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Abstract

Over the past eight years, the federal government has entered into more than two hundred nonprosecution agreements with corporations in white-collar crime cases. In such agreements the government promises to cease its investigation and forego any potential charges so long as the corporation agrees to certain terms. And there’s the rub: given the economic realities of just being charged with a white-collar crime these days, corporations are more than willing to accept nonprosecution agreements. Prosecutors are cognizant of this willingness, as well as of the fact that these agreements are practically insulated from judicial review. This results in the prosecution possessing a seemingly unfettered discretion in choosing the terms of a nonprosecution agreement. The breadth of this discretion is nowhere more apparent than in environmental criminal cases. Nonprosecution agreements in such cases have begun to require corporations to donate monetarily to a nonprofit of the government’s choosing. Indeed, in 2012 British Petroleum agreed to pay more than $2.394 billion to nonprofit agencies. This Article critiques this practice by highlighting the inconsistencies between nonprosecution agreements and plea bargaining—the latter are subject to judicial review while the former are not—and unearthing the differences between these payments and any common-law understanding of restitutionary principles. The Article then suggests that the practical result of these nonprosecution agreements is that prosecutors are diverting money that ought to be paid to the Treasury to government-chosen nonprofit agencies, a power constitutionally granted to legislative actors. Finally, the Article concludes by suggesting a modest reform: judicial review by a United States magistrate judge, so as not to run into any Article III concerns, to ensure that prosecutors do not take advantage of the nonprosecution-agreement process.

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