# Deferred and Non-Prosecution Agreement Crosswalk A company under federal criminal investigation has four ways out. It can be let go on terms that are never written into any charge. It can sign a letter promising to behave. It can be charged and have the charge held in suspension for a few years. Or it can plead guilty. The first three are collectively the reason large corporations are so rarely convicted of anything, and they are usually discussed as a single phenomenon — "corporate settlements," "slaps on the wrist." They are not one thing. They differ on nine measurable columns, and this is an ASCII crosswalk of those columns across all four instruments. The organizing finding is a door. Two of the four instruments — the **deferred prosecution agreement** and the **non-prosecution agreement** — are the ones that look most alike from outside. Both leave the company unconvicted, both run on a term of years, both impose compliance obligations, both are negotiated entirely between the company's lawyers and the Department. But a deferred prosecution agreement begins with a criminal charge **filed on a public docket**, which means a judge is involved, a case number exists, and the document is a court record that anyone can pull. A non-prosecution agreement is a letter. No charge, no docket, no case number, no judge at any point from the first meeting to the last day of the term. That single difference decides whether any court ever reads the terms — and, as [[How a Federal Prosecution Begins and Ends]] notes once and does not open, it is the difference the public conversation almost always misses. The reason to draw it now is that on 10 March 2026 the Department of Justice issued its first-ever Department-wide Corporate Enforcement and Voluntary Self-Disclosure Policy, superseding every component-specific and U.S. Attorney's Office-specific corporate enforcement policy then in effect. That document mandates a particular instrument — not as one option among several, but with the word *shall* — for an entire tier of cases. The instrument it mandates is the non-prosecution agreement. Read the whole policy and the phrases "deferred prosecution" and "plea" do not appear in it anywhere. Part E is that reading, and Part G runs all nine columns across all four instruments at once. Companion to [[How a Federal Prosecution Begins and Ends]], which maps the stages this page's four instruments are the exits from, and to [[Prosecutorial Discretion]], which carries the doctrine. Additive to [[Elite Impunity]] and [[Canceled Corporate Enforcement]], which make the political argument this page is the mechanical substrate of, and to [[Epstein Non-Prosecution Agreement]], which is the one such agreement most readers have already heard of and the best worked example of what a letter with no docket behind it can do. > [!note] How to read this chart > **☐** = the instrument is filed on a public court docket, so a judge touches it and the document is a court record · **⊘** = written in law or policy with no remedy attached to it · **◎** = the hinge, the point where judicial review stops and prosecutorial discretion decides alone · **★** = required by Department policy rather than left to prosecutorial discretion · **⏳** = a term of years runs · **⚑** = a structural point worth stopping on · **◈** = this page's own reading or arithmetic, reported by no source · **[untested]** = no court has ruled on this · **[unconfirmed]** = no primary source found; not asserted. > > **☐, ◎, ★ and ⏳ are carried over from earlier maps in this series with their meanings re-pointed at this domain,** and are restated above and inside the fence rather than given new symbols. No officeholder is named inside the fence: every row is an instrument, a statute, a rule, a case or a policy document, because the question here is what each exit requires, not who is currently signing them. Statutes and rules are as in force October 2026; the Department policy was read on 27 October 2026; the two appellate opinions were read in full. ``` DEFERRED AND NON-PROSECUTION AGREEMENT CROSSWALK — FOUR EXITS, ONE DOOR │ Legend: ☐ filed on a public court docket ⊘ written down with no remedy attached │ ◎ the hinge, where review stops and discretion decides alone │ ★ required by Department policy, not discretionary ⏳ a term of years runs │ ⚑ structural point ◈ this page's own reading │ [untested] no court has ruled [unconfirmed] no primary source found │ Time-slice: statutes and rules as in force Oct 2026 · DOJ policy read 27 Oct 2026 │ No officeholder is named inside this fence. Every row is an instrument or a text. │ ■ PART A — THE FOUR EXITS, IN ORDER OF HOW MUCH OF THEM A STRANGER CAN READ │ The ordering principle is not severity. It is visibility. Severity and │ visibility happen to run together for three of the four and come apart │ completely at the second one. │ ├─◆ 1 ... DECLINATION, WITH DISGORGEMENT │ The Department investigates, decides not to charge, and takes the │ money anyway. No charge. No agreement to breach. No term. Under the │ March 2026 policy a company that qualifies "will be required to pay │ all disgorgement/forfeiture" plus restitution and victim │ compensation. What the company buys is the absence of a case. │ A declination letter is published; it is not filed anywhere. │ ├─◆ 2 ... NON-PROSECUTION AGREEMENT (NPA) ⏳ ★ │ A letter. The Department agrees not to charge; the company agrees │ to a statement of facts, a compliance program, continued │ cooperation, and a term. Nothing is filed. No case number is ever │ generated. No judge is ever asked for anything, because nothing is │ pending before one. This is the instrument the March 2026 policy │ makes mandatory for an entire tier of cases — see Part E. ◎ │ ├─◆ 3 ... DEFERRED PROSECUTION AGREEMENT (DPA) ⏳ ☐ │ A charging document IS filed — an information or an indictment — │ and then held. The Department asks the court to stop the speedy │ trial clock while the company serves out its term. At the end the │ Department moves to dismiss. If the company breaches, the charge │ is already sitting there, with an agreed statement of facts the │ company has promised not to contradict. │ A case number exists. The agreement is a court record. │ └─◆ 4 ... GUILTY PLEA A charge, a conviction, a judgment, a sentence. The judge must find a factual basis for the plea under Fed. R. Crim. P. 11(b)(3) and must accept or reject the agreement itself under Rule 11(c)(3) — and Rule 11(c)(1) forbids the court from taking part in the negotiation that produced it. This is the only one of the four where a judge can say no to the deal and mean it. ■ PART B — THE NINE COLUMNS │ Each is a yes-or-no or a short answer, and each is a thing a reader can │ check. Part G runs all nine across all four instruments. │ ├─ 1 ... Is a criminal charge filed? ├─ 2 ... Does a public court docket exist? ├─ 3 ... What may a judge do about the terms? ├─ 4 ... Is there an agreed statement of facts? ├─ 5 ... Is an admission of guilt required? ├─ 6 ... Is a speedy trial waiver or exclusion needed? ├─ 7 ... Is there a compliance term, and how long? ├─ 8 ... Is an independent compliance monitor imposed? └─ 9 ... What happens on breach? ■ PART C — WHERE THE JUDGE ACTUALLY IS, AND WHAT TWO CIRCUITS DID TO IT │ The entire judicial role in a deferred prosecution agreement rests on │ six words in the Speedy Trial Act. Both circuits that have read those │ words read them as narrowly as they can be read. │ ├─◆ THE TEXT ... 18 U.S.C. § 3161(h)(2) │ Excludes from the speedy trial clock any period of delay during │ which prosecution is deferred by the attorney for the Government │ pursuant to written agreement with the defendant, "with the │ approval of the court," for the purpose of allowing the defendant │ to demonstrate good conduct. │ Those six words are the only statutory hook for judicial │ involvement in a DPA. There is no statute governing DPAs as such, │ and none at all governing NPAs. ⚑ │ ├─◆ FOKKER ... United States v. Fokker Services B.V. │ 818 F.3d 733 (D.C. Cir., decided 5 April 2016). The district court │ had refused to approve a DPA it considered too lenient. Reversed. │ Held: "a district court lacks authority to disapprove a DPA under │ § 3161(h)(2) on the ground that the prosecution has been too │ lenient," and "the Act confers no authority in a court to withhold │ exclusion of time pursuant to a DPA" — including on concerns that │ the government should have brought different charges or charged │ different defendants. The approval power reaches one question │ only: whether the agreement is "geared to enabling the defendant │ to demonstrate compliance with the law" rather than "a pretext │ intended merely to evade the Speedy Trial Act's time │ constraints." ◎ │ ├─◆ HSBC ... United States v. HSBC Bank USA, N.A. │ 863 F.3d 125 (2d Cir., decided 12 July 2017). The district court │ had invoked its supervisory power to oversee the DPA's │ implementation and had moved toward unsealing the monitor's │ report. Reversed on both. Held: the district court "erred in sua │ sponte invoking its supervisory power" absent "a showing of │ impropriety"; the monitor's report "is not a judicial document │ because it is not now relevant to the performance of the judicial │ function"; § 3161(h)(2) does not confer "an ongoing oversight │ power over the government's entry into or implementation of a │ DPA." The court's role is "limited to arraigning the defendant, │ granting a speedy trial waiver if the DPA does not represent an │ improper attempt to circumvent the speedy trial clock, and │ adjudicating motions or disputes as they arise." │ └─◆ WHAT IS LEFT OF IT ⊘ ⚑ A DPA goes before a judge, and the judge may examine whether the agreement is a real good-conduct arrangement rather than a device for parking the clock. That is the whole of it. The judge may not reach the length of the term, the size of the payment, the choice of charge, the absence of individual defendants, the presence or absence of a monitor, or anything the monitor later finds. Approval written into a statute, with no power attached to the word. And an NPA does not even get this much, because no case is pending. ■ PART D — WHAT HAPPENS ON BREACH │ This is the column where the two middle instruments separate again, in │ the opposite direction from Part A: the one with the docket is the one │ with the sharper consequence, precisely because the charge is already │ filed and waiting. │ ├─◆ DECLINATION ... nothing to breach │ There is no agreement with continuing obligations and no term, so │ there is no breach to allege. The money was paid at the front. │ What protects the Department is the ordinary statute of │ limitations and nothing else. │ ├─◆ NPA ... the Department may charge, and starts from scratch │ Breach releases the Department from its promise. It must then │ actually build and file a case — within whatever limitations │ period remains, which is why these agreements routinely contain a │ tolling clause and a provision making the agreed statement of │ facts admissible against the company. There is no pending charge │ to revive, because there never was one. [untested] │ ├─◆ DPA ... the Department moves to lift the deferral │ The filed charge is still on the docket. The Department tells the │ court the company breached and asks to proceed on the information │ it filed at the outset, with the statement of facts the company │ agreed not to contradict. The limitations problem was solved on │ day one by filing. Whether a company may contest the breach │ finding, and before whom, is the live question the case law has │ not reached. ◎ │ └─◆ GUILTY PLEA ... nothing to breach either The conviction is entered. What remains are cooperation and compliance provisions whose violation is a sentencing or probation matter, in front of a judge who already has jurisdiction over the company. This is the only one of the four where the judge who hears the breach is the judge who approved the deal. ■ PART E — THE MARCH 2026 POLICY, AND THE ONE INSTRUMENT IT NAMES │ Corporate Enforcement and Voluntary Self-Disclosure Policy, Office of │ the Deputy Attorney General, announced 10 March 2026. It applies to all │ corporate criminal matters handled by the Department except antitrust │ violations under 15 U.S.C. §§ 1-38. Contemporaneous analysis reports │ that it supersedes every component-specific and U.S. Attorney's │ Office-specific corporate enforcement policy then in effect; see Notes. │ ├─◆ PART I ... the declination tier │ The Department "will decline to prosecute" where the company made │ a qualifying voluntary self-disclosure, fully cooperated, timely │ and appropriately remediated, and there are "no aggravating │ circumstances related to the nature and seriousness of the │ offense." The company pays all disgorgement, forfeiture, │ restitution and victim compensation. Prosecutors retain discretion │ to grant a declination even with aggravators present. │ ├─◆ PART II ... the "near miss" tier, and the word SHALL ★ │ For a company that fully cooperated and remediated but is │ ineligible for Part I only because its self-report did not qualify │ as a voluntary self-disclosure, or because aggravating factors │ warrant a criminal resolution, "the Department shall": │ 1. "Provide a Non-Prosecution Agreement (NPA) - absent │ particularly egregious or multiple aggravating circumstances" │ 2. "Allow a term length of fewer than three years" ⏳ │ 3. "Not require an independent compliance monitor" │ 4. Provide a fine reduction of at least 50% but not more than │ 75% off the low end of the Sentencing Guidelines range │ ├─◆ PART III ... everything else │ Prosecutors "maintain discretion to determine the appropriate │ resolution including form, term length, compliance obligations, │ and monetary penalty," with the reduction capped at 50% off the │ Guidelines fine and a presumption of