direction of the US Attorney opens the door to "deferred prosecution" to protect big business from being forced to pay so much in penalties that the business would close?

What ever happened to the rule of capitalism? The rule of law? Equal protection and equal treatment under the law? I know I won't get the same consideration if I am hauled off to court. Will you? I think NOT!

The fraud investigations of Bristol-Myers Squibb and the University of Medicine and Dentistry of New Jersey posed a dilemma for U.S. Attorney Christopher Christie: how to enforce the law without putting them out of business.

In both cases, Christie chose deferred prosecution, placing charges on hold while a defendant meets certain demands. Typical provisions include cooperation, waiver of attorney-client privilege and appointment of monitors. If the defendant complies, charges are dropped.

The practice has been used in drug cases since the 1970s, but more recently it has been expanded to white-collar crimes, mostly those involving health care, financial and accounting companies. Between 2002 and 2005, prosecutors across the country used it in 23 such cases, up from 11 between 1992 and 2001, according to Corporate Crime Reporter, of Washington, D.C.

Because it's relatively new terrain in white-collar cases, there are few signposts, and some legal authorities say prosecutors could use some direction in how to devise monitoring arrangements that are strict but not unduly intrusive.

"It's a brave new world," says Wayne State University Law professor Peter Henning. "There aren't any guidelines on ... how much government involvement is appropriate. Because companies need to avoid indictment, they're desperate."

The deferred prosecution agreement "has to remain narrow and address the underlying business misconduct and not try to reform an entire business organization," says Henning. "These agreements can't change a corporation's culture. ... The U.S. Attorney can't run the business for them."

Stetson University Law professor Ellen Podgor, who co-authors a white-collar crime blog with Henning, says such agreements should be subject to judicial approval. "We have a judiciary for a reason," she says.