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.

Reader Discussion

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on April 14, 2016 at 15:42:04 pm

What we are observing in these “Deferred Prosecution” actions is a further and specific perversion of the functions of our legal system (and its institutional framework) whereby Rules of Policy (statutes) erode and displace the Rule of “Law” by converting those functions to systems for the attainments of objectives and the determinations of means.

Looking back over something more than the past 600 years, a (if not-the) predominant function “our” legal systems has been the identification, delineation, reconciliation (including enforcement) of obligations recognized and accepted within the social orders extant over those periods of time. That has been true of Law and Equity. Different segments of Western Civilization have used differing instrumentalities, but the function has been remarkably consistent.

Some might prefer to lay these latter developments at the feet of the thinkers of my father’s generation such as Kelsen and Pound; but, what has developed can arguably be said to come from the same factors that gave rise to the embodiment of powers in the Administrative State. It is what the members of the social order, as it is evolving, have created or acceded to. It may not be producing the results expected, or now seen desirable; yet; we cannot deny its source.

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Image of R Richard Schweitzer
R Richard Schweitzer
on May 02, 2016 at 08:01:03 am

[…] So what if the DoJ crafts a private agreement with a corporation that avoids prosecution? What could be wrong with that? […]

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Image of The UnConviction: Why DPAs Don’t Fit The Rhetoric | Simple Justice
The UnConviction: Why DPAs Don’t Fit The Rhetoric | Simple Justice

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