Individual Accountability for Corporate Crimes after the Yates Memo: Deferred Prosecution Agreements & Criminal Justice Reform

Since the financial crisis of 2008, the Department of Justice has increasingly used deferred prosecution agreements to resolve corporate crimes. In these agreements, the government agrees not to prosecute a corporation for its misconduct in exchange for fines, agreements to increased monitoring for a set time frame, or both. The vast majority of the banks and institutions responsible for the 2008 financial crisis have received deferred prosecution agreements, with the leaders of these institutions largely escaping prosecution altogether. Over the past decade, only a small fraction of corporations that have received deferred prosecution agreements have also had responsible officers or employees prosecuted.

In response to the criticism regarding lack of accountability for individual corporate wrongdoers, Deputy Attorney General Sally Quillan Yates of the Department of Justice issued a memo on September 9, 2015, outlining new guidelines for individual accountability. These guidelines have since been incorporated into the United States Attorney's Manual. Even so, the Department of Justice has entered into several deferred prosecution agreements since the issuance of the Yates Memo where no individual wrongdoers were charged, raising concerns about adherence to the new policy.

Several months before the release of the Memo, Judge Richard Leon of the District Court for the District of Columbia refused to approve a deferred prosecution agreement because he found the agreement to be overly lenient for the corporate crime at issue. The D.C. Court of Appeals subsequently overturned District Judge Leon 's decision, holding that separation of powers mandates that there cannot be judicial review of deferred prosecution agreements.

This Note will argue that the new Yates Memo policy on individual accountability should be strictly adhered to when entering into deferred prosecution agreements. Next, this Note asserts that deferred prosecution agreements should be subject to judicial review to ensure compliance with the new Yates Memo policies. Lastly, this Note examines the inconsistency between the mens rea requirement of the Sentencing Reform and Corrections Act of 2015 and the Yates Memo, arguing instead for an extension of the Park doctrine for the most egregious corporate crimes.

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