The U.S. Department of Justice 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 at the law school, run a web site that features hundreds of deferred prosecution agreements and non-prosecution agreements. Garrett in 2007 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 Justice Department 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.
That's precisely why the UVA challengers want to see the ABC deal. "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."
The Justice Department under the leadership of Attorney General Eric Holder Jr. has come under fire in recent years over whether prosecutors have been aggressive enough in combatting corporate crime. DOJ over the past couple of years heralded blockbuster deals with banks that netted billions of dollars in criminal fines and penalties but did not produce a criminal conviction.
Mythili Raman, who leads the department's Criminal Division, said in May on Capitol Hill that "career prosecutors and our investigative agents are absolutely tenacious about getting to the bottom of criminal wrongdoing at any entity, including large financial institutions. And I think our experience over the last several years shows that we use all the tools that are at our disposal."
Raman, the acting assistant attorney general for the division, said deferred prosecution agreements "have real beneficial impacts for law enforcement."
In such deals, companies are required to cooperate with the Justice Department, Raman said, and "it is often the case that the information they provide us during the course of a deferred prosecution agreement can lead to individual prosecutions."
Raman also said the department's insistence that a company take remedial action during the course of a deferred prosecution agreement "can have cascading benefits to other companies in the same industry."
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.
The case was assigned to U.S. District Judge Ketanji Brown Jackson.