Federal plea bargains Prosecutors still have plenty of discretion

By Matthew J. Jacobs and Lisa Tenorio-Kutzkey

Jacobs & Tenorio-Kutzkