Prosecution Deferred

Deferred prosecution agreements (DPAs) have been used with increasing frequency, particularly in corporate criminal prosecutions, over the past two decades. By allowing prosecutors to offer a path for rehabilitation without requiring a defendant to enter a guilty plea, DPAs present a valuable tool for progressive prosecutors to use in a broader movement for criminal justice reform. However, data on how prosecutors use DPAs––how often they offer them and who they offer them to––has long been lacking. Drawing on a recent national experiment studying state and local prosecutors, this Article aims to supplement the existing data to help answer these questions, then to draw on this more complete picture to conclude that, contrary to congressional intent, DPAs have come to be used in practically every corporate criminal prosecution, while they are offered to resolve only a small fraction of individual prosecutions.

This Article argues that this troubling trend is not only contrary to the legislation that initiated DPAs but also unjustified on public policy grounds. This misalignment can likely be remedied by using DPAs more frequently in individual prosecutions because DPAs are a valuable tool to respond to the endemic challenges of overcriminalization and mass incarceration while still holding individuals accountable for crime. Increasing the use of DPAs allows individuals facing criminal charges an opportunity at rehabilitation without the collateral consequences and the reputational tarnish of prosecution.