Negotiating Justice: Prosecutorial Perspectives on Federal Plea Bargaining in the District of Columbia

By Brown, Mary Patrice; Bunnell, Stevan E. | American Criminal Law Review, Summer 2006 | Go to article overview

Negotiating Justice: Prosecutorial Perspectives on Federal Plea Bargaining in the District of Columbia


Brown, Mary Patrice, Bunnell, Stevan E., American Criminal Law Review


INTRODUCTION

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. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • A full archive of books and articles related to this one
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Negotiating Justice: Prosecutorial Perspectives on Federal Plea Bargaining in the District of Columbia
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

    Already a member? Log in now.