When the editors of the American Criminal Law Review invited us to choose an essay topic related to the theme of this issue--The State of Federal Prosecution--it did not take us long to focus on federal plea bargaining. During the last three and a half years that we have been supervising white collar and other federal prosecutions in the U.S. Attorney's Office for the District of Columbia (USAO-DC), (1) the vast majority of the hundreds of cases we have overseen ended in a plea agreement. (2) D.C. is hardly an aberration. For years, a plea agreement has been the end game for most federal cases everywhere, and the trend over the last decade has been toward ever increasing percentages of guilty pleas. From 1994 through 2003, the percentage of federal criminal convictions obtained by a guilty plea increased from 91% in 1994 (3) to 96% in 2003. (4) The data is actually a bit misleading: plea bargaining is even more prevalent than the 96% figure suggests since a plea offer and some plea negotiation--albeit ultimately unsuccessful--is also part of just about every federal case that goes to trial. Any way you slice it, plea bargaining is a defining, if not the defining, feature of the present federal criminal justice system.
In judicial and scholarly writing, however, the particular characteristics of federal plea bargaining remain relatively under examined, certainly compared to the enormous amount of scholarly and judicial attention that has been devoted to so many other aspects of federal criminal law. Much of the academic writing on plea bargaining has focused on the general phenomenon of plea bargaining, lumping together local, state, and federal practices from many jurisdictions. Other writers have abstracted the plea bargaining process and analyzed it as a matter of economic theory.
We thought it would be useful to provide a description from the perspective of two experienced federal prosecutors of how federal plea bargaining works in practice in one federal district, the District of Columbia, a district we both know well. In this essay, we will attempt to provide an overview of the legal rules and Department of Justice (DOJ) policies that define what is negotiable and what is required in federal plea agreements. We will describe the key features of the standard federal plea agreement used in the District of Columbia and attempt to explain how rules, policy, local practice, and other cultural considerations relevant to plea bargaining combine to protect the rights of defendants, constrain and channel the exercise of prosecutorial discretion, and promote important societal interests. Finally, we will consider how two recent major developments in federal criminal law--the Supreme Court's decision in United States v. Booker (5) and the Crime Victims' Rights Act of 2004 (6)--have affected the process and substance of federal plea bargaining.
In addition to adding a small bit of concrete to an otherwise fairly abstract area of academic discourse, we also thought it important to provide a description and analysis of federal plea bargaining from a prosecutor's perspective. Many academic and legal commentators seem to regard plea bargaining as a suspect surrender to the realities of limited judicial and prosecutorial resources, an undesirable, if not fundamentally unfair, method of circumventing the preferred way of resolving criminal cases: a jury trial with full legal due process. As career prosecutors who have spent much of our professional lives engaged in the practice of plea bargaining, we, not surprisingly, have a more positive view of the process. Indeed, in our experience federal plea bargaining has many virtues--including the promotion of individual justice, resolution for victims, defendant rehabilitation, horizontal consistency, and general deterrence--that go far beyond the efficiencies of avoiding a full trial for every criminal defendant. It is not our purpose here to engage in a sweeping theoretical or academic debate about the general legitimacy or desirability of plea bargaining. …