Non-prosecution Agreements Research Articles

O ACORDO DE NÃO PERSECUÇÃO PENAL E SUA APLICABILIDADE NOS CRIMES AMBIENTAIS

This scientific article seeks to analyze the applicability of the Non-Prosecution Agreement (ANPP), which is a decriminalizing institute brought in by the Anti-Crime Package created in Law 13.964, of December 24, 2019. In this article, we have chosen to address the Non-Prosecution Agreement applicable to environmental crimes. The problem will be to analyze the feasibility of applying the Non-Prosecution Agreement in environmental crimes, considering their nature of damage to the environment. The general objective is to understand the challenges of applying the NPA in environmental crimes. The specific objectives are to investigate whether the agreement is applicable to environmental crimes that do not involve violence or serious threats, as well as to evaluate the combination between the economic condition of the offenders and the terms that are generally proposed, identifying possible disparities and impacts. And finally, to evaluate the combination between the economic condition of the offenders and the terms that are generally proposed in ANPPs in environmental crime cases, identifying possible disparities and impacts on the fairness of the accountability process. The inductive method was used, based on theoretical foundations found in bibliographic research, such as public documents, books, scientific articles, case law and internet data.

Variações na aplicação dos acordos de não persecução penal em Maracanaú/CE: um estudo de caso sobre a dosimetria da pena de prestação pecuniária

This work examines the application of the Criminal Non-Prosecution Agreements (ANPPs) carried out in the Municipality of Maracanaú between 01/01/2022 and 12/31/2022, aiming to identify whether there is equality in the application of the monetary benefit sanction. The impact of Law no. 13,964/19, which introduced the Criminal Non-Persecution Agreement (ANPP) and allowed monetary benefits in criminal agreements, allowing discretion in negotiations, but without establishing fixed criteria for its application. The empirical research was conducted in 2022 at the criminal prosecutor's offices in Maracanaú-CE and involved data collection and subsequent comparison and analysis. The results indicate discrepancies in the use of ANPPs between ministerial units and, in certain cases, significant differences in the values ​​stipulated in the pecuniary benefit, raising questions about compliance with the principle of equality. A concrete dysfunctionality of negotiated criminal justice and, more broadly, of the Brazilian criminal prosecution system was revealed.

Reparation as a condition of the non-prosecution agreement in crimes against the tax system

This article problematizes the reparation of damage as a condition of the non-prosecution agreement (NPA) in crimes against Brazilian tax system. The applicability of this condition is addressed in crimes where the full reparation of the damage (payment of the tax) already has the effect of extinguishing criminal liability. This research is intended to answer the following problems: (i) Is the NPA applicable in tax crimes? (ii) Must the reparation of the damage, as a condition of the NPA, cover the full value of the tax, including interests and fines? (iii) Is the reparation of the damage always necessary to sign a NPA? The expectation of advantage to the accused, provided by the agreement as a negotiated justice instrument, is considered as a condition of its own meaning and effectiveness. On the other hand, the expectation of protection of the legal interest is considered in light of the sufficiency of the agreement as an instrument of prevention and repression of tax crimes. Possible ways of reconciling these expectations are delimited as hypotheses, through solutions such as a restricted understanding of the reparation of damage and the viability of partial reparation. The research is qualitative, exploratory, and propositional, based on the analysis of specialized legislation and literature.

Under the influence: the Kusile tender and state capture permeating the national prosecuting authority

Purpose The purpose of this paper is to give light to the present order of state capture and corruption within South Africa at present. South Africans often consider the National Prosecuting Authority to be an independent body which is free of the corruption of the rest of the Government; however, the situation that surrounds the Kusile Tender will suggest otherwise. Design/methodology/approach This paper’s approach is purely qualitative using journal articles, textbooks, reports, periodicals, speeches and legislation as its basis. It is through a consolidation of this literature that this paper was formed. Findings This paper determines that even the National Prosecuting Authority of South Africa is not free from the scourge that is corruption through the depiction of the Kusile Tender. Within this tender, the National Prosecuting Authority entered into a non-prosecution agreement with a defendant, Asea Brown Boveri, which cannot be accounted for in the Criminal Procedure Act 51 of 1977. Originality/value The concept of state capture and corruption are not new to any jurisdiction, let alone South Africa. This paper, however, intends to give insight into how even the departments which the public believe to be (and are constitutionally mandated to be) independent can fall prey to corrupt dealings.

