Corporate Deferred Prosecution as Discretionary Injustice

40 Pages Posted: 29 Aug 2017 Last revised: 21 Sep 2017

See all articles by Peter Reilly

Peter Reilly

Texas A&M University School of Law

Date Written: August 24, 2017


A recent federal appellate court ruling of first impression permits the resolution of allegations of serious corporate criminal wrongdoing by way of an Alternative Dispute Resolution mechanism called Deferred Prosecution, without appropriate judicial review. This Article describes why this ruling is ill-advised, and suggests how other courts might address these same legal issues while arriving at different conclusions. This Article argues that if federal prosecutors are going to continue using Deferred Prosecution Agreements (“DPAs”) in addressing allegations of corporate criminal misconduct, then that discretionary power must be confined and checked through meaningful judicial review. The overriding concern with the appellate court ruling is that if the law surrounding corporate DPAs is permitted to develop on its current course, federal prosecutors will continue to use these agreements in a discretionary manner that both subordinates public interest and undermines separation-of-power principles.

Keywords: ADR; DPA; white collar crime; corporate crime; Negotiation; Constitutional Law; Administrative Law; Business Law; judicial review; public interest; separation-of-power; prosecutorial discretion; Deferred Prosecution Agreement

Suggested Citation

Reilly, Peter, Corporate Deferred Prosecution as Discretionary Injustice (August 24, 2017). Utah Law Review, Vol. 2017, No. 5, 2017; Texas A&M University School of Law Legal Studies Research Paper No. 17-57. Available at SSRN:

Peter Reilly (Contact Author)

Texas A&M University School of Law ( email )

1515 Commerce Street
Fort Worth, TX 76102

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