Department attorneys considering the use of plea agreements, deferred prosecution agreements, or non-prosecution agreements involving a payment to a non-governmental third party must consult the guidelines and limitations governing such agreements. See Memorandum from the Attorney General, Guidelines and Limitations for Settlement Agreements Involving Payments to Non-Governmental Third Parties (May 5, 2022); JM 1-17.000. Department attorneys proposing an agreement involving a payment to a non-governmental third party must obtain the approval of the Deputy Attorney General or the Associate Attorney General, as appropriate, and explain how the proposed payments comply with the Memorandum’s guidelines and limitations. See id. As noted in the Attorney General’s Memorandum, no approval is required for the following types of settlements: (1) Otherwise lawful payments or loans, in cash or in kind, that provide restitution or compensation to a victim or that otherwise directly remedy the harm sought to be redressed; (2) in cases of foreign official corruption, payments to a trusted third party when required to facilitate the repatriation and use of funds to directly benefit those harmed by the foreign corruption; (3) payments for legal or other professional services rendered in connection with the case; and (4) payments that are expressly authorized by statute or regulation, including restitution and forfeiture. See id.

United States Attorneys’ Offices contemplating such agreements in a matter involving environmental crimes shall consult with the Environmental Crimes Section of the Environment and Natural Resources Division, which has issued additional guidelines and limitations to address certain recurring issues in environmental criminal cases.

This section does not, of course, restrict a defendant’s own decision, outside the context of a plea agreement, deferred prosecution agreement, or a non-prosecution agreement, to unilaterally pay monies to a charitable, educational, community, or other organization or individual, and then to request leniency from the judge at sentencing based upon such action.

[updated August 2022]