Criminal Non-Prosecution Agreement as a political-criminal instrument: possibilities, binding jurisprudential reconfigurations, and the new directions of the Brazilian criminal procedure

The paper, based on a bibliographic and hermeneutic review with a deductive approach, presents the configuration of the Non-Prosecution Agreement (ANPP) as a political-criminal instrument, the foundations of which need to be understood. Against the backdrop of the discussion of these foundations as binding by the Supreme Federal Court (STF), the first part advocates for the maximum scope and retroactivity of the ANPP as a mixed norm, seeking to describe the state of the discussion and the bases of the debate in jurisprudence. In a second moment, it proposes that the concept of penal insignificance, present in the legal discipline of the ANPP, should gain prominence as a critical function linked to the political-criminal analysis of jurisdictional action. In the third section, the text asserts the urgency of a justification for filtering the necessity or not of penal incidence and its convenience, based on perspectives on what may constitute just cause for criminal action. In the concluding remarks, the paper revisits the potential role of ANPP as an instrument that could inaugurate a democratic renewal in the legal system, given its ability to pave the way for a strategic discussion regarding the necessity or not of state-punitive action.

Criminal Non-Prosecution Agreement as a political-criminal instrument: possibilities, binding jurisprudential reconfigurations, and the new directions of the Brazilian criminal procedure

The paper, based on a bibliographic and hermeneutic review with a deductive approach, presents the configuration of the Non-Prosecution Agreement (ANPP) as a political-criminal instrument, the foundations of which need to be understood. Against the backdrop of the discussion of these foundations as binding by the Supreme Federal Court (STF), the first part advocates for the maximum scope and retroactivity of the ANPP as a mixed norm, seeking to describe the state of the discussion and the bases of the debate in jurisprudence. In a second moment, it proposes that the concept of penal insignificance, present in the legal discipline of the ANPP, should gain prominence as a critical function linked to the political-criminal analysis of jurisdictional action. In the third section, the text asserts the urgency of a justification for filtering the necessity or not of penal incidence and its convenience, based on perspectives on what may constitute just cause for criminal action. In the concluding remarks, the paper revisits the potential role of ANPP as an instrument that could inaugurate a democratic renewal in the legal system, given its ability to pave the way for a strategic discussion regarding the necessity or not of state-punitive action.

Acordo de Não Persecução Penal (ANPP): aspectos gerais e observações sobre a confissão extrajudicial

With the introduction of the Criminal Non-Prosecution Agreement in the criminal procedural law by L. 13.964, of 2019, the criminal consensual justice system now has yet another important institute. Although initially provided for in CNMP Resolution n. 181, of 2017, its legal provision permanently removed the criticisms directed at its implementation through an infralegal act. In addition to exploring the legal nature of the ANPP, the possibility of its application in various crimes, its relationship with the constitutional right to silence, as well as the need for the Investigated to know the evidence produced against him to better evaluate the proposed agreement, the study analyzes the extrajudicial confession as an essential requirement for its celebration and approval by the Judiciary, including the exposition of the understandings of the Federal Supreme Court and the Superior Court of Justice that are formed on the subject. In the end, in view of the researched precedents, we seek to answer the following questions: do the STF and the STJ require certain requirements to validate the extrajudicial confession? Do you understand that judicial appreciation is relevant?

Acordo de Não Persecução Penal (ANPP): aspectos gerais e observações sobre a confissão extrajudicial

With the introduction of the Criminal Non-Prosecution Agreement in the criminal procedural law by L. 13.964, of 2019, the criminal consensual justice system now has yet another important institute. Although initially provided for in CNMP Resolution n. 181, of 2017, its legal provision permanently removed the criticisms directed at its implementation through an infralegal act. In addition to exploring the legal nature of the ANPP, the possibility of its application in various crimes, its relationship with the constitutional right to silence, as well as the need for the Investigated to know the evidence produced against him to better evaluate the proposed agreement, the study analyzes the extrajudicial confession as an essential requirement for its celebration and approval by the Judiciary, including the exposition of the understandings of the Federal Supreme Court and the Superior Court of Justice that are formed on the subject. In the end, in view of the researched precedents, we seek to answer the following questions: do the STF and the STJ require certain requirements to validate the extrajudicial confession? Do you understand that judicial appreciation is relevant?

