Is Lance Armstrong Angling for a Deferred Prosecution Agreement?
By Mary Jacoby | January 6, 2013 8:28 pm

Is Lance Armstrong angling for a deferred prosecution agreement?

The disgraced cycling star sent up a strange apparent trial balloon in the New York Times this past weekend suggesting so. Unnamed associates described him as being willing to confess his doping violations in exchange for assurances from the Justice Department that he won’t be prosecuted.

He also wants the DOJ to refrain from joining a civil False Claims Act lawsuit filed by former teammate Floyd Landis, who has accused him of defrauding his Tour de France sponsor the U.S. Postal Service by violating an anti-doping clause in his contract.

As we’ve noted here before, the creeping trend of granting deferred prosecution agreements to individuals as opposed to corporations carries implications for justice that some see as slippery slope.

While we see benefits in DPAs for corporations, we don’t see them for individuals. The Justice Department should be required either to prove a crime at trial (or win an outright guilty plea), or drop an investigation altogether.

The rationale behind a DPA for a company is that the misbehaving company gets punished, usually through a steep fine and agreeing to sometimes onerous new compliance conditions, without the “collateral consequence” of potentially getting put out of business through an indictment. If the company does all that’s required of it during some period of time – usually three years – the government will later drop all charges.

Critics counter that DPAs allow corporations to get off with a mere fine – the “cost of doing business” – and that they don’t do enough to deter bad behavior.

The collapse of Big Five accounting firm Arthur Andersen in the early 2000s (and loss of some 20,000 jobs) after it was accused of criminal obstruction of justice in the Enron probe was the impetus for these flexible arrangements. For many companies, being under indictment causes clients to flee, and can lead to the loss of crucial government contracts.

As Main Justice reported in August, some legal experts are uneasy with extending DPAs to individuals. An individual who is convicted suffers personally, as does his family. But it’s not the same as a company that might go under, leading to the loss of livelihood for innocent employees.

DPAs allow the government to declare victory without having to mount a trial – and risk a high-profile loss before a judge and jury. But they are also kind of a lazy way out, because it’s only when a judge and jury are involved that the merits of a case are weighed completely.

Interestingly, the last known individual to get a DPA was Landis, the former Armstrong teammate who is now suing him on behalf of the government. If Landis wins, he stands to collect up to 30 percent of any money repaid to the allegedly defrauded U.S. government. That bounty would help Landis pay the $478,000 in restitution to donors to a charity he ran that he agreed to do in his own DPA.

The Los Angeles U.S. Attorney’s office abruptly dropped its criminal investigation of Armstrong in February, despite reportedly collecting eye-witness accounts of the cycling star’s doping. It’s never been explained exactly why the U.S. Attorney’s office backed off, through Armstrong’s attorneys had accused prosecutors of illegally leaking grand jury information to influence the prosecution.

If the fear of blow-backs from alleged leaks was the reason for dropping the prosecution, then reaching a deferred prosecution agreement would allow the U.S. government to achieve a victory of sorts that it couldn’t do after it’s own alleged misconduct.

That’s why the justice system shouldn’t start routinely taking these kinds of shortcuts for individuals. There’s a lot to be said for winning a solid victory playing by the rules – it ensures trust in the system. Alas, of course, the price to pay for that trust is that sometimes guilty people get away.

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