A non-prosecution agreement is a written deal between a federal prosecutor and a person or company under criminal investigation in which the government promises not to file charges as long as the subject meets a set of conditions. The entire arrangement lives in a letter between the Department of Justice and the subject’s attorney. No charges are filed, no case is docketed, and no judge signs off. If the subject performs, the matter quietly closes.
How the Agreement Is Structured
An NPA takes the form of a letter agreement from the DOJ to the subject or the subject’s lawyer. Because no charges are filed and no court documents are submitted, the judiciary plays no role whatsoever in the process. The letter spells out what the subject did wrong, what they must do going forward, and how long the agreement lasts. Once every condition is fulfilled, the matter is closed and the government’s ability to prosecute based on the underlying conduct effectively expires.
The lack of court involvement is one of the NPA’s defining features. The prosecutor and the subject negotiate the terms privately, and no judge reviews or approves the deal. That gives prosecutors significant flexibility in crafting terms. It also means there is virtually no external check on how those terms are set or enforced.
What the Subject Has to Do
Every NPA is different, but most share a core set of requirements. Failing any one of them can unravel the entire deal.
Cooperate Fully With the Investigation
The most important condition is full, truthful cooperation with the government’s ongoing investigation. For a company, that means producing documents, making current and former employees available for interviews, and not asserting privileges in ways that obstruct the investigation. For an individual, it often means testifying before a grand jury or at trial against other defendants. Cooperation is not a one-time event. It continues for the entire life of the agreement, which can run several years.1U.S. Department of Justice. Non-Prosecution Agreement – Stryker Orthopedics
Sign an Agreed Statement of Facts
The Justice Manual directs that NPAs should include “an agreed-upon statement of facts outlining the criminal conduct that forms the basis for the agreement.”2U.S. Department of Justice. Principles of Federal Prosecution of Business Organizations This Statement of Facts is not a guilty plea, but it is a formal, written admission of specific wrongdoing. The subject agrees that the facts described are true and accurate. Courts have treated these agreed statements as admissions in later civil litigation, and if the NPA falls apart, the same document essentially becomes a ready-made confession for prosecutors to use at trial.
Pay a Financial Penalty
Most NPAs require a substantial payment. For corporations, the amount is typically calculated by reference to the U.S. Sentencing Guidelines, which consider factors like the financial gain from the misconduct, the harm caused, and the size of the organization. Prosecutors and defense counsel negotiate the final figure. Even in an NPA, penalties can run into the hundreds of millions of dollars for large-scale corporate fraud. The agreement may also include forfeiture of proceeds and restitution to victims.
Overhaul Compliance and Accept a Monitor
For corporate NPAs, the government almost always requires the company to overhaul its internal compliance and ethics programs. That means new policies, stronger internal controls, and employee training aimed at the kind of misconduct that triggered the investigation.
In many cases, the DOJ also requires the company to hire an independent corporate compliance monitor. The monitor is a third party, selected through a process overseen by the DOJ, with broad access to the company’s records, personnel, and operations. The monitor evaluates whether the company is genuinely implementing the required reforms and reports findings back to the government. The company pays the monitor’s fees, which can be significant, and monitorships typically last for the duration of the agreement.
Who Qualifies for a Non-Prosecution Agreement
Not every target of a federal investigation can negotiate an NPA. The Justice Manual lays out factors prosecutors weigh when choosing among an NPA, a deferred prosecution agreement, and a full indictment:
- Seriousness of the offense and the harm or risk to the public.
- How pervasive the wrongdoing was, including whether senior management participated or tolerated it.
- The subject’s history of prior criminal, civil, or regulatory misconduct.
- Willingness to cooperate, including whether the wrongdoing was voluntarily disclosed.
- Quality of the compliance program at the time of the misconduct and improvements since.
- Remedial actions, such as firing responsible individuals, strengthening controls, and paying restitution.
- Collateral consequences, meaning whether a conviction would disproportionately harm innocent third parties.
Self-disclosure carries enormous weight. A company that discovers internal misconduct, reports it to the DOJ voluntarily, and cooperates fully is far more likely to receive an NPA than one that stonewalls investigators until the evidence becomes overwhelming.2U.S. Department of Justice. Principles of Federal Prosecution of Business Organizations The DOJ’s Corporate Enforcement Policy makes this explicit: companies that meet certain self-disclosure and cooperation benchmarks qualify for an NPA with reduced penalties and shorter terms.
The Justice Manual also directs prosecutors to weigh whether a conviction would cause “disproportionate harm to shareholders, pension holders, employees, and others not proven personally culpable.”2U.S. Department of Justice. Principles of Federal Prosecution of Business Organizations For large companies, that concern is often decisive. A conviction can trigger automatic debarment from government contracts, exclusion from federal programs, and reputational harm severe enough to threaten the company’s survival, with the fallout landing on employees and shareholders who had no part in the misconduct.
What Happens If the Agreement Is Breached
Breaching an NPA is one of the worst outcomes a subject can face, arguably worse than never having entered the agreement at all. If the prosecutor determines that the subject violated any condition, the protections of the NPA disappear. The prosecutor can file the original criminal charges and proceed to trial.
The real danger is what the subject has already handed over. Everything provided during cooperation, including the signed Statement of Facts, can be used in the subsequent prosecution. The subject has essentially built the government’s case. A detailed written admission of the underlying conduct, combined with whatever documents and testimony were produced during cooperation, gives prosecutors a far stronger case than they would have had if they had simply indicted at the outset.
Because no court is involved in an NPA, the prosecutor’s determination that a breach occurred is largely unreviewable. There is no judge to appeal to and no hearing where the subject can contest the finding.
Non-Prosecution Agreement vs. Deferred Prosecution Agreement
Non-prosecution agreements are frequently confused with deferred prosecution agreements (DPAs), and the two share many features. Both impose similar conditions: cooperation, financial penalties, compliance reforms, and admissions of fact. The critical difference is whether criminal charges get filed with a court.
With an NPA, no charges are ever filed. The agreement exists entirely between the prosecutor and the subject, and the courts are never involved. With a DPA, the prosecutor actually files a formal charging document with the court, then asks the court to pause the case while the defendant works through the agreement’s conditions. If the defendant completes everything, the charges are dismissed. If not, the case proceeds.3Office of the Law Revision Counsel. 18 USC 3161 – Time Limits and Exclusions
This distinction matters in practice. Because a DPA involves filed charges, the Speedy Trial Act requires court approval to pause the prosecution clock, giving a federal judge at least a minimal role in overseeing the arrangement. With an NPA, no such judicial checkpoint exists. The prosecutor has broader unilateral authority over the terms, enforcement, and resolution.
From the subject’s perspective, an NPA is generally the better deal. No charges appear on any public court docket, which reduces reputational damage and avoids some of the regulatory triggers that a filed charging document can set off. Companies negotiating with the DOJ typically push hard for an NPA over a DPA for exactly that reason.
Public Access to NPAs
Despite the private nature of the negotiations, most corporate NPAs eventually become public. The Justice Manual states that “absent exceptional circumstances, corporate criminal resolution agreements will be published on the Department’s public website.”2U.S. Department of Justice. Principles of Federal Prosecution of Business Organizations The letter agreement, the Statement of Facts, and any accompanying press release are generally available for public review.
Transparency has limits. The negotiations themselves happen behind closed doors, and the published documents often contain a streamlined version of the facts rather than the full investigative record. For individual NPAs, particularly those involving cooperating witnesses in ongoing investigations, disclosure may be delayed or limited to protect the integrity of the larger case. The public can usually see the final agreement; the process that produced it remains largely invisible.