Effects of bounded rationality on prosecutorial decision making: Analysis of penalties on corporate fraud violators

Our study analyzes data from the Corporate Prosecution Registry of the University of Virginia School of Law and Duke University School of Law. This registry provides information on federal organizational prosecutions in the United States, including detailed information about every federal organizational prosecution since 2001, as well as deferred and non-prosecution agreements with organizations since 1990. We examine a subset of corporate violators, namely those who allegedly committed five types of fraud, namely, accounting fraud, mail fraud and wire fraud prosecutions, health care fraud, securities fraud, and tax fraud. We utilize the framework of bounded rationality of decision making to hypothesize that prosecutors are influenced by internal and external factors that affect the total penalties ultimately levied on corporate violators. Specifically, our results indicate that corporate penalties are significantly more likely to be lower when U.S. Department of Justice sections are involved in the prosecution and the company's country of incorporation has a Free Trade Agreement with the U.S. but significantly more likely to be higher when the violator is a U.S. public company.

ACORDO DE NÃO PERSECUÇÃO PENAL – CARACTERÍSTICAS E VIABILIDADE CONSTITUCIONAL

The present article aims to demonstrate the legal and constitutional viability of the Non prosecution Agreement (NPA). Thus, in order to achieve the proposed objective, it will be traced, at first, the historical chronology that led to the prediction in the legislative scope of the ANPP, an institute of negotiated criminal justice that, based on criteria of regulated discretion, seeks to confer greater effectiveness to criminal prosecution in a broad sense, and all this is related to the characteristics of this relevant legal institute. Thus, in the final considerations, it is concluded that the ANPP, through the updating of its dogmas, is able to make the criminal prosecution faster and more effective, reaffirming the democratic-persecutorial model par excellence.

The Deterrent Effect of Federal Corporate Prosecution Agreements: An Exploratory Analysis

In this paper, we explore the potential deterrent effect of federal pretrial agreements by examining the extent of violations subsequent to an organization signing a pretrial agreement. More specifically, this research examines the subsequent criminal, civil, and regulatory violations of 161 publicly-traded firms that signed federal deferred prosecution agreements and non-prosecution agreements between 2001 and 2020. Our analysis identified 87 recidivist companies with a total of 629 subsequent violations, eight of which were criminal violations. While most companies had only one subsequent violation, one company had 63 noted violations after signing the pretrial agreement. Our exploratory analyses reveal that companies paying larger penalties as part of the pretrial agreement were less likely to have subsequent violations, and, when examining U.S.-based companies only, that larger organizations were more likely to have subsequent violations. These preliminary results are important to understanding both corporate deterrence generally, and the use of pretrial agreements as a corporate deterrent specifically.

The War on Bribes: The FCPA and the Global Battle to End Corruption

In 1972, investigations following the Watergate break-in uncovered a scandal within the scandal: corporations were using slush funds and manipulating financial statements to disguise bribes to foreign officials for business purposes. The U.S. Congress, led by Senators William Proxmire and Frank Church, effectively declared an all-out war on bribes. Their primary weapon: The Foreign Corrupt Practices Act, signed into law at the end of 1977 with the explicit purpose of ending corporate bribery of foreign officials. In the decades that followed, the international community joined the battle, with some 40 countries enacting laws similar to the FCPA by 2019. But while enforcement by the Department of Justice and the SEC climbed dramatically in more recent years, the agencies' extensive - and perhaps excessive - use of Deferred- and Non-Prosecution Agreements (DPAs and NPAs, respectively) has blunted the effectiveness of the law in rooting out corruption. This paper argues that efficacy of the FCPA is ultimately a function of enforcement, and that enforcement must address individual wrongdoers with meaningful penalties for the FCPA to have any prayer of achieving its goal.

Corporate non-prosecution agreements as transnational human problems: transnational law and the study of domestic criminal justice reforms in a globalised world

ABSTRACT Nowadays, cases involving questions of corporate (ir)responsibility are largely resolved through negotiated settlements. A controversial development in this context is the cross-border rise of procedures akin to US non- and deferred prosecution agreements which allow prosecutors to agree with corporations not to prosecute serious economic crimes. The article uses this example to discuss the relevance of transnational law as an analytical framework for studying domestic criminal justice reforms in a globalised world. It revisits one of the central, albeit less noticed, themes of Philip C Jessup’s seminal 1956 Storrs Lectures on Transnational Law – transnational human problems – and identifies its descriptive and evaluative-critical benefits. The article then investigates to what extent these benefits are reflected in today’s two main theories of transnational law in criminal justice, ultimately finding that Transnational Legal Ordering of Criminal Justice provides a more suitable analytical framework than Transnational Criminal Law in this context.

