Negotiating justice: prosecutorial perspectives on federal plea bargaining in the District of Columbia.

• Author: Brown, Mary Patrice

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. What we attempt to do in this essay is more modest and more descriptive: to examine the way plea bargaining works in practice in one federal district. Nonetheless, we believe that a close look at the way federal plea bargaining works in D.C. should provide some reassurance to critics of plea bargaining that federal plea bargaining can be done in a way that, on balance, affirms, rather than subverts, the fundamental values of our criminal system. (7)

OVERVIEW OF THE KEY ELEMENTS OF FEDERAL PLEA BARGAINING IN THE DISTRICT OF COLUMBIA

Plea bargaining typically begins informally. (8) Counsel for a grand jury target or an indicted defendant may ask the line AUSA for a plea offer, or the line AUSA may be the one who initiates the dialogue by sounding out defense counsel about the likelihood of reaching an agreement to a particular type of disposition. As a general matter it makes sense for a defendant who is inclined to plead guilty to do so as early as possible, since the government's plea offer rarely improves with time. The USAO-DC, like any prosecutor's office, has a strong institutional interest in encouraging early pleas. On the other hand, it requires a substantial amount of work, especially in a complex case, for the AUSA to prepare the formal written plea agreement, statement of offense, and (for pre-indictment pleas) the Information, all of which must be approved by a supervisor in the USAO. Consequently, the AUSA typically will want to be reassured by defense counsel that the defendant genuinely is interested in pleading guilty and that there is at least a reasonable chance of reaching an agreement to terms that are acceptable to the government before she will invest the time to prepare the formal paperwork. If the prosecutor and the defense counsel have negotiated plea agreements with each other in the past, expect to do so in the future, and, from their past dealings, respect and trust each other, (9) these preliminary, informal discussions are likely to be candid and efficient and may quickly lead to an informal proposed agreement--subject to approval by the defendant and the AUSA's supervisor.

Pre-indictment plea discussions in a white collar case almost always involve some informal discovery. Indeed, AUSAs in the USAO-DC routinely make pre-indictment "reverse proffers" (10) for targets and their counsel in which they may provide a detailed summary of the documentary and testimonial evidence against the target. AUSAs also are required to consult with the case agent on the investigation and, where applicable, the victim (as we discuss more fully below) prior to making a final plea offer. AUSAs do not always agree with the views of the law enforcement agent or the victim, but by consulting with them, they may learn relevant facts that ultimately alter the terms or details of the plea. Moreover, an AUSA who knows that he or she will have to explain the proposed plea agreement to the case agent or the victim is less likely to undersell the case with an overly lenient plea offer.

Once the line AUSA has a proposed plea in mind, he or she generally will consult with his or her first line supervisor. If the supervisor approves the proposed deal, the next step for the prosecutor is to prepare a formal, written plea offer that sets out the terms of the proposed plea agreement in detail. The USAO-DC requires a written agreement, signed by a supervisor, in all federal cases. In most cases, the plea agreement is drafted in the form of a letter to defense counsel, which when signed by the defendant and defense counsel becomes the plea agreement. Over the years, written plea agreements have grown longer and more complex as successive generations of prosecutors, defense counsel, and judges (including those on the D.C. Circuit) have noticed or exploited ambiguities in the standard agreement, which over time has led to more detailed and carefully crafted explanations of the parties' rights and obligations. As a result, federal plea agreements in D.C. now often run ten single-spaced pages or more, depending on the number of applicable standard provisions and the phrasing options chosen for them. (11)

1. Charge Bargaining

   There are several key issues that arise in the negotiation of most federal plea agreements in District of Columbia. Like most plea agreements in federal or state courts, the standard D.C. federal plea agreement starts by identifying the charges to which the defendant will plead guilty and the charges or potential charges that the government in exchange agrees not to prosecute. (12) A "charge bargain" of this sort lies at the core of most plea agreements. At first blush, the charge bargain may appear to be the most important part of the agreement. It defines the counts of conviction and establishes the statutory maximum (and, in some instances, the mandatory minimum) penalties that will apply at sentencing. In the pre-Booker world of mandatory Federal Sentencing Guidelines, however, the charge bargain often was more about optics than actual punishment. Take for example, a defendant who, along with an accomplice, used three false invoices to embezzle $900,000 from his employer, and now has been indicted in federal court on three twenty-year mail fraud counts and a five-year conspiracy count. If the defendant agrees to plead guilty to the conspiracy count in exchange for the government dismissing the three mail fraud counts, it may appear that he has gotten a very good deal. He has traded the risk of conviction at trial on four felonies that carry an aggregate statutory exposure of sixty-five years, for a guilty plea to a single felony with a maximum sentence of only five years.

   In fact, unless he has an extensive criminal history, the charge bargain is not likely to have any impact at all on the determination of his sentence, at least not under the Sentencing Guidelines. Absent unusual...