Humanizing the Corporation While Dehumanizing the Individual: The Misuse of Deferred-Prosecution Agreements in the United States

Michigan Law Review Volume 116 Issue 1 Article 3 2017 Humanizing the Corporation While Dehumanizing the Individual: The Misuse of Deferred-Prosecution Agreements in the United States Andrea Amulic University of Michigan Law School Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Business Organizations Law Commons, Criminal Law Commons, Law and Society Commons, and the Legislation Commons Recommended Citation Andrea Amulic, Humanizing the Corporation While Dehumanizing the Individual: The Misuse of DeferredProsecution Agreements in the United States, 116 MICH. L. REV. 123 (2017). Available at: https://repository.law.umich.edu/mlr/vol116/iss1/3 This Note is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact . NOTE Humanizing the Corporation While Dehumanizing the Individual: The Misuse of Deferred-Prosecution Agreements in the United States Andrea Amulic* 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124 I. DPAs and NPAs Were Designed for Use in Noncorporate Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 A. DPAs, NPAs, and the Speedy Trial Act . . . . . . . . . . . . . . . . . . . . 128 B. Recent Use of DPAs and NPAs in Corporate Cases . . . . . . . . . 131 II. Prosecutors Humanize Corporations but Dehumanize Individuals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 A. Prosecutors Consider Collateral Consequences for Corporate Defendants Exclusively . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 1. Collateral Consequences of Corporate Convictions . . . 135 2. Collateral Consequences of Noncorporate Convictions 139 B. The Consideration of Collateral Consequences Is Humanizing 141 III. Prosecutors Should Consider Collateral Consequences for Noncorporate Defendants . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 * J.D., December 2016, University of Michigan Law School. I would like to thank the many Michigan Law Review editors who worked on this piece, particularly Emma Shoucair, Z. Zheng, Alexandra Fedorak, James Mestichelli, and John He. Many thanks to Professor Sonja Starr for helpful feedback, as well. Finally, I would like to thank the Volume 115 Notes Office for being excellent editors and even better friends. 123 124 Michigan Law Review [Vol. 116:123 A. Proposed DOJ Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 B. Alternative Mitigation Methods . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152 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 1. See, e.g., Anne R. Traum, Mass Incarceration at Sentencing, 64 Hastings L.J. 423, 428 (2013). 2. See Mark Osler & Mark W. Bennett, A “Holocaust in Slow Motion?” America’s Mass Incarceration and the Role of Discretion, 7 DePaul J. Soc. Just. 117, 127 (2014) (citing Statistics, Fed. Bureau Prisons, http://www.bop.gov/about/statistics/population_statistics.jsp [https://perma.cc/9RKB-KDH2]). 3. See generally National Inventory of Collateral Consequences of Conviction (“NICCC”), Council St. Gov’ts, https://niccc.csgjusticecenter.org/map/ [https://perma.cc/HC9UGQNW] [hereinafter NICCC]. 4. See Jenny Roberts, The Mythical Divide Between Collateral and Direct Consequences of Criminal Convictions: Involuntary Commitment of “Sexually Violent Predators”, 93 Minn. L. Rev. 670, 678 (2008). 5. See Robert J. Sampson & Charles Loeffler, Punishment’s Place: The Local Concentration of Mass Incarceration, 139 Daedalus 20, 29 (2010). 6. See Court E. Golumbic & Albert D. Lichy, The “Too Big to Jail” Effect and the Impact on the Justice Department’s Corporate Charging Policy, 65 Hastings L.J. 1293, 1299–300 (2014). 7. See id. 8. Id. October 2017] The Misuse of Deferred-Prosecution Agreements 125 formal charges against a defendant at the outset. Instead, the prosecutor agrees not to file charges at all, as long as the defendant (...truncated)