Sentencing white collar offenders is difficult in that the economic crimes committed clearly injured individuals, but the offenders do not present a physical threat to society. This Article questions the necessity of giving Draconian sentences, in some cases in excess of twenty-five years, to non-violent first offenders who commit white collar crimes. The attempts by the U.S. Sentencing Commission to achieve a neutral sentencing methodology, one that is class-blind, fails to respect the real differences presented by these offenders. As the term white-collar crime has sociological roots, it is advocated here that sociology needs to be a component in the sentencing of white collar offenders.

In the aftermath of corporate scandals and the establishment of the President's Corporate Fraud Task Force, the Department of Justice has moved with a new emphasis to curb corporate criminality. Congress has also imposed new legislation with stricter compliance and more stringent oversight to curtail corporate criminality. Corporations for the most part have met these new demands and instituted effective compliance programs to prevent and detect criminal conduct. Yet despite these efforts, corporations with the best of motives, with the best of efforts, and with the utmost in due diligence, can still find themselves the subject of a criminal prosecution. This Essay advocates that this new landscape should allow corporations to argue a good faith affirmative defense.

This article examines deferred and non-prosecution agreements entered into between corporations and the Department of Justice (DOJ) through the lens of contract policing theory. It adds a new dimension to the contractual law now applicable to plea bargains and proffer agreements by suggesting key provisions that should be prohibited in deferred prosecution agreements. Three provisions common to many deferred prosecution agreements, or used by the government as leverage to secure a deferred prosecution agreement, are of particular interest here. These are: (1) the requirement of a corporation to waive its attorney-client privilege; (2) the determination of a breach of the agreement being within the sole province of the government; and (3) the provision that corporations not abide by previously negotiated contract terms that allow the corporation to pay the attorney fees of corporate employees. Specifically, this article examines the viability of specific provisions within these agreements when matched up against contract policing principles such as duress and unconscionability. This article concludes that corporations are deprived of basic contract rights as a result of the over-powering prosecutorial power used in reaching these agreements.