HUMANIZING THE CORPORATION WHILE DEHUMANIZING THE INDIVIDUAL: THE MISUSE OF DEFERRED-PROSECUTION AGREEMENTS IN THE UNITED STATES.

• Author: Amulic, Andrea

American prosecutors routinely offer deferred-prosecution and nonprosecution agreements to corporate defendants, but not to noncorporate defendants. The drafters of the Speedy Trial Act expressly contemplated such agreements, as originally developed for use in cases involving low-level, nonviolent, noncorporate defendants. This Note posits that the almost exclusive use of deferrals in corporate cases is inconsistent with the goal that these agreements initially sought to serve. The Note further argues that this exclusivity can be attributed to prosecutors' tendency to only consider collateral consequences in corporate cases and not in noncorporate cases. Ultimately, this Note recommends that prosecutors evaluate collateral fallout when deciding whether to prosecute noncorporate, as well as corporate, defendants and that the Department of Justice adopt departmental guidelines to ensure compliance with this goal.

TABLE OF CONTENTS INTRODUCTION I. DPAs AND NPAs WERE DESIGNED FOR USE IN NONCORPORATE CASES A. DPAs, NPAs, and the Speedy Trial Act B. Recent Use of DPAs and NPAs in Corporate Cases II. PROSECUTORS HUMANIZE CORPORATIONS BUT DEHUMANIZE INDIVIDUALS A. Prosecutors Consider Collateral Consequences for Corporate Defendants Exclusively 1. Collateral Consequences of Corporate Convictions 2. Collateral Consequences of Noncorporate Convictions B. The Consideration of Collateral Consequences Is Humanizing III. PROSECUTORS SHOULD CONSIDER COLLATERAL CONSEQUENCES FOR NONCORPORATE DEFENDANTS A. Proposed DOJ Guidelines B. Alernative Mitigation Methods CONCLUSION INTRODUCTION

Criminal convictions have devastating effects on the lives of convicted defendants long after incarceration. The United States has the highest rate of incarceration in the world, with 1 in 100 adults currently in jail or prison. (1) This rate has increased dramatically in the past forty years--the federal prison population has more than quadrupled in the past thirty-five years. (2) In addition to punishment by incarceration, convicted defendants in the United States also suffer a wide variety of collateral consequences that take effect upon conviction or release, such as disenfranchisement and restrictions on employment. (3) Unlike direct consequences, collateral consequences are not imposed at sentencing but instead by regulations, laws, or policies that a conviction triggers. (4) Communities with high rates of incarceration are harmed by the removal of individuals from these communities, as well as the limitations on reintegration that collateral consequences impose upon their release. (5)

The increased use of deferred-prosecution agreements ("DPAs") and nonprosecution agreements ("NPAs") may mitigate the harmful effects of criminal convictions. A DPA is an agreement through which a prosecutor agrees to defer a defendant's prosecution for a period of time on the condition that the defendant fulfill a set of requirements over that period of time. (6) The prosecutor files criminal charges against the defendant but does not actually investigate or try the case unless the defendant breaches the terms of the agreement. (7) If the defendant successfully completes the requirements, the charges are dropped. (8) An NPA, on the other hand, does not involve filing formal charges against a defendant at the outset. Instead, the prosecutor agrees not to file charges at all, as long as the defendant complies with the agreement's terms. (9) This Note will focus on deferred-prosecution agreements, but similar concerns apply to both types of agreements.

Deferral programs initially arose from a desire to protect vulnerable members of society from the stigma of criminal prosecutions. (10) In the mid- and late 1900s, prosecutors deferred prosecutions of nonviolent, low-level offenders in order to mitigate the harmful collateral effects of convictions. (11) The theory behind deferrals is both utilitarian and rehabilitative. (12) Individuals who have criminal convictions may, for example, have a hard time finding employment upon release and might consequently be more likely to recidivate--a deferral, on the other hand, gives a defendant a second chance. (13) Recently, however, leniency for low-level offenders has not been the norm. (14) Since the early 2000s, the Department of Justice ("DOJ") has entered into several hundred DPAs and NPAs with corporate defendants, (15) but virtually none with noncorporate individuals. (16) Senator Elizabeth Warren has noted the irony in offering such agreements to corporate defendants almost exclusively, stating:

If you're caught with an ounce of cocaine, the chances are good you're gonna go to jail. If it happens repeatedly, you may go to jail for the rest of your life.... But evidently if you launder nearly a billion dollars for drug cartels and violate our international sanctions, your company pays a fine and you go home and sleep in your bed at night. (17) By offering deferrals to only corporate offenders, the DOJ is expressing a great deal of inconsistency regarding how it views corporate and noncorporate defendants in our criminal justice system.

