There's a lot of DPAs out there, and it looks like two swallow spring of judicial supervision of them is about to come to an end, thanks to icy appellate courts.  I think it's bad!  And I wrote something about it over at the Times:

something must change in the world of deferred prosecution agreements. They are increasing in number every year. The threat of punishment for noncompliance with a deferred prosecution agreement is a court order. Professors who have looked at the way prosecutors supervise deferred prosecution agreements do not like what they see. Prosecutors, moreover, have little experience with the oversight of a bureaucratic effort, even a little one.

It is no way to run an oversight process. If the government is going to set up compliance programs with the specter of a court order looming at the end, then it should not expect that courts will stay out of the process from the beginning. That is how regulation works in this country, and if prosecutors are going to fashion themselves as regulators, then they are going to have to take the bitter with the sweet.

Do go check it out.

Administrative Law, White Collar Crime | Bookmark