PREFACE The publication of these Principles of Federal Prosecution is a significant event in the history of federal criminal justice. It provides to federal prosecutors, for the first time in a single authoritative source, a statement of sound prosecutorial policies and practices for particularly important areas of their work. As such, it should promote the reasoned exercise of prosecutorial authority, and contribute to the fair, evenhanded administration of the federal criminal laws. The manner in which federal prosecutors exercise their decisionmaking authority has far-reaching implications, both in terms of justice and effectiveness in law enforcement and in terms of the consequences for individual citizens. A determination to prosecute represents a policy judgment that the fundamental interests of society require the application of the criminal laws to a particular set of circumstances-recognizing both that serious violations of federal law must be prosecuted, and that prosecution entails profound consequences for the accused and the family of the accused whether or not a conviction ultimately results. Other prosecutorial decisions can be equally significant. Decisions, for example, regarding the specific charges to be brought, or concerning plea dispositions, effectively determine the range of sanctions that may be imposed for criminal conduct. Consent to pleas of nolo contendere may affect the success of related civil suits for recovery of damages. Also, the government's contribution during the sentencing process may assist the court in imposing a sentence that fairly accommodates the interests of society with those of convicted individuals. These Principles of Federal Prosecution have been designed to assist in structuring the decision-making process of attorneys for the government. For the most part, they have been cast in general terms with a view to providing guidance rather than to mandating results. The intent is to assure regularity without regimentation, to prevent unwarranted disparity without sacrificing flexibility. The availability of this statement of Principles to federal law enforcement officials and to the public should serve two important purposes: ensuring the fair and effective exercise of prosecutorial responsibility by attorneys for the government, and promoting confidence on the part of the public and individual defendants that i important prosecutorial decisions will be made rationally and objectively on the merits of each case. The Principles will provide convenient reference points for the process of making prosecutorial decisions; they will facilitate the task of training new attorneys in the proper discharge of their duties; they will contribute to more effective management of the government's limited prosecutorial resources by promoting greater consistency among the prosecutorial activities of the 95 United States Attorneys' offices and between their activities and the Department's law enforcement priorities; they will make possible better coordination of investigative and prosecutorial activity by enhancing the understanding of investigating departments and agencies of the considerations underlying prosecutorial decisions by the Department; and they will inform the public of the careful process by which prosecutorial decisions are made. Important though these Principles are to the proper operation of our federal prosecutorial system, the success of that system must rely ultimately on the character, integrity, sensitivity, and competence of those men and women who are selected to represent the public interest in the federal criminal justice process. It is with their help that these principles have been prepared, and it is with their efforts that the purposes of these principles will be achieved. Bazin R. Civilelle. Вз Benjamin R. Civiletti July 28, 1980 5. Non-Criminal Alternatives to Prosecution. 6. Impermissible Considerations . . 7. Records of Prosecutions Declined. PART C. SELECTING CHARGES 1. Charging Most Serious Offense 2. Additional Charges . . . 3. Pre-Charge Plea Agreements PART D. ENTERING INTO PLEA AGREEMENTS.. 1. Plea Agreements Generally 2. Considerations to be Weighed . 3. Selecting Plea Agreement Charges 4. Plea Agreements when Defendant Denies Guilt 5 5 7 11 PAGE PART E. OPPOSING OFFERS TO PLEAD NOLO CONTENDERE.... 1. Opposition Except in Unusual Circumstances. 3. Argument in Opposition. PART F. ENTERING INTO NON-PROSECUTION COOPERATION 1. Non-Prosecution Agreements Generally 2. Considerations to be Weighed 3. Limiting Scope of Commitment 4. Agreements Requiring Assistant Attorney 5. Records of Non-Prosecution Agreements 33 33 34 35 46 36 36 39 43 44 PART G. PARTICIPATING IN SENTENCING.... 1. Participation Generally PART A. GENERAL PROVISIONS 1. The principles of federal prosecution set forth herein are intended to promote the reasoned exercise of prosecutorial discretion by attorneys for the government with respect to: (d) opposing offers to plead nolo contendere; (e) (f) entering into non-prosecution agreements in return for cooperation; and participating in sentencing. Comment Under the federal criminal justice system, the prosecutor has wide latitude in determining when, whom, how, and even whether to prosecute for apparent violations of federal criminal law. The prosecutor's broad discretion in such areas as initiating or foregoing prosecutions, selecting or recommending specific charges, and terminating prosecutions by accepting guilty pleas has been recognized on numerous occasions by the courts. See, e.g., Oyler v. Boles, 368 U.S. 448 (1962); Newman v. United States, 382 F.2d 479 (D.C. Cir. 1967); Powell v. Katzenbach, 359 F.2d 234 (D.C. Cir. 1965), cert. denied, 384 U.S. 906 (1966). This discretion exists by virtue of his status as a member of the Executive Branch, which is charged under the Constitution with ensuring that the laws of the United States be "faithfully executed." U.S. CONST. art. II, § 3. See Nader v. Saxbe, 497 F.2d 676, 679 n. 18 (D.C. Cir. 1974). Since federal prosecutors have great latitude in making crucial decisions concerning enforcement of a nationwide system of criminal justice, it is desirable, in the interest of the fair and effective administration of justice in the federal system, that all federal prosecutors be guided by a general statement of principles that summarizes appropriate considerations to be weighed, and desirable practices to be followed, in discharging their prosecutorial responsibilities. Although these principles deal with the specific situations |