the low end of the range for │ companies that fully cooperated and remediated. │ └─◆ WHAT THE DOCUMENT DOES NOT SAY ⚑ ◈ The phrases "deferred prosecution" and "plea" appear nowhere in the policy. Its flow chart in Appendix A offers three outcomes: declination; "NPA", with "No monitor"; and "Prosecutorial discretion on form, term, monitor, reduction." The only resolution instrument the Department has committed itself by name to providing is the one that is never filed, never docketed, and never seen by a judge. The two instruments that put a case in front of a court are reachable only through the discretionary tier, where the policy promises nothing. This reading is the page's own; the policy makes no such statement about itself. ■ PART F — PUBLICATION IS NOT A DOCKET │ The standard answer to "so nobody can see an NPA?" is that the │ Department publishes them. It does, by its own policy, and that is a │ materially different thing from a court record. │ ├─◆ THE RULE ... Justice Manual 9-28.200 (revised April 2023) │ "Absent exceptional circumstances, corporate criminal resolution │ agreements will be published on the Department's public website." │ The same section requires that plea, deferred prosecution and │ non-prosecution agreements include, to the greatest extent │ possible, an agreed statement of facts and a statement of the │ Department's reasons for entering into the agreement. │ ├─◆ WHAT A POLICY IS NOT ⊘ │ The Justice Manual is an internal Department document. It creates │ no rights, binds no court, and can be rewritten by the officials │ it governs — which is exactly what happened to every │ component-level corporate enforcement policy on 10 March 2026. │ "Exceptional circumstances" is undefined and self-assessed. │ Publication is a practice, revocable, with no remedy if withheld. │ ├─◆ WHAT A DOCKET IS │ A filed case produces a number, an assigned judge, a public │ record that third parties can move to unseal, a forum in which a │ journalist or a victim can file a motion, and an appellate route. │ None of this exists for an instrument that was never filed. The │ gap is not about whether the text can be read. It is about │ whether anyone outside the two negotiating parties has standing │ to ask a question about it. ◎ │ └─◆ AND THE MONITOR'S FILE ⚑ Even on the DPA side, where a docket exists, HSBC settles that the monitor's report is not a judicial document. Where a monitor is imposed at all, the record of whether the compliance program actually worked is a Department file. Under the March 2026 policy's Part II a monitor may not be imposed in the first place. ■ PART G — THE NINE COLUMNS RUN ACROSS THE FOUR INSTRUMENTS │ No glyphs in this grid — every cell is plain text. │ │ │ declination │ NPA │ DPA │ guilty plea │ ──────────────────────┼─────────────┼─────────────┼─────────────┼───────────── │ Charge filed? │ no │ no │ YES │ YES │ ──────────────────────┼─────────────┼─────────────┼─────────────┼───────────── │ Public docket? │ no │ no │ yes │ yes │ ──────────────────────┼─────────────┼─────────────┼─────────────┼───────────── │ Judge may do what │ nothing │ nothing │ bona fides │ accept or │ about the terms? │ at all │ at all │ only │ REJECT │ ──────────────────────┼─────────────┼─────────────┼─────────────┼───────────── │ Statement of facts? │ in the │ yes, per │ yes, per │ yes, plus a │ │ letter │ 9-28.200 │ 9-28.200 │ Rule 11(b)(3) │ │ │ │ │ finding │ ──────────────────────┼─────────────┼─────────────┼─────────────┼───────────── │ Admission of guilt? │ no │ no │ no │ YES │ ──────────────────────┼─────────────┼─────────────┼─────────────┼───────────── │ Speedy trial waiver │ n/a │ n/a │ REQUIRED │ n/a │ or exclusion? │ │ │ § 3161(h)(2)│ │ ──────────────────────┼─────────────┼─────────────┼─────────────┼───────────── │ Compliance term │ none │ under 3 yr │ by │ probation, │ │ │ in the │ negotiation │ set by the │ │ │ mandated │ │ court │ │ │ tier │ │ │ ──────────────────────┼─────────────┼─────────────┼─────────────┼───────────── │ Independent monitor? │ no │ barred in │ by │ by │ │ │ the │ negotiation │ negotiation, │ │ │ mandated │ │ court may │ │ │ tier │ │ impose │ ──────────────────────┼─────────────┼─────────────┼─────────────┼───────────── │ On breach │ nothing to │ build and │ lift the │ nothing to │ │ breach; │ file a new │ deferral; │ breach; │ │ limitations │ case within │ the charge │ sentencing │ │ period is │ limitations │ is already │ or probation │ │ the only │ (tolling │ on the │ consequence │ │ constraint │ clause) │ docket │ │ ──────────────────────┼─────────────┼─────────────┼─────────────┼───────────── │ Named in the │ yes │ YES, with │ no │ no │ March 2026 policy? │ │ "shall" │ │ │ ──────────────────────┼─────────────┼─────────────┼─────────────┼───────────── └─◆ THE SHAPE ⚑ Read across the "Judge may do what" row and the four instruments sort into a line with only one break in it. At the plea, a judge holds a real veto: Rule 11 lets the court reject the agreement outright, and requires it to find a factual basis before entering judgment. At the deferred prosecution agreement, a judge holds the word "approval" and nothing the word normally carries — two circuits have now said the court may check that the agreement is genuine and may not look at any term inside it. At the non-prosecution agreement and at the declination, there is no judge, because there is no case; the only thing standing between the agreement and total invisibility is an internal policy about a website. So the sequence runs: a veto, a formality, nothing, nothing. And the Department's own policy, written in March 2026 and binding on every component, reaches into that sequence and mandates the third step. The one resolution instrument the Department has promised, in the imperative, to provide is the one no court will ever read. The two that generate a docket survive only in the tier where the policy guarantees nothing at all. The usual criticism of corporate settlements is that the penalties are too small. The structural point is prior to that one: for most of these cases there is no forum in which the question of whether the penalty was too small can be asked by anyone who was not at the table. ``` ## Notes - **The March 2026 policy's supersession is broad and was read from a secondary source.** The policy document itself, read in full for this page, states that it applies to all corporate criminal matters handled by the Department except antitrust violations under 15 U.S.C. §§ 1-38. That it supersedes "all component-specific and US Attorney's Office-specific corporate enforcement policies currently in effect" is reported by a 2026 law-firm alert, not quoted from the policy text read here, and is flagged as such. The particular effect on the Criminal Division's May 2025 policy and on any National Security Division policy is not asserted. - **No effective date appears in the policy document.** The only date in the text is October 8, 2019, in a footnote referring to a different Department document. The 10 March 2026 announcement date comes from the Department's press release and from contemporaneous reporting, not from the face of the policy. - **The Criminal Division's May 2025 memo is the stated source of the three-year norm and the monitor-necessity test, and is a different document.** "Focus, Fairness, and Efficiency in the Fight Against White-Collar Crime," 12 May 2025, states that agreement terms "should not be longer than three years except in exceedingly rare cases," that "independent compliance monitors must only be imposed when they are necessary," that "monitorships must be narrowly tailored," and that the Division reviewed every existing monitorship for continued necessity and ended several agreements early. Whether that memo survives the March 2026 policy as to non-CEP questions like monitor selection is left open below. - **Fokker and HSBC are the only two appellate decisions on the judicial role, and they agree.** Both were read in full for this page. Neither has been reviewed by the Supreme Court. The D.C. Circuit and the Second Circuit are the two circuits where the overwhelming share of corporate resolutions are filed, which is why two opinions settle more of the practice than two opinions normally would — but a circuit split remains possible and no other circuit has squarely addressed § 3161(h)(2) approval of a corporate DPA. - **"[untested]" on the NPA breach row means what it says.** No reported decision applies, because a breached NPA produces an ordinary new prosecution rather than litigation about the agreement. Whether a company can defend such a case by disputing the breach, and whether an agreed statement of facts is admissible over objection, are not established here. - **The Epstein non-prosecution agreement is the exception that proves the rule and should not be read as the pattern.** That agreement did reach a court, repeatedly, but only because victims sued under the Crime Victims' Rights Act — a statute about notice to victims, not about the agreement's terms. It took more than a decade, it produced no invalidation of the agreement, and the route it ran through is unavailable in a corporate case with no individual victims. See [[Epstein Non-Prosecution Agreement]]. - **Counts were deliberately not asserted.