I argue in a forthcoming article[1] that when corporate misconduct results in someone’s death, resolving the ensuing criminal charges with a “C” plea bargain can be antithetical to the pursuit of justice. To support my argument, I examine one of the deadliest corporate crimes in U.S. history: the crashes of two Boeing 737 MAX airplanes in 2018 and 2019.

Pursuant to Rule 11 of the Federal Rules of Criminal Procedure, there are important variations within the plea bargain process.[2] Under Rule 11(c)(1)(A)—or “A” pleas—the prosecutor agrees to not bring certain charges (or to drop other charges) in exchange for a guilty plea. Under Rule 11(c)(1)(B)—or “B” pleas—the prosecutor and defendant agree upon a specific sentencing recommendation in exchange for the defendant’s guilty plea. That recommendation is said to be “nonbinding” because a court is not required to follow it and can instead mete out an entirely different sentence. Finally, under Rule 11(c)(1)(C)—or “C” pleas—the government and defendant agree to a specific sentence in exchange for the defendant’s guilty plea, and the court must accept or reject that agreement without making any changes thereto.

In the paper, I argue that checks and balances are core ingredients in helping to ward off corrupting influences within the judicial system. In that system, various powers and functions are appropriately balanced and separated. Thus, prosecutors determine whether, when, and what charges will be put forth. Juries determine the facts and render the verdict. Finally, if guilt is found, the judge will set forth the penalty. This system provides important protection for the accused, for the victims, and for the public. The paper discusses how this dynamic of balance and separation is  altered when the government decides to address a case using alternative dispute resolution tools like plea agreements or deferred prosecution agreements (DPAs) rather than resolving the case by trial. Criticism of such tools is leveled powerfully by Chris Moore, whose daughter was killed in one of the 737 MAX crashes, and who testified in court that the DPA used in the Boeing case “was a tool of judicial expedience, and overlooked many of the salient facts. The public has not even been informed what facts…were used to relieve the criminals of their true punishment if, in fact, there were any. How can we trust the Department of Justice now?”[3]

The paper also delves into the legislative history of Rule 11, which indicates that Congress intended for federal judges to have control over whether, and to what extent, plea bargaining would be allowed in their respective courtrooms. At least one court has employed that discretionary power, apparently banning C pleas altogether and stating, “At the outset, the Court would note that it never will accept a [C] plea agreement. It is this Court’s prerogative to determine the type of sentence that should be imposed upon a defendant for the offense of which he or she has been adjudged guilty.”[4] Building on this and similar interpretations of judicial authority, the paper explains how C pleas improperly impede judicial discretion in sentencing.

C pleas are commonly used to resolve allegations against corporate entities but rarely used to resolve allegations against individuals, thereby forming a double standard or dual system of justice. There tend to be common justifications for C pleas in the corporate context: First, that they are needed to achieve a guilty plea when the case is weak. But might the case be weak simply because the corporate entity is in fact innocent? Second, that C pleas are needed to induce defendant cooperation. Yet surely the government can employ other tools to secure cooperation, including A pleas and B pleas, as well as things like self-reporting or voluntary disclosure credit.[5] And, third, that C pleas are needed to protect innocent third parties such as company shareholders. In reality, of course, innocent third parties can be harmed whether the defendant is an individual or is some kind of organization, but the government generally fails to take that into account when it comes to defendants who are individuals. As one court put it, “[I]s it that the interests of drug dealers’ innocent wives, children, neighbors, and colleagues are somehow less important than those of a corporation’s shareholders and investment bankers?”[6]

The paper also discusses negotiation theory and mechanics to explain various factors that work together to aid the government in achieving its desired C plea outcome. For example, the prosecutor can engage in “anchoring” through an initial C plea “offer” to the court that is extreme. As Cynthia Alkon and Andrea K. Schneider put it, “[T]he first offer can set the stage for the negotiation in key ways, adjusting the counterpart’s goals and even their perceived alternatives.”[7] If the court rejects the plea, it can be followed by later offers from the prosecutor that are still extreme but that seem more reasonable in comparison. In a typical negotiation in the business world, this process would continue back-and-forth through meetings, emails, etc., until the parties homed in on a deal that was reasonable and fair for all sides. However, in the context of plea bargaining, every government submission (or resubmission) of a plea agreement for court approval requires extensive time and expenditure of limited judicial and administrative resources, thereby creating pressure on the court to accept a deal as early as possible. In effect, these various factors can work together, acting as force multipliers to produce a lesser form of justice than would result from B pleas that are subject to independent judicial review and immediate revision by the court. In the end, the court will likely approve the first or second iteration of a C plea agreement submitted by the government, even in instances when the deal remains objectively overly lenient or overly harsh toward the defendant company.

Plea bargains and other non-adversarial dispute resolution tools can have clear downsides. Unlike those tools, trials ensure a highly competitive process—one in which parties can challenge and contradict the arguments, claims, and testimony of other parties and their experts, and one that can lead to more transparency, more truth, and a higher form of justice than can be attained through a negotiated deal. The paper explains why plea agreements—and especially C pleas—appear to obfuscate facts rather than surface them; limit accountability rather than ensure it; and shield defendants from moral judgment rather than create the openness necessary for such judgment to occur.

Victims of crime in any context, corporate or otherwise, deserve full transparency, full accountability, and the highest order of justice available. Under certain circumstances, plea agreements fail to deliver on those accounts. It is essential for judges to fully realize their constitutionally mandated powers in sentencing parties found to be guilty, and to execute that important function without being influenced by external pressure or interference. In the paper, I urge federal courts to be appropriately skeptical when plea agreements are employed in the corporate context—especially C pleas in cases where the misconduct has led to loss of human life.

ENDNOTES

[1] Peter R. Reilly, Plea Bargain Skepticism When Companies Kill People, 86 Ohio State Law Journal (forthcoming, 2025).

[2] Fed. R. Crim. P. 11(c)(1)(A)-(C).

[3] See Transcript of Arraignment at 69, United States v. Boeing Co., No. 4:21-cr-00005-O-1 (N.D. Tex. Jan. 26, 2023).

[4] United States v. Seidman, 483 F. Supp. 156, 158 (E.D. Wis. 1980) (emphasis added).

[5] See Sept. 15, 2022 Memorandum from Lisa Monaco, Deputy Attorney General, “Further Revisions to Corporate Criminal Enforcement Policies Following Discussions with Corporate Crime Advisory Group,” directing all DOJ components to adopt a written policy to incentivize voluntary self-disclosure by companies.

[6] United States v. Aegerion Pharmaceuticals, Inc., 280 F.Supp.3d 217, 223 (2017).

[7] Cynthia Alkon & Andrea K. Schneider, How to be a Better Plea Bargainer, 66 Wash. U. J. L. & Pol’y 65, 96 (2021).

This post comes to us from Professor Peter R. Reilly at Texas A&M University School of Law. It is based on his recent article, “Plea Bargain Skepticism When Companies Kill People,” available here.