Kaleb Byars on the Double Standard in the Sentencing Guidelines

There is a double standard of justice in America – one for corporate criminals and one for individual criminals.

Take the case of the federal sentencing guidelines. 

Under the guidelines, recidivists are treated more harshly than non recidivists. 

In determining recidivism for individuals, the guidelines take into account both convictions and other settlements, like deferred prosecution agreements.

But for corporations, deferred prosecution agreements are not taken into consideration to determine a corporation’s criminal record.

Now, Mercer Law School’s Kaleb Byars is out with a new paper – Recidivist Organizational Offenders and the Organizational Sentencing Guidelines – in which he reports that the sentencing guidelines as currently written ignore the practical reality that corporate misconduct doesn’t always result in a conviction. Instead, federal prosecutors regularly use deferred prosecution agreements and non-prosecution agreements to resolve corporate criminal cases.

“Organizations, like individuals, commit criminal offenses,” Byars writes. “Indeed, organizations, like individuals, commit multiple criminal offenses. But organizations, unlike individuals, regularly receive the benefit of deferred prosecution agreements or non prosecution agreements instead of criminal convictions following their offenses.” 

“As a result, organizations, unlike individuals, fail to have their criminal history appropriately considered under the sentencing guidelines,” Byars writes. “It is axiomatically unfair when two similarly-situated entities receive differential treatment. The current sentencing guidelines perpetuate unfairness by failing to require courts to uniformly consider organizations’ prior deferred and non prosecution agreements.”

“The Department of Justice and Congress have already made substantial strides toward corporate criminal enforcement reform. Nevertheless, further reform is needed to tackle the problem of corporate crime economically and fairly. Amending the sentencing guidelines to require appropriate consideration of organizations’ prior deferred and non prosecution agreements would be meaningful reform.”

“As the Sentencing Commission is developing and implementing acceptable amendments, courts may use their discretion to impose upward variances and departures for organizations that have significant criminal history. These steps will lead to greater deterrence and fairness in corporate criminal enforcement.”

“In this paper, I point out that deferred prosecution agreements are considered when an individual is sentenced, but not when an organization is sentenced,” Byars told Corporate Crime Reporter in an interview last week. “That doesn’t really make sense.” 

“The purpose of these deferred prosecution agreements for individuals is to give leniency for a first time non-violent offender so that they won’t have a conviction on their record that might cause them harm. But the guidelines specifically say that this is not meant to give them extra leniency if they do reoffend. Because of that, the Sentencing Guidelines require a sentencing court to consider prior deferred prosecution agreements of an individual.” 

“But the guidelines don’t mention whether prior deferred prosecution agreements for organizations ought to be considered. And I do think that is a mistake. If an organization is committing offense after offense, that’s a sign that the compliance reforms, the fines that have been imposed, are not achieving their purpose.” 

“That is a real double standard that doesn’t make sense.”

Did you find out how that double standard came about?

“I did some research to try and figure out why these guidelines were passed in this way. It’s possible that it is out there and I didn’t find it. The Sentencing Commission created these guidelines, starting in 1984 with the Sentencing Reform Act. When the guidelines were created, deferred and non-prosecution agreements were not used, at least not very often, to resolve corporate criminal offenses.” 

“When the guidelines were created, there would have been no need to address organization deferred or non prosecution agreements. The Sentencing Commission amends the guidelines regularly. Over time, they consider different priorities and get input from practitioners and other stakeholders to figure out what priorities to focus on.” 

“I do know the legislative history of the Speedy Trial Act, which created deferred prosecution agreements for individuals. My guess is that over time, as the guidelines have been amended, the Commission has not received sufficient input relating to how deferred prosecution agreements for organizations should be treated under the guidelines.”

“In fact, the guidelines don’t address corporate deferred and non prosecution agreements at all. That suggests to me that the Sentencing Commission didn’t make a conscious choice about this. It’s just that they have not taken the issue up for consideration.”

We interviewed Mary Jo White in 2005. She claims to be, in effect, the mother of corporate deferred prosecutions agreements. She said she created the first one for Prudential Securities in 1994 when she was the United States Attorney in Manhattan.

So we’ve gone from a system that would criminally prosecute corporations, get a guilty plea or go to trial, or just not bring a case – to a system that hands out these deferred and non prosecution agreements and even declinations if you self-report and cooperate. And even if you don’t, even if there is a near miss and you don’t meet the conditions for getting these agreements, you can still get them.

