Corporate Deferred Prosecution as Discretionary Injustice

Abstract

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