In Re: Courtney Wild

This petition for a writ of certiorari to the U.S. Supreme Court asks the Court to review the issue of whether the Crime Victims’ Rights Act (CVRA) required federal prosecutors confer with victims of Jeffrey Epstein before concluding non-prosecution agreements (NPA) with him. The petition arises from a NPA federal prosecutors in Florida reached with Epstein—blocking not only his prosecution for federal sex crimes but also that of his co-conspirators. The prosecutors never conferred with the victims about the non-prosecution agreement. After years of litigation about the validity of the secret NPA, the case reached the Eleventh Circuit. The Circuit ruled in an en banc decision, 7-4, that the CVRA does not give victims the ability to enforce their rights in court until the Justice Department formally files federal charges. This certiorari petition argues that the important legal issue of whether the nation’s preeminent crime victims’ rights statute permits the government to secretly conclude pre-indictment NPAs with targets of federal investigations warrants immediate review. Because such arrangements are, by definition, secret, other circuits may never be able to speak to the legality of such resolutions. Leaving the issue to percolate means that the Justice Department will be free to dispense with victims’ rights and orchestrate clandestine deals without affording victims any rights under the CVRA. The Supreme Court may well face a now-or-never opportunity to review the important question of whether the CVRA permits such secrecy. In addition, the illegitimacy of the Justice Department’s practice of covertly and deceptively arranging non-prosecution deals is far too serious for the Supreme Court to wait to see what other circuits might say. The Eleventh Circuit’s decision guts victims’ rights under the CVRA. Such a dubious interpretation runs counter to the statute’s plain language, which Congress designed to create a comprehensive bill of rights for crime victims—with enforceable rights.

Crime and the Corporation: Making the Punishment Fit the Corporation

The debate over corporate criminal liability has long involved a fight between proponents who argue that corporate liability is necessary for effective deterrence and opponents who claim that it “punishes the innocent.” This article agrees and disagrees with both sides. Corporate criminal liability could play a critical role in establishing an effective deterrent to organizational misconduct, but today it largely fails. Currently, we have a system that combines Deferred Prosecution Agreements, Non-Prosecution Agreements, and extraordinarily generous sentencing credits for compliance plans that have failed, and the result is a system that is more carrots than sticks. The evidence seems clear that corporate fines seldom affect the company’s stock price (even when they are record penalties), that companies rarely self-report their misconduct (despite legal incentives to do so), and that courts impose penalties that can be easily absorbed as a cost of doing business. This analysis leads many to favor a system that focuses only on corporate executives and dispenses with the corporation as a target of the criminal law. That would be an unmitigated mistake. Although executives are deterrable, corporate executives are much harder to identify and prosecute for a variety of reasons. In this light, the critical role of corporate criminal liability is that it can give the corporation a stronger incentive to self-report, monitor its employees, and turn in those responsible. But this requires that we extend leniency only for objective conduct that generates deterrence. A principal goal of this article is to provide a roadmap for how we can make the punishment fit the corporation. Leniency can be used as a tool, but should not be extended gratuitously. Ultimately, to curb corporate misconduct, society must choose between either vicarious liability for executives (which is contrary to our tradition and should shock civil libertarians) or vicarious liability for shareholders (which they have had for a century and is always bounded by the ceiling of limited liability). Either choice will have its costs, but the latter is clearly preferable to the former.

Mapping geographic patterns in federal corporate agreements

Purpose The purpose of this study is to use crime mapping techniques to examine geographic patterns of signed deferred and non-prosecution agreements across federal districts. The purpose is also to examine the variation in the number of agreements by the district since 1992. Design/methodology/approach This study uses data from the Corporate Prosecution Registry to examine geographic patterns in federal corporate agreements since 1992 (n = 534). Choropleth mapping techniques were used to create national crime maps displaying the geographic locations of signed corporate agreements. Findings The results showed that, overall, prosecutors in the District of Columbia have signed the most federal corporate agreements although there is some variation over time. Research limitations/implications This study is unable to determine the causes of changes in the geographic placement or number of agreements signed. It is also unable to determine the precise geographic locations of crimes, but only the location of the District Court that elected to pursue a federal agreement with the organization. Practical implications The wide discretion prosecutors have in the agreement process has led to an overall lack of transparency concerning prosecutors’ decision-making when signing agreements with organizations. This study helps to make the number and geographic location of agreements more transparent. Originality/value This study uses crime mapping techniques to visually depict the locations of signed agreements allowing for visual comparisons and analyzes for an extended period of time.