“I’m familiar with the new Justice Department Corporate Enforcement Policy. That policy says that an organization will receive a declination if it voluntarily self-discloses, fully cooperates with the investigation, timely and appropriately remediates and there are no aggravating circumstances. Even with a declination, the organization is still going to have to pay disgorgement, forfeiture and restitution for the offense.” 

“Then the policy says that if an organization is not eligible for a declination because it didn’t appropriately voluntarily disclose its misconduct or there were some aggravating circumstances, then the organization will receive a non prosecution agreement and a fine. But that fine will be discounted by 50 percent to 75 percent below the fine guidelines range. That means the government is going to be imposing an extremely low fine.” 

“And even if an organization is not eligible for either a declination or a non-prosecution agreement, prosecutors have the discretion to resolve the case however they choose to resolve it.”

“You say this is a policy of organizational leniency. I agree. Think of serious cases like Boeing or General Motors, where there were hundreds of deaths resulting from corporate crime. This policy seems to say that as long as an organization comes forward and says – hey, we did this – they are either going to get a declination or a non prosecution agreement. For both, there is no formal criminal conviction. And there will be a substantially discounted fine.” 

“So yes, the policy is going to result in significant leniency toward organizations. The policy does serve some good purposes. It establishes a somewhat predictable framework for organizations that might encourage more self-reporting that will allow the government to efficiently resolve more cases. And that seems to be a public good.”

  “On the other hand, the policy is somewhat broad. For example, it doesn’t define what aggravated circumstances are. It might be difficult for organizations who want to self-report to decide whether to do so because the government might unilaterally decide that the case involves aggravating circumstances.” 

“And then it’s unclear when an organization has to disclose the misconduct in order to qualify as a timely disclosure for it to be a voluntary self-disclosure. The policy uses ambiguous language on that point.”

“The policy increases transparency. The Department now says that all declinations are going to be made public by the Department, which is a good thing. The policy also says that prosecutors have to explain why the company received certain cooperation credits.”

  As you point out in your paper, these are pretty serious corporate crimes that are being resolved with declinations. Case in point – Boeing – which a federal judge called one of the deadliest corporate crimes in American history. 

Let’s say a reckless, drunken driver who kills a bicyclist on the side of a road, goes home and calls the police to self-report and cooperate. The community would be outraged if that driver got a declination or a non prosecution agreement. How is that killing different from corporate crimes that result in death?

“I agree with you that it really is not that much different and we shouldn’t treat them much differently. Many commentators view them differently, as I said, because an organization is an imaginary thing.. All organizational offenses occur through individuals who engage in bad conduct.” 

“The rationale is – if we hold a corporation accountable, who is going to be harmed? Innocent shareholders, employees who lose their jobs, customers who lose the ability to purchase goods or services from the company.” 

“The individual is responsible for their own conduct more directly. And while there are collateral consequences of an individual prosecution – maybe a child no longer has a parent at home because the father has been incarcerated – those consequences are more appropriate or fair in the individual context.”

“But I agree with you that it is outraging that the government doesn’t seek more formal prosecutions in some of these cases. I don’t debate that prosecutors are oftentimes seeking to achieve justice in the best way that they can.” 

“Deferred and non prosecution agreements are often used in instances where it is clear that the offense is extremely serious. In the individual context, the individual might receive a deferred prosecution agreement when it is a non violent offense and the defendant is a first time offender. So there is less culpability on the part of the individual who gets a deferred prosecution agreement.”

“In the organizational context, the government is trying to avoid collateral consequences or to efficiently resolve cases. And those are good cases. But in some cases, it does not make any sense to offer those agreements because the culpability is so high. Boeing has entered these criminal resolutions in the past.” 

“And now it is involved with the deadliest corporate crime in U.S. history with over 300 deaths. And that case was going to be resolved with a plea agreement. And the only reason that didn’t happen is because the judge rejected the plea agreement. It seemed like the government wanted to just resolve the case and not jump through the hoops that the court was creating, so the government just dismissed the case with a non prosecution agreement.”

[For the complete q/a format Interview with Kaleb Byars, 40 Corporate Crime Reporter 13(12), March 23, 2026, print edition only.]