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 Alternatives To Prosecution 

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Michael Santos

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NON-CRIMINAL ALTERNATIVES TO FEDERAL PROSECUTION

Federal prosecutors can consider whether alternatives to a criminal prosecution can adequately serve their criminal justice goals. A full-blown federal criminal case is not the only answer to every violation of federal law.

INTRODUCTION

In the federal criminal justice system, prosecutors have broad discretion regarding just about every aspect of criminal prosecution. Prosecutorial discretion includes the very decision of whether to initiate a federal prosecution at all.

(Click here for a related blog post: To Prosecute or Not?)

In deciding whether to bring criminal charges, prosecutors can consider whether adequate non-criminal alternatives to prosecution exist in any given case. When such alternatives exist, prosecutors have the discretion to refer the matter to other authorities and decline criminal prosecution.

NON-CRIMINAL ALTERNATIVES

Section 9-27.250 of the Principles of Federal Prosecution — published in the US. Department of Justice (DOJ) Manual — discusses possible non-criminal alternatives to prosecution. This Section describes factors prosecutors can take into account to decide whether to bring federal criminal charges or not. For example, prosecutors can consider the availability of federal and state administrative remedies that may apply to the circumstances of a case, such as penalties or sanctions. 

Thus, in a criminal tax fraud or tax evasion investigation, federal prosecutors might consider whether civil tax proceedings would adequately address the government’s law enforcement interests. In other types of cases, civil lawsuits are possible based on fraud, securities violations, or antitrust damages. And in the case of licensed professionals, prosecutors can consider whether disbarment, the loss of professional licenses, or other civil fines and penalties are adequate deterrence and punishment for the matter. 

Suppose federal prosecutors conclude that civil actions or administrative sanctions will occur in a potential criminal case and that those sanctions adequately serve their law enforcement goals. In that case, they can use their broad discretion to decline to go forward in the criminal case. 

FACTORS PROSECUTORS CAN CONSIDER 

According to the DOJ, in determining whether there is an adequate, non-criminal alternative to prosecution, prosecutors should consider all relevant factors, including:

  • The sanctions or other measures available under the alternative means of disposition;
  • The likelihood that there will be an effective sanction;
  • The effect of non-criminal disposition on federal law enforcement interests; and
  • The interests of any victims.

Click here for access to the full text: 

Principles of Federal Prosecution and Non-Criminal Alternatives to Prosecution

The DOJ’s official commentary to Section 9-27.250 discusses the factors prosecutors consider, noting that federal prosecution is not the only answer to every federal law violation. 

In fact, federal and state laws provide civil and administrative remedies for many types of conduct that are also subject to criminal sanctions, like the criminal tax example above. Other forms of civil legal sanctions that overlap with criminal sanctions can include:

  • civil actions under the False Claims Act;
  • statutory causes of action for false or fraudulent claims; 
  • civil actions under the securities, customs, antitrust, or other regulatory laws; 
  • administrative suspension and debarment or exclusion proceedings;
  • civil judicial and administrative forfeiture; and 
  • complaints to licensing authorities or professional organizations such as bar associations. 

This list is not exhaustive. Another potential alternative to prosecution in some cases can be a pretrial diversion. (Justice Manual Section 9-27.250) Pretrial diversion is not widely available in the federal system, but state and local authorities frequently use this non-criminal alternative, especially for nonviolent first-time offenses.

The DOJ Justice Manual Section 9-27.250 adds explicitly that, given all of these many alternatives, federal prosecutors should be familiar with non-criminal alternatives to prosecution and consider whether they might be adequate alternatives. 

Of course, in many criminal cases, civil enforcement happens in addition to criminal prosecution. For example, targets in securities cases often face criminal charges, civil enforcement actions, and licensing consequences.

Deciding to decline criminal prosecution in favor of a non-criminal alternative requires a delicate balancing act in which prosecutors weigh competing interests. Under the same circumstances, two different prosecutors could reach different conclusions.

Moreover, the victim’s interests are one of the most significant factors that can tilt the balance. 

The Justice Manual official comments to Section 9-27.250 remind prosecutors to consider the interests of any victims and note whether any fines collected under an alternative to prosecution agreement will go into the Crime Victims Fund, as opposed to the General Treasury.

The DOJ comments continue to discuss the weight given to the interests of the victims and state that: “In evaluating victim interests and determining whether to pursue a non-criminal disposition, the prosecutor should be available to confer with the victim in furtherance of the Crime Victims’ Rights Act and in accordance with the Attorney General Guidelines for Victim and Witness Assistance.”

As it should, the DOJ takes its obligations to victims very seriously, as required by the Crime Victims’ Rights Act, 18 USC § 3771, the Victims’ Rights and Restitution Act, 34 USC § 20141, and the Attorney General Guidelines for Victim and Witness Assistance. 

For more, see:

Principles of Federal Prosecution and Non-Criminal Alternatives to Prosecution.

Federal prosecutors can decline criminal prosecution and refer the matter to other enforcement authorities. It bears repeating that a full-blown federal prosecution is not the only answer to every federal law violation. 

*Pro-Tip: Remember to consult legal defense counsel regarding any court case.

Note: Prosecutors cannot transfer materials gathered for a grand jury when referring a matter to others for non-criminal disposition.

Things Prosecutors Should Never Consider

The Justice Manual Section-27.260 explicitly mentions issues prosecutors should never include in their decision on possible non-criminal dispositions. These things are “improper influences:”

  • race;
  • religion;
  • gender;
  • ethnicity;
  • national origin;
  • sexual orientation;
  • political association;
  • political activities;
  • political beliefs;
  • the prosecutor’s personal feelings about the person;
  • the prosecutor’s personal feelings about the victim;
  • the prosecutor’s personal feelings about the person’s associates;
  • what might happen to the prosecutor personally or professionally if they decide to prosecute or refrain from doing so.

CONCLUSION

In deciding whether to bring charges, federal prosecutors can consider whether adequate non-criminal alternatives to prosecution exist in any given case. They can refer the matter to other authorities and decline federal criminal prosecution when there are such alternatives.

A federal prosecutor’s primary duty is to seek justice within the bounds of the law, not merely to convict. The American Bar Association expects prosecutors to act with balanced judgment. Prosecutors can meet their goals when they pursue appropriate criminal charges of appropriate severity. 

Significantly, prosecutors can also meet their goals when they exercise discretion not to pursue criminal charges in appropriate circumstances and use adequate non-criminal alternatives. 

Prison Professors, an Earning Freedom company, works alongside (not in place of) civil and criminal defense counsel to help clients proactively navigate through investigations and prosecutions. Our team also helps clients prepare mitigation and compliance strategies.

If you have any questions or are uncertain about any of the issues discussed in this post, schedule a call with our risk mitigation team to receive additional guidance.

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