What is an Agreement to Not Pursue Prosecution?
Settlement Agreements not to Pursue Criminal Charges are just that…Settlement Agreements
To understand the Settlement Agreement to not pursue criminal charges (in this case they are really "deferred prosecution agreements"), it is helpful to first understand what a settlement agreement is. Generally, a Settlement Agreement is a contract of sorts which involves two or more parties. The terms of the agreement are usually negotiated with the help of attorneys. The purpose of this type of agreement is to resolve a matter between two or more parties without having to go to court. For some people, this means avoiding extensive legal fees. For others, a settlement agreement avoids the time commitment of a court case. Generally speaking, a settlement agreement of one type or another is fairly standard fare in civil litigation. In criminal cases, most people, but not all, make the assumption that a deferred prosecution agreement is some sort of rational discussion the prosecutor has made that does not include the advice of the defense attorney, the defense attorney may just be an afterthought. A settlement agreement of one form or the other is, in many ways, an entirely different way to resolve an issue. In criminal cases, there may be a Fair and Just way to resolve the case, as opposed to a Fair and Just sentence, typically reserved for final disposition. A deferred prosecution agreement is entered into based upon the assumption that there is some sort of best way to resolve the case, and that is a path that intentionally avoids the receipt of a felony conviction. This may be something as complicated and involved as a typical plea agreement (where a defendant pleads guilty to a qualifying felony, but can later have the felony conviction erased, if they have complied with the conditions of the agreement) or it can be something as simple as a domestic relations case where the charges are dismissed as long as the defendant complies with the various conditions of the agreement . The key is that once the prosecutor agrees to dismiss the charges the defendant does not plead guilty to the charge or any similar charge (in most, but not all cases; often, a domestic relations case can also be the subject of a nolle prosequi, or no-bill). It is safe to say a settlement agreement is not a plea agreement. A plea agreement, with some exceptions, will generally mean that the defendant enters a plea of guilty to a charge, the guilty plea is recorded, and a felony is imposed. In a Settlement Agreement, the Court is normally not involved, and if they are involved it is on the sentencing issue. And, even then, for a deferred prosecution, it may not even be the Court that if issuing a sentence, the charge may be dismissed, so the settlement agreement is not directly subject to the Court’s review. When the settlement agreement occurs, it is up to the discretion of the prosecutor to create and impose the terms and conditions of the agreement. This means a prosecutor can seemingly have the discretion to issue a settlement agreement based upon nothing other than whim. Literally, they can issue an agreement for something as harmless as saying hello to someone or something as heinous as asking a lawyer to drop a murder charge in exchange for a settlement agreement. As noted, for a deferred prosecution agreement, the Defendant will most often not appear in Court at any time. Generally, when a Court is involved, the Court is merely imposing a sentence as to the terms and conditions of the agreement, and will require the defendant to come back to Court only if the prosecutor wants the felony conviction to be imposed (assuming the defendant fails the terms and conditions of the agreement).
The Legal Basis for Agreements in Criminal Prosecutions
The legality of entering into settlement agreements to not pursue criminal charges is rooted in both statutory law and judicial precedent. While the former is more straightforward, as detailed below, the latter is arguably more relevant to whether a purported settlement is valid and legally binding on both parties.
Statutory authority for settlements in criminal cases
As discussed above, under Florida law a prosecutor may enter into settlement agreements, pursuant to Section 648.48 of the Florida Statutes. This statute is structured as an add-on to the Surety Agent Statute, and permits the Florida Department of Financial Services ("DFS") to enter into settlements relating to claims that the Surety Agent identified in his or her bond. It is unclear, however, whether Entering into such settlement agreements would also apply to criminal conduct generally.
The Florida courts’ jurisprudence
In the absence of statutory authority, either allowing or prohibiting district attorneys from entering into agreements with defendants in criminal cases, courts have cogently observed that under the common law, the prosecutor also is unauthorized to enter into settlement agreements to avoid the effectuation of procedure by not pursuing criminal charges. See In re Anthony, 88 P. 807 (Cal. 1907); see also State v. Orndoff, 118 P.2d 797 (Or. 1941).
