“Pay to Play” Deferred Prosecutions

A district attorney generally has discretion in structuring his or her approach to deferred prosecutions. The DA could have a broad program, allowing deferrals for all defendants who might be eligible as a matter of law. Or there could be no program at all (aside from the handful of diversions that are mandatory in certain circumstances). Regardless, whatever program the State has must not discriminate against defendants based on an improper classification. Characteristics like religion and race obviously are not permissible bases on which to condition access to a deferral program. A more difficult question, though, is what role a defendant’s financial situation may play in the State’s decision to defer prosecution. The issue recently made headlines in North Carolina, described here as a “pay to play” deferral program. In short, a DA’s office had a policy of limiting access to its deferred prosecution program for property crimes to those defendants who could pay their restitution down to $1,000 or less. A particular defendant, charged with embezzlement, owed about $1,800 in restitution. When he was unable to pay the amount down below the $1,000 threshold, the State declined to let him participate in the program. That denial prompted the defendant to make a motion to dismiss based on selective prosecution. The particular case was eventually resolved in other ways—a group of local residents helped the defendant pay the money back, and the newly appointed district attorney changed the policy. But the situation raised issues that will surely arise again, and so [...]