The approach taken to DPAs by Judges Gleeson and Boyle should, at a minimum, lead the government and defense counsel to be prepared to justify their agreement if questioned by a court. Further, the scrutiny of DPAs could encourage the government to enter non-prosecution agreements (NPAs) in lieu of DPAs, for, as Judge Gleeson observed, judicial supervision does not apply to non-prosecution agreements; the government has virtually unfettered discretion to choose not to charge at all. What we can say, for sure, is that the government and a corporate defendant can no longer safely take a lack of judicial scrutiny for granted.
‘Enforcement 40’ for 2020
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