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Deferred Prosecution: Meet the Fokkers

Some months ago, I wrote about “deferred prosecution agreements” (DPA’s”). Initially intended to deal with low-level drug offenders, DPAs have become a principal means of prosecuting corporations. The way it works: the government files criminal charges but agrees to drop them if the defendant undertakes remedial action (including fines) and demonstrates good conduct over time. The deal requires “approval of the court” because without it, the deferment would violate the Speedy Trial Act. 18 U.S.C. § 3161(h)(2).

How much scrutiny can or should the court give to a DPA? Practically none, the D.C. Circuit held last week, in the very first and possibly the last appellate decision on the subject. In U.S. v. Fokker Services, the district court had refused a proposed DPA as hopelessly inadequate in light of the defendants’ conduct and admissions. Among other things, the court demanded to know why the government hadn’t charged the company’s officers. A D.C. Circuit panel (Judges Srinivasan, writing; joined by Judges Sentelle and Silberman) reversed and issued an unusual mandamus order, effectively instructing the district court to approve the agreement. The case for the government was capably briefed and argued by my buddy Aditya Bamzai (who has just accepted a teaching position at UVA Law School). For want of a party opposing the DPA, the court appointed its own amicus.

The appellate panel “construe[d] the ‘approval of the court’ language in § 3161(h)(2) in a manner that preserves the Executive’s long-settled primacy over charging decisions and that denies courts substantial power to impose their own charging preferences.” If you put it that way—as an interference with charging preferences, rather than an examination of the DPA’s substance—the result is a foregone conclusion. The court below, Judge Srinivasan admonished, “should have confined its inquiry to examining whether the DPA served the purpose of allowing Fokker to demonstrate its good conduct, as contemplated by § 3161(h)(2).” Can the approving court at least examine whether the DPA contains illegal or unethical provisions? Amazingly, the panel opinion hedges the answer with a disturbing “insofar” (“insofar as a court has authority to reject a DPA if it contains illegal or unethical provisions…”)

As a matter of interpreting the Speedy Trial Act provision, the panel may well be right. And at the end of the day it’s hard to see how a court could scrutinize a DPA for adequacy (or whatever) without second-guessing the charging decisions, or without inducing the government to manipulate those decisions for the purpose of obtaining approval. Still, there’s something dismaying about the opinion. My earlier piece explained the rule-of-law concerns that scholars have voiced about DPAs. The Fokker opinion, in sharp contrast, oozes with “trust your friendly prosecutor” language:

DPAs have become an increasingly important tool in the government’s efforts to hold defendants accountable. They afford prosecutors an intermediate alternative between, on one hand, allowing a defendant to evade responsibility altogether, and, on the other hand, seeking a conviction that the prosecution may believe would be difficult to obtain or would have undesirable collateral consequences for the defendant or innocent third parties. The agreements also give prosecutors the flexibility to structure arrangements that, in their view, best account for the defendant’s culpability and yield the most desirable long-term outcomes. (boldface added).

Yes. Well. Inquiring minds might want to know whether the conviction would be “difficult to obtain” for practical reasons—or because the charges are preposterous and brought for reasons bordering on extortion. Conversely, one would think that “undesirable consequences for the defendant” are the point of a criminal prosecution. What sorts of “collateral” consequences are we talking about, then—we’ll let the CEO off the hook because no one else can run Goldman Sachs?

No judicial scrutiny means more than boundless prosecutorial discretion. It means mobilizing the courts to create a due process façade for highly suspect bargains. The Fokker panel, I think, underestimates the potential for abuse and the rule-of-law costs.

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