Judge Sri Srinivasan said federal judges can’t reject deferred prosecution agreements.

Photographer: Chip Somodevilla/Getty Images

Of Course Judges Can Reject Plea Deals

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The prosecutor offers a deal. The defendant agrees. What right does a judge have to object?

It's a salient question on Wall Street in recent years, as a number of federal judges have rejected plea deals and settlements, saying prosecutors and regulators were being too lenient on the corporate defendants. One such judge, Jed Rakoff, has even waged a parallel critical campaign in the media, pressuring the Securities and Exchange Commission to be tougher on corporate defendants.

On Tuesday the U.S. Court of Appeals for the D.C. Circuit weighed in -- on the other side from Rakoff. In an opinion by Judge Sri Srinivasan, who was seen as a contender for the Supreme Court, the court said that federal judges can’t reject deferred prosecution agreements, a standard plea bargain technique. The opinion reflects a highly passive version of the judicial role, which is good news for defendants, but bad news for the public.

The case arose from a Department of Justice prosecution of Fokker Technologies Holding BV for violations of U.S. sanctions. From 2005 to 2010, Fokker was selling its products to Iran, Sudan and Myanmar, committing 1,147 illegal transactions.

Justice reached a settlement with Fokker in which the company agreed to pay $21 million as part of what’s known as a deferred prosecution agreement. The company also dismissed its president and pledged to reform its ways.

Such deferred prosecution agreements are a standard part of the government’s plea bargain blueprint. Under these agreements, the government files charges but promises to dismiss them if the defendant keeps its part of the deal over time. If it doesn’t, the charges can then be pursued.

Holding charges over a defendant for an extended period would ordinarily violate the constitutional right to a speedy trial. That's not an issue if the government and the defendant appear jointly in court and make a common motion as part of the plea agreement for the judge to suspend the speedy trial clock. A deferred prosecution agreement also prevents a defendant from running out statutes of limitations, because the charges are already filed.

Recognizing this benefit, the Speedy Trial Act passed by Congress, which ordinarily requires trial within 70 days after charges, specifically allows for deferred prosecution agreements. It says that the 70 days don’t include any delay due to a deferred prosecution agreement adopted “with the approval of the court, for the purpose of allowing the defendant to demonstrate his good conduct.”

The act requires judicial approval, which is usually granted to a plea bargain as a matter of course. But federal District Judge Richard Leon, a somewhat maverick George W. Bush appointee who has been in the news for freeing several Guantánamo detainees and declaring the National Security Agency’s metadata collection program unconstitutional, wasn’t happy with the government’s plea deal with Fokker. He said it was “grossly disproportionate to the gravity of Fokker Services’ conduct in a post-9/11 world,” and he refused to approve it under the statute.

Leon was doing a version of what Rakoff and other federal judges have done in recent years when frustrated with what they considered overly lenient deals extended to corporate defendants. This time, however, the Justice Department wasn’t having it. The government appealed to the D.C. Circuit, claiming the Speedy Trial Act requirement of judicial approval doesn’t authorize a judge to reject a deal based on a judgment that it’s not a good deal.

Judge Srinivasan, joined by two stalwart conservatives Reagan appointees, Judges Laurence Silberman and David Sentelle, accepted Justice's argument. Somewhat remarkably, the court held that “there is no ground for reading [the approval] provision to confer free-ranging authority in district courts to scrutinize the prosecution’s discretionary charging decisions.” Srinivasan said that the statute should be interpreted in light of the “background” constitutional principle that the power to make charging decisions “resides fundamentally with the executive.”

As a matter of logic, I don’t find the argument terribly persuasive. Yes, the executive has discretion to make plea agreements. But there’s a reason the statute requires the court to approve the deferred prosecution agreement, namely that the executive shouldn’t have unfettered, absolute discretion over the criminal justice system.

Actual criminal trials have become vanishingly rare, and prosecutors draw on a plethora of federal statutes to charge defendants with many different forms of conduct. That has made prosecutors incredibly powerful. Even without questioning that basic structure, it makes sense for the judiciary to supervise the process.

When Congress gives judges approval power, the strong implication is that they should use their discretion. Sometimes judges may consider a sentence too stiff; other times too lenient. Either way, they should be able to exercise their judgment, which is why we have judges in the first place.

In practice, the opinion seems like a response to Rakoff and the other judges who’ve been pressing the government to be tougher. It’s therefore a win for corporate defendants, who are more likely to have good lawyers and effective negotiating power to reach a deal. But in the long run, it’s a loss for the principle of judicial discretion -- and for public scrutiny of the executive branch.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Philip Gray at philipgray@bloomberg.net