** No figure appears on this page for how many DPAs, NPAs, declinations or corporate guilty pleas the Department entered in any year. A 2026 mid-year survey of corporate enforcement consulted for this page gives no such totals by instrument, and no primary Department tally was located. Any claim that DPAs are now rarer than NPAs would be an inference this page is not in a position to make. - **Two resolutions under the new policy are identifiable and both are declinations.** A declination with approximately $1.2 million in disgorgement was announced on 19 March 2026 in a medical-device matter, reported as the first resolution under the Department-wide policy; the National Security Division announced its first declination under the policy on 17 June 2026, alongside a civil penalty of roughly $36 million from a separate agency. Both are reported from law-firm alerts and trade coverage, not from Department press releases read directly, and neither is an NPA, so neither tests Part II. - **What a monitor is and is not.** A monitor is a private party, paid by the company, reporting to the Department. Nothing makes the monitor an officer of the court, and HSBC holds the report is not a judicial document. The March 2026 policy forbids a monitor in the mandated NPA tier outright, which means the tier the Department has committed to using is also the tier with no independent verification of compliance built into it. - **The "nothing to breach" cells in Part G are about the instrument, not about impunity.** A declination or a plea can be followed by a new prosecution for new conduct like any other case. The cells say only that the instrument itself contains no continuing promise whose violation triggers a specific remedy. - **No officeholder is named inside the chart.** The seats that sign these agreements turned over hard in 2025 and 2026, and a chart built on incumbents would be a directory with a short shelf life. Where this page names a document it names the office and date that issued it. - **What was deliberately not asserted.** No count of resolutions by instrument in any year. No claim about the current number of active monitorships. No claim that the March 2026 policy caused any change in the mix of instruments, which would require counts this page does not have. No reading of the policy's silence on DPAs and pleas as intentional. No characterisation of the conduct in any individual resolution. No assertion that the Criminal Division's 2025 memo is or is not still operative. - **Questions left open.** Whether any court has ever refused a § 3161(h)(2) exclusion after Fokker, on the narrow pretext ground the opinion left available. Whether a third circuit will read the approval power more broadly. Whether the March 2026 policy's Part II mandate has produced a single NPA yet, and on what terms. Whether the Criminal Division's May 2025 monitor guidance survives the Department-wide policy. Whether the "exceptional circumstances" exception to publication under 9-28.200 has ever been invoked, and whether anyone outside the Department would know if it had. Whether a company can contest a breach determination under a DPA, and in front of whom. - **Symbol note.** No new glyph was invented for this page. `☐`, `◎`, `★` and `⏳` are carried over from earlier maps in the series with their meanings re-pointed at this domain and restated in the legend and inside the fence: `☐` now marks an instrument filed on a public docket rather than a notice duty owed to Congress, `◎` the point where judicial review stops rather than where federal law stops, `★` a Department-policy mandate rather than Senate confirmation, and `⏳` a negotiated term rather than a statutory one. `⊘`, `⚑` and `◈` carry the meanings established in earlier maps unchanged. The Part G grid is glyph-free per the 2026-10-24 series rule. ## See also - [[How a Federal Prosecution Begins and Ends]] · [[Prosecutorial Discretion]] · [[Speedy Trial Act]] · [[Justice Manual]] · [[Department of Justice]] - [[Deferred Prosecution Agreement]] · [[Non-Prosecution Agreement]] · [[Compliance Monitor]] · [[United States v. Fokker Services]] · [[United States v. HSBC Bank USA]] - [[Corporate Enforcement and Voluntary Self-Disclosure Policy]] · [[Foreign Corrupt Practices Act]] · [[Canceled Corporate Enforcement]] - [[Epstein Non-Prosecution Agreement]] · [[HSBC]] · [[Elite Impunity]] · [[Corporate Personhood]] · [[Regulatory Capture]] - [[Agency Head Removal Protections Crosswalk]] · [[How an Acting Official Is Installed]] · [[Executive Branch Org Chart]] - [[Judiciary Hub]] · [[Foundations Hub]]