MassPrivateI The U.S. Department of Justice (DOJ) is being sued over its refusal to publicly disclose a $2 million non-prosecution agreement prosecutors reached with a Houston-based tree services company that employed undocumented workers.
The U.S. Attorney’s Office of the Southern District of Texas issued a news release in May 2012 revealing the deal between prosecutors and ABC Professional Tree Services Inc. The company agreed to forfeit $2 million in revenue that flowed from the use of undocumented workers between 2006 and 2011, DOJ officials said.
But prosecutors will not disclose a copy of the agreement between the government and ABC, according to a Freedom of Information Act lawsuit filed Nov. 26 in U.S. District Court for the District of Columbia. The Thomas Jefferson Center for the Protection of Free Expression represents the challenger, Jonathan Ashley, a business reference librarian at the University of Virginia School of Law.
Ashley and Brandon Garrett, a criminal justice professor published an article in the Virginia Law Review that explored these pre-trial deals—where the government often collects a fine, and demands remedial action, in exchange for not pursuing criminal charges.
The DOJ in recent years has increasingly turned to the use of non-prosecution and deferred prosecution agreements in recent years. A Gibson, Dunn & Crutcher report in July said NPAs and DPAs “have risen in prominence, frequency and scope.” The report said “such agreements are now a mainstay” in the government fight against corporate wrongdoing.
“The public has a right of access to such documents as the debate on prosecution agreements escalates,” Ashley’s complaint said.
“The courts are joining in on the debate as well,” the lawsuit said. “Courts have been skeptical of both NPAs and DPAs, and there is increasing concern that NPAs provide a run-around the judicial process since courts have little say in whether a prosecutor can bring charges or not.”
Justice Department officials cited a number of exemptions to block the release of the non-prosecution agreement with ABC. The government pointed to exemptions that address trade secrets and privacy of third parties. Here’s the news release the Justice Department issued in the case.
Disclosure of ABC’s non-prosecution agreement, the challengers in the new lawsuit in Washington said, is in the government’s best interest.
“Public availability will dispel any myths or false allegations regarding the content of the prosecution agreements,” the lawsuit said.
http://legaltimes.typepad.com/blt/2013/12/justice-dept-sued-over-access-to-non-prosecution-agreement-the-us-department-of-justice-is-being-sued-over-its-refusa.html
List of federal organizational prosecution agreements:
http://lib.law.virginia.edu/Garrett/prosecution_agreements/home.suphp
http://massprivatei.blogspot.com/2013/12/non-prosecution-agreements-mockery-of.html