More Than Just a Potted Plant: A Court’s Authority to Review Deferred Prosecution Agreements Under the Speedy Trial Act and Under Its Inherent Supervisory Power

Mary Miller*

In the last decade, the Department of Justice has increasingly relied on pretrial diversion agreements as a means of resolving corporate criminal cases short of prosecution. These pretrial diversion agreements—non-prosecution and deferred prosecution agreements—include substantive terms that a company must abide by for the duration of the agreement in order to avoid prosecution. When entering a deferred prosecution agreement, the Department of Justice files charges against the defendant corporation as well as an agreement outlining the variety of terms with which the company must comply. This delay in prosecution is permitted under the Speedy Trial Act, which provides an exception to the general requirement that prosecution commence seventy days after charges are filed for delays intended to allow a defendant to demonstrate “good conduct.” Until very recently, these agreements were accepted and approved by courts without question. In 2014, however, over the objection of the Department of Justice, a district court scrutinized a deferral and, in 2015, a second district court rejected a deferral because the terms of the agreement were, in its view, much too lenient. The 2015 rejection has raised questions about the proper roles of courts and prosecutors in resolving criminal cases. In particular, judicial review of deferred prosecution agreements might improperly interfere with the Executive’s discretion in deciding whether to prosecute a criminal defendant, thereby violating separation-of-power principles. This Note argues, however, that judicial review is appropriate and constitutionally permissible. First, review authority is appropriate because Congress has granted the courts that review authority under a proper reading of the Speedy Trial Act. Additionally, the congressional grant of review authority is bolstered by the inherent supervisory power of courts to ensure the fair administration of criminal justice.

* J.D., May 2016, University of Michigan Law School. I would like to thank University of Michigan Law School Professors Rebecca Eisenberg, Nina Mendelson, and David Uhlmann, the University of Michigan Law School Student Scholarship Workshop, and Matthew Sappington for constructive feedback throughout this project. I would also like to thank Erin Chapman, Andrea Scanlan, Sachi Schuricht, Julie Siegel, Danielle Kalil-McLane, Matt Wallace and the Michigan Law Review Notes Office for insightful comments and excellent editing. I will be clerking for Judge Richard J. Leon of the District Court for the District of Columbia for the 2019–2020 term. All views are my own and all errors are my own.

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