Can Congress Authorize Judicial Review of Deferred Prosecution and Nonprosecution Agreements? And Does It Need To?

Existing legislation affords the federal judiciary a minimal role in overseeing prosecutors’ use of deferred prosecution agreements (DPA) and no role in overseeing nonprosecution agreements (NPA). The judiciary’s only potential foothold to review DPAs is the Speedy Trial Act. The Act provides for a time extension pursuant to a DPA but only “with the approval of the court.” The D.C. Circuit in United States v. Fokker Services recently interpreted this clause narrowly. In an opinion by Judge Sri Srinivasan, the court interpreted the clause against a “backdrop of long-settled understandings about the independence of the Executive with regard to charging decisions.” It found that “[n]othing in the statute’s terms or structure suggests any intention to subvert those constitutionally rooted principles so as to enable the Judiciary to second-guess the Executive’s exercise of discretion over the initiation and dismissal of criminal charges.” The Act therefore “confers no authority” to withhold approval of a DPA “based on concerns that the government should bring different charges or should charge different defendants.” In this Note, Zendeh argues that Judge Srinivasan got the law right but, in the process, potentially got the Constitution wrong. The “backdrop of long-settled understandings” he cites is largely a product of prudential considerations that lack constitutional potency. The constitutionally rooted remainder does not bar Congress from establishing judicially enforceable criteria that prosecutors must follow when determining who to enter into an agreement with, the scope of the agreement, whether breach of the agreement has occurred, and how to enforce an agreement. In short, meaningful judicial review of corporate N/‌DPAs is constitutionally permitted.