Federal Courts Have Authority to Review Deferred Prosecution Agreements

The federal Speedy Trial Act Provides federal courts with the authority to review whether or not to approve deferred prosecution agreements. Not so for non prosecution agreements.

That’s the conclusion of University of Virginia Law Professor Brandon Garrett.

Last month, federal Judge Emmett Sullivan called on Professor Garrett to brief the matter in corporate deferred prosecution case involving Saena Tech.

Garrett filed the amicus brief last week.

In it, Garrett concludes that “the court retains unqualified discretion to approve a deferred prosecution agreement or not, just as with a plea agreement.”

“In contrast to the deferred prosecution agreement in this case, a non-prosecution agreement is not filed with a court. While distinct from a declination, such an agreement cannot implicate supervisory authority of a court, since the court is not asked to approve it.”

“However, a deferred prosecution agreement is filed in court and seeks the approval of a court, after which the case will remain on the court’s docket for a defined period of time, subject to compliance with the terms of the agreement.”

Garrett said that courts “have routinely conducted individualized assessments of deferred prosecution agreements with corporations as part of their decision whether to approve such agreements.”

“In doing so, courts have remained deferential, as with any settlement reached between parties at arms length, but they have nevertheless considered the public interest, reasonableness, fairness, equity, and other factors, in deciding whether to approve such an agreement,” Professor Garrett writes. “To be sure, corporate deferred prosecution agreements are a fairly recent phenomenon, and the vast bulk of these agreements have been approved, sometimes after hearings, but often without hearings or written decisions. Yet some courts have issued written decisions explaining the standards applied, particularly in recent years as the practice has become more established. Those courts have approved the agreements as drafted after conducting such review. Such standards are consistent with ensuring that an agreement serves to provide a meaningful opportunity for the defendant to assure the Government of its good conduct”.

What subjects might be particularly worthy of judicial scrutiny?

“A court would be particularly deferential in reviewing the decision whether to offer pre-trial diversion to a defendant; for example, courts have long held that a defendant cannot claim any right to obtain a deferred prosecution settlement.”

In addition, Garrett wrote, the terms of the agreement itself may raise a range of fairness and reasonableness-related concerns.

These terms includes fines, compliance, monitors, cooperation, collateral consequences, victims, regulators and delay.

“The complexity of corporate deferred prosecution agreements and their public importance provides all the more reason to conduct a careful individualized review of the fairness and reasonableness of organizational deferred prosecution agreements before approval,” Garrett wrote. “Doing so may safeguard the public interest, as with the judicial review of plea agreements and civil settlements, and judicial review may also avoid unnecessary disputes during the implementation of a deferred prosecution agreement with an organization.”

Garrett is the author of the soon to be published Too Big to Jail: How Prosecutors Compromise with Corporations (Harvard University Press, October 2014.)

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