Foreword: the state of federal prosecution.

• Author: Horowitz, Michael E.

This issue of the Review assembles a stellar cast of white collar practitioners on the federal stage, to assess the state of the federal criminal justice system. The subjects highlighted are the touchstone issues in the white collar arena that prosecutors, defense lawyers, judges, and legal scholars are actively debating in 2006, and which currently shape the American federal justice system. The editors of The American Criminal Law Review have not only selected the key topical issues, but they have also provided appropriate balance in their presentation, providing an in-depth look at three issues from the prosecution viewpoint and three from the defense perspective. The articles touch upon the following concerns, which can be summarized as follows:

ISSUES ADDRESSED BY PROSECUTORS

1. The Thompson Memorandum

   The focal point for most of the dialogue among federal white collar practitioners for the past three years has been the Justice Department's Principles of Federal Prosecution of Business Organizations, colloquially referred to as the Thompson Memorandum after its author, then-Deputy Attorney General Larry D. Thompson. (1) It is appropriate, therefore, that the longest article in this issue provides an in-depth assessment--and defense--of this document. Two former DOJ officials summarize how the rank and file at DOJ has interpreted this Memorandum, which was issued by the DOJ in January 2003 to provide guidance to prosecutors in deciding whether to criminally charge corporations. (2) Authors Christopher Wray and Rob Hur analyze the Thompson Memorandum's effects on corporate criminal behavior, as well as the government's enforcement practices, and provide a historical backdrop to the events which culminated in the issuance of the Thompson Memorandum. (3) The authors suggest that the Thompson Memorandum has resulted in increased corporate cooperation with the government, more effective cooperation by organizations, and greater voluntary disclosures by companies. (4) They also tackle the sensitive and controversial issue of waiver of the attorney-client privilege, and defend the practice. As the authors note, corporate America and its counsel need to pay close attention to the Thompson Memorandum, because the Justice Department's leadership and its prosecutors are firmly committed to its principles. (5)

   The importance, and controversial nature, of the Thompson Memorandum can be seen from the fact that three other articles in this issue also significantly address the impact of the Memorandum. The discourse over the Memorandum is unlikely to abate anytime soon, particularly since the Justice Department's leadership shows no inclination to reassess the principles outlined in the document, and it has now become the focus of litigation in the high-profile KPMG tax shelter prosecutions in the Southern District of New York. In that case, Judge Lewis A. Kaplan has scheduled an evidentiary hearing in May 2006 to consider, among other things, the defendants' contention that KPMG's decision to limit the payment of attorney's fees to the defendants was forced on it by the provision in the Thompson Memorandum that permits prosecutors to consider a company's decision to pay attorney's fees for its employees in evaluating the nature and extent of the company's cooperation. The defendants argue that in order to curry favor with the government, and to avoid criminal prosecution, (6) the Firm had no choice but to limit counsel fees, which the defendants allege is an improper interference by the government in their constitutional right to obtain counsel of their choice. The decision by Judge Kaplan, in what is believed to be the first serious legal challenge to the Thompson Memorandum, is certain to be scrutinized and to potentially spawn similar litigation in other jurisdictions.

2. Federal Plea Bargains

   Mary Patrice Brown and Stevan E. Bunnell supervise white collar and other federal prosecutions in the U.S. Attorney's Office for the District of Columbia. They are thus well positioned to observe how the vast majority of criminal cases in federal court culminate in plea bargains. Indeed, since the U.S. Sentencing Guidelines went into effect in 1987, the percentage of cases ending in guilty pleas has increased steadily, going from 85.4% in 1991 to a remarkable 95.5% figure by June 2004, when the Supreme Court decided Blakely v. Washington. (7) This rise in guilty pleas can be attributed to many factors, including the increase in federal immigration prosecutions and the concomitant growth in the use of "fast track" programs by DOJ (which are designed to induce guilty pleas by providing additional incentives to defendants who plead early on), and the desire of defendants and willingness of prosecutors to reach plea bargains in order to avoid the even more substantial penalties that could result after a conviction at trial.

   The article by Ms. Brown and Mr. Bunnell helps demystify federal plea bargaining, with a common sense, accessible guide through the process, useful for experienced defense attorneys as well as for junior prosecutors. (8) The article also briefly discusses the impact of United States v. Booker (9) on the plea bargaining process. (10) Interestingly, the initial data collected by the Sentencing Commission following the Booker decision indicates that the guilty plea rate has decreased slightly. Whether that trend continues is an open question, but if it does that may be the most profound effect that...