A federal judge recently drew attention to this inconsistent treatment in an opinion that advocated for a reform of the practice of granting deferrals exclusively to corporations. On October 21, 2015, Judge Emmett Sullivan approved the use of deferred-prosecution agreements in a corporate case. (18) He did not exclusively consider collateral consequences but noted that this consideration was one useful factor in evaluating the agreements. (19) Judges have routinely approved deferred-prosecution and nonprosecution agreements for corporate defendants in recent years, so Judge Sullivan's decision to do so in this case was not remarkable. But his inclusion of an additional part to the opinion arguing, in dicta, that "the current use of deferred-prosecution agreements for corporations rather than individual defendants strays from Congress's intent when it created an exclusion from the speedy trial calculation for the use of such agreements" (20) drew some attention. (21) In this part, Judge Sullivan repeatedly expressed disappointment that DPAs and similar tools are not being used to avoid subjecting noncorporate defendants to the "devastating collateral consequences of ... criminal conviction[s]." (22) Although a great deal has been written recently about the use of DPAs and NPAs in the corporate criminal context, and it is virtually uncontested that these agreements were developed for use in noncorporate prosecutions, (23) the literature exploring the derailment of this goal is sparse.

In order to adhere to the promise of justice, actors within the system should treat all defendants with humanity. Treating defendants with humanity requires considering the impact that convictions will have on their lives beyond incarceration, particularly through collateral consequences. (24) Currently, prosecutors treat corporate defendants as human and explicitly consider the human fallout attendant with corporate convictions when deciding whether to defer corporate prosecutions. (25) Meanwhile, however, they treat noncorporate defendants as instruments of crime and fail to consider the human fallout of convictions on noncorporate defendants. (26) This inconsistent treatment should end. Although the potential collateral consequences of corporate convictions are certainly destructive, so are the collateral consequences of noncorporate convictions. These consequences must be considered in choosing whether to prosecute noncorporate, as well as corporate, defendants.

This Note argues that prosecutors should treat noncorporate defendants (27) with humanity and consider collateral consequences in offering DP As and NPAs in the same way they do with corporate defendants. Part I contends that, while DPAs and NPAs arose to address prosecutions for low-level, nonviolent offenses, they have been used much more frequently in the corporate context, particularly in recent years. Part II argues that, since collateral consequences are explicitly considered in corporate prosecutions, prosecutorial failure to consider collateral consequences in noncorporate criminal prosecutions is inappropriate because it results in prosecutors humanizing corporations but dehumanizing individuals. Part III recommends that prosecutors regularly consider offering DPAs and NPAs to noncorporate offenders and explicitly evaluate collateral consequences when making such decisions. (28)

1. DPAS AND NPAS WERE DESIGNED FOR USE IN NONCORPORATE CASES

   In the early 1900s, prosecutors used deferred-prosecution agreements in dealing with low-level, nonviolent individuals, especially juveniles and first-time offenders. (29) This application of DPAs and NPAs has declined, however, and the use of DPAs and NPAs in the corporate context has skyrocketed over the past two decades. (30) This Part details the shift from the initial uses of such agreements in the noncorporate context to the corporate context. Section I.A reviews the mechanics of DPAs and NPAs and analyzes the Speedy Trial Act in the context of the original use of deferrals. Section I.B explains that, in recent years, prosecutors have offered DPAs and NPAs almost exclusively to corporate offenders.

   1. DPAs, NPAs, and the Speedy Trial Act

      Deferrals were initially offered exclusively to noncorporate individuals, as Congress expressly contemplated when drafting the Speedy Trial Act. The Speedy Trial Act requires that a defendant pleading not guilty be brought to trial within seventy days. (31) The Act provides an exception from the seventy-day timeline for "[a]ny period of delay during which prosecution is deferred by the attorney for the Government pursuant to written agreement with the defendant, with the approval of the court, for the purpose of allowing the defendant to demonstrate his good conduct." (32) This provision in the Speedy Trial Act reflects the original purpose for...