Balancing Justice And Corporate Immunity: DPAs And The ‘Too Big To Jail’ Dilemma Across Jurisdictions
Jeevitha R, B.A. LL.B. (Hons.), Damodaram Sanjivayya National Law University, Visakhapatnam
ABSTRACT
Deferred Prosecution Agreements (“DPAs)” have emerged as a central tool for resolving corporate criminal liability, allowing prosecutors to defer indictment in exchange for a company's compliance with negotiated conditions such as fines, remedial reforms, and cooperation with investigations. This essay undertakes a comparative examination of DPA frameworks across the United States, the United Kingdom, and Canada, tracing their divergent approaches to judicial oversight, transparency, and discretion of the prosecution. While the U.S. model grants prosecutors near- unchecked authority with minimal judicial review, the U.K. and Canadian regimes embed courts more directly into the approval process, requiring findings that an agreement serves the interests of justice and is fair, reasonable, and proportionate. The essay then turns to the central legitimacy critique of DPAs , the "Too Big to Jail" problem while arguing that their disproportionate use for large corporations undermines equality before the law, weakens deterrence, and sits uneasily with retributive theories of punishment. Having established that DPAs, left unchecked, threaten core rule-of-law values, the essay evaluates the prospects for introducing a DPA framework in India, where no equivalent mechanism currently exists beyond limited compounding provisions under company, tax, and securities law.
Keywords: Deferred Prosecution Agreements, indictment, prosecution, judicial review, justice, Too big to jail.