To that end, Ontario County (New York) Court Justice Craig J. Doran cogently opined:
In the case at bar, the prosecution and defense have entered into an agreement to resolve the pending charges against the Defendant in exchange for a donation to a local charitable organization. It is respectfully submitted that such an arrangement has no basis in law or fact and offends the legal system by placing the prosecutor in a position where he could make decisions on how and whether to prosecute a given case based on the merits of the defendant’s ability to make donations to his office’s "worthy causes." Clearly, the "donation" of funds to the charity does not offset the seriousness of the crime which led to the felony charge. It has not been demonstrated that the defendant has "paid his debt to society," nor should he be asked to do so in such a public manner. It appears that the disposition of the proposed donation of funds is, in fact, an attempt to influence the judicial system. Such influences, whether improper or otherwise, cannot be permitted in the judicial system. And it is done in the name of the defendant who has not had his day in court and may not be innocent. It is the defendant’s counsel who determines what is in his client’s interest, not the district attorney’s office. The prosecutor’s interests lie in the pursuit of justice and not in being the arbiter of what is a proper use or not of a defendant’s money. Justice is justice whether the defendant has money or not and it should not be bought in exchange for a dismissal of a felony charge. Justice is surely blind. 2011-11-02-Decision on Motion to Dismiss Indictment, Ontario County Supreme Court (N.Y., 2011), p. 3-4.
In a similar vein, the United States Court of Appeals for the Second Circuit recently observed that judicial approval is necessary to approve a so-called "deferred prosecution agreement." United States v. HSBC Bank USA, No. 13-1598, 758 F.3d 468 (2d Cir. 2014). In that case, billions of dollars were donated by United States Bank to various charities without any judicial oversight. The Court of Appeals noted, without any contrary precedent, "We conclude that an agreement given the name ´diplomatic assurance’ or ´deferred prosecution agreement’ is insufficient, standing alone, to justify the parties’ avoidance of judicial scrutiny." Id. at 478. Acknowledging that the parties were free to "innovate around the deterrence mechanism of a criminal prosecution," the Court of Appeals nonetheless ruled that going forward they would "require judicial approval of any agreement between federal prosecutors and any corporation to defer prosecution of a felony charge of violation of one or more federal criminal statutes." Id. at 482-83.
As a result, any so-called settlement to withhold prosecution of a crime should be deemed invalid unless it is (1) reflected in a Court order, signed by all relevant parties, and (2) comport with constitutional and other legal norms.
The Essential Elements of Agreements
On a basic level, even a pro per defendant or complainant can obtain a settlement agreement to not pursue criminal charges. This is because under California law, both sides can "plea bargain" to reach a fair and equitable resolution. Though there are restrictions. The District Attorney has to consent. If this were not the case, then criminal defendants could simply pay off their victims without the great concern of the criminal justice system. This would throw the balance of power off kilter.
Settlement agreements entered into with the District Attorney contain these key provisions:
- Agreement not to prosecute ("ANP"): This agreement means that the DA will not file any formal charges against the defendant if the defendant abides by certain conditions such as probation, restitution to the victim, community service work, counseling, or other forms of diversion. This is a common form of settlement for cases involving allegations of theft, vandalism, check fraud and drug possession.
- Agreement not to file charges ("AFC"): This is a similar agreement, but it is reserved for those cases where the District Attorney’s office is not on the case at the inception of the investigation. The fact that they were not involved from the inception means that in all likelihood, they do not have the resources or the ability to prosecute the offense. In such cases the defendant makes restitution to the alleged victim and the District Attorney’s office agrees not to file formal charges. This is also a common settlement agreement for misdemeanor cases that involve shoplifting or allegations of probation violations.
- Confidential settlement ("GLOBAL"): This agreement means that all sides agree to keep the terms of the settlement confidential and not to discuss these with anyone else including family members. The purpose of this is to prevent the public from finding out what the terms of the settlement are, and preventing the settlement from being used as leverage against both sides. Typically, both sides will either make it clear to the public the settlement has been reached, or will not make any statement to the press at all. The DA will not divulge the settlement agreement as it would be ethically improper to do so.
