"Prosecution Deferred"

The title of this post is the title of this recent article available on SSRN authored by Shima Baradaran Baughman and Taylor Broadbent. Here is its abstract:

Deferred prosecution agreements (or 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 ever having to bring charges against a defendant, deferred adjudication presents 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 are offered, and who they are offered to –– has long been lacking.  Drawing on a recent national experiment studying state and local prosecutors, we aim to supplement the existing data to help answer these questions.  We then draw on this more complete picture of how prosecutors at all levels are using DPAs 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.  We argue that this troubling trend not only runs contrary to the legislation that initiated deferred prosecution agreements but is unjustified on public policy grounds.  This misalignment can likely be remedied by using deferred adjudication more frequently in individual prosecutions, presenting 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 deferred adjudication allows individuals facing criminal charges an opportunity at rehabilitation without the collateral consequences and reputational tarnish of prosecution.