Direito (Subjetivo) ao Acordo de Não Persecução Penal e Controle Judicial: Reflexões à Luz da Teoria dos Direitos Fundamentais

A Lei n° 13.964/2019, denominada de “Pacote Anticrime”, regulamentou o instituto despenalizador do “Acordo de Não Persecução Penal”. Com a vigência da legislação relativa ao benefício legal, instaurou-se no cenário jurídico nacional grande controvérsia acerca da natureza jurídica do novo instituto e sobre a possibilidade de controle jurisdicional da recusa do Ministério Público em oferecê-lo. Por essa razão, o presente artigo científico tem por objetivo analisar, a partir de uma pesquisa dedutiva, bibliográfica e legislativa, a natureza jurídica do “Acordo de Não Persecução Penal” e sobre a possibilidade de controle jurisdicional da recusa do Ministério Público em propor ao investigado tal benefício, à luz da teoria dos direitos fundamentais. Para concluir, ao final, que o “Acordo de Não Persecução Penal” é direito subjetivo da pessoa investigada e que o Poder Judiciário pode controlar a legalidade do ato de recusa do benefício pelo Ministério Público, concedendo-o se atendidos os requisitos legais.

Reform of Criminal Law through Restorative Justice in Returning State Losses from Corporation as the Perpetrator of Corruption

The development of an increasingly complex country raises a variety of new problems involving corporation, one of which is a criminal act of corruption involving corporation. Based on Law No. 20 of 2001 concerning Amendments to Law No. 31 of 1999 concerning Eradication of Corruption and Regulation of the Supreme Court of the Republic of Indonesia No. 13 of 2016 concerning Procedures for Handling Criminal Cases by Corporation, criminal liability for corruption involving corporations can already be requested from the management, corporation, and the management and corporation. The concept of law enforcement that continues to develop raises an approach or method of problem solving that focuses on recovery and coaching in the application of sanctions, the approach is known as restorative justice. However, the concept has not been fully applied in Indonesian laws and regulations, especially for corporations. The restorative justice approach has many similarities with the method of resolving criminal acts involving corporations in the United States, the method is known as the Deferred Prosecution Agreement (DPA) and Non-Prosecution Agreements (NPA). DPA or NPA in principle is a solution to the problem of corporate crime to agree to postpone or not prosecute provided unless the corporation meets the conditions and requirments set. In addition, it is stated in writing in the form of agreements called Deferred Prosecution Agreements or Non-Prosecution Agreements.

Optimal non-prosecution agreements and the reputational effects of convictions

Many claim that non-prosecution agreements (NPAs) reduce deterrence by mitigating the reputational sanctions that would otherwise be imposed on corporations through plea-bargains. They suggest, based on this claim, that NPAs ought to be used infrequently. This article presents a signalling model wherein reputational sanctions emerge as a result of noisy signals produced through a firm's prosecution. It is shown that, if, as claimed, NPAs provide third parties with less information regarding a firm's wrongdoings, then firms would be willing to pay an NPA premium to avoid convictions. Thus, the NPA premium can be chosen to induce only those firms which would otherwise be over-deterred to accept NPAs. Therefore, offering NPAs with high premia is superior to the option of not using NPAs. The article also characterizes optimal NPAs, and identifies relationships between deterrence; frequency of NPA use; firms’ characteristics; and NPA terms. It explains how these relationships can be exploited to form and test hypotheses on whether convictions obtained through plea-bargains cause greater reputational harm to firms than NPAs.

New Trend in Corporate Crime Investigation- Deferred Prosecution and Non-Prosecution Agreement in the United States for Corporate Structure Reform and Deterrence -

New Trend in Corporate Crime Investigation- Deferred Prosecution and Non-Prosecution Agreement in the United States for Corporate Structure Reform and Deterrence -