Obtaining a settlement agreement to not pursue criminal charges can be a delicate process. There needs to be an initial agreement from the prosecutor and the defense lawyer (or pro per defendant) regarding the terms and conditions of the settlement. Then, the defense lawyer must contact the victim to see if they will agree to the settlement, once the terms are finalized. If they are unwilling or uneasy with the terms of settlement, some prosecutors would even go as far as suggesting they obtain a protective order against the defendant to ensure the victim’s safety, such as in domestic violence cases. Otherwise, if the victim is hostile to the settlement and may not abide by the terms, the case may not be resolved by way of settlement.
Once the terms are agreed between the defense lawyer, defense client, the DA and the victim, the DA will memorialize the settlement in writing for the court to review if the case goes to court. The DA may have to assign a Deputy District Attorney to monitor the case to ensure that both the defendant and the victim are complying with the terms of the settlement. If the terms are met, then the case will eventually be dismissed and the defendant will be free for the remainder of their life.
Benefits and Drawbacks of Agreements to Not Pursue Prosecution
Typical "Pros and Cons" of Settlement Agreements
There are advantages and disadvantages from both a prosecutor’s and defendant’s point of view in entering into settlement agreements to not pursue criminal charges. While the victim may or may not be happy with a settlement agreement, a defendant may feel it is easier to go to court and ask the Judge for an agreement than to take the case to trial and have either the jury or Judge decide an issue when no one really is certain about the outcome.
A prosecutor may want to settle a case for a variety of reasons, including a lack of strong evidence, he knows the police officers involved well and they may have not followed up or presented the evidence in the most effective way, or there may be other considerations that are not obvious to the defendant or the public, such as the prosecutor’s desire to get rid of a case for calendar purposes, or that a key officer in the case is retiring or leaving the department and is no longer available or willing to testify.
A defendant may feel that entering into an agreement is his way of getting the prosecutor to drop the case as a result of the cooperation he continues to provide. A cooperation agreement usually contemplates a specific sentence, and is contingent upon the defendant’s full and complete cooperation. This is a trap for the unwary, because once the cooperation agreement goes into effect, the defendant is under the watchful eye of the government (through the lawyers) and any slip-up, any misstep, could trigger a situation in which the prosecutor is free to exercise his or her discretion not to recommend a sentence reduction or take any other actions which could result in a substantially longer prison term than the defendant otherwise would have received had he not entered into the agreement.
In the end, victims have rights and can take an active role in how long the defendant goes to prison; the prosecutor has the final say, and the defendant only has the right to district him or herself, appearing before the judge and asking the judge to do justice in the particular case. The judge always has the final say.
Ethical and Legal Limitations
Considerations relating to and constraints on the ethical negotiation of a settlement agreement to not pursue criminal charges :
I believe it is important to outline, here, that there are ethical and legal concerns which may rise when a settlement agreement to not pursue criminal charges is negotiated.
Without attempting to overstate the point, or to appear alarmist, my concerns relate to the perception of impropriety.
The Crown is obligated to act in the public interest and nothing should compromise that. That is what the law requires. The risk is one of perception, and if there is even the slightest suggestion that the Crown is unduly influenced into not pursuing criminal charges, then the public will lose confidence in the system.
It is, therefore, incumbent on the lawyer who negotiates the settlement agreement to ensure that the process is structured in a way which allows for full transparency and scrutiny. One approach would be for the Crown to require the consent and approval of the court as a condition of the agreement.
In my personal opinion, the inherent difficulty with the negotiation and acceptance of a settlement agreement to not pursue criminal charges is that the balance of the public interest and the administration of justice is at a real risk of being compromised.
The process by which the agreement is negotiated will make the difference.
Negotiating such an agreement without the knowledge (or acquiescence) of the various attorneys general involved in the prosecution of all the criminal charges which arise in the context of a class action is, in my view, problematic .
Especially where there is a multiplicity of facts – and not just a singular event – which leads to criminal charges which are criminal in nature, yet which are not criminal in nature.
Or: Balancing the Public and Private Interests : Consider that there are two different interests involved, when a settlement agreement to not pursue criminal charges to no criminal charges is being considered.
In its best form, that type of settlement agreement resolves all of the civil disputes which have arisen, both before and after the criminal charges are brought, within the private sector. It is privately and readily resolved.
But, in my opinion, it would run afoul of the public interest to have the Crown involved in the negotiations, or the resolution, of that private settlement agreement.
There, the resolution to all of the criminal charges might be found within the reasons why criminal charges were brought in the first place – difficulty resolving the context of the civil relationship, for example.
Here, however, where the public interest is best advanced by having the lowest possible cost to the taxpayers, where it is appropriate for the public to receive restitution for money that it lost in paying the cost of prosecution, the Crown should not be involved.
Again, the question arises of "who negotiates the settlement of the civil, private matters?"
And, if the resolution to those civil, private matters is the making of restitution to the public, then the public will also have an interest in having those costs paid back to the public purse.
Practical Examples and Applicability
One exemplar of how settlement agreements to not pursue criminal charges operate in the real world is United States v. Meshal, which came about in the context of the War on Terror. In Meshal, which was tried in criminal court, an Israeli American married to a Palestinian began receiving death threats after he published a book calling for nonviolent resistance against Israeli soldiers and his native Palestinian Authority. In response to these repeated threats, he fled to Egypt, where he was arrested by the Egyptian authorities. The U.S. government demanded his extradition, but his wife, with the help of the Department of State and its Embassy in Cairo, was able to get him released from Egyptian custody. In Galbraith v. U.S., the U.S. Ambassador in Cairo, secretary of state Condoleezza Rice and others in the Bush Administration were all named as defendants when the married couple sued the U.S. government for violating international law following the husband’s release from Egyptian custody. The Soraya Galbraith lawsuit was initially reported on in The New York Times, where it was stated that the Society of Professional Journalists was publicizing the case in their efforts to protect the First Amendment of journalism and to stop retaliatory acts against journalists for their reporting. The cases were eventually dismissed in favor of the U.S. government without a trial. Meshal filed an appeal, but the D.C. Circuit upheld the dismissal of the case in 2013. Here, because Galbraith and Meshal were members of the Muslim community and the alleged death threats against them were politically motivated, settlement agreements with the government under the Obama administration were eventually reached. These settlements resulted in Galbraith receiving $50,000 and Meshal receiving $75,000.
The Role of Counsel in Criminal Prosecution Agreements
After the decision to enter into an agreement has been made, experienced legal counsel are extremely valuable in assisting their clients with the negotiation and identification of the relevant terms to be contained in such an agreement. Once such terms have been identified, experienced attorneys help craft the formal stipulation to be entered into with the prosecutor, which assists the attorneys in avoiding any unnecessary pitfalls that can result in the breakdown of negotiations or the disregarding of the contract on a later date. Legal counsel may also be involved in helping to draft an actual complaint that will be filed with the court, in the event one is necessary.
The Future of Agreements in Criminal Prosecutions
As the legal and social landscapes continue to evolve, so too will the use and formulation of settlement agreements designed to not pursue criminal charges. Currently, such agreements are often scrutinized to ensure they comply with public policy, legal standards, and don’t infringe upon the rights of any parties involved. As we look to the future, there are several areas that may impact the way these agreements are structured and implemented.
With the ongoing development of technology, the digitization of processes including contract law could be the next frontier in the law. Blockchain technology has already begun to emerge in the current legal system and could provide a secure and transparent way to store settlement agreements and any subsequent updates or amendments. Furthermore, online dispute resolution and LegalTech platforms could also be used to facilitate the drafting and negotiation of these agreements .
On a more societal level, as our understanding of mental health issues continues to advance, there may be growing recognition of the need to consider these factors when entering into agreements to not pursue criminal charges. This could result in agreements which take into account the individual circumstances of each case and implement more comprehensive support measures for those affected by crime.
Finally, as scrutiny on prosecutors and law enforcement begins to increase, the use of these types of settlement agreements can also be expected to come under increased examination. Prosecutors may need to demonstrate that their decisions to enter into these agreements are in line with the public interest, while law enforcement will have to ensure that they’re not illegally circumventing the normal process or procedures in order to avoid consequences for those involved. In summary, while settlement agreements designed to not pursue criminal charges are certainly prevalent in the current legal system, their future implications are vast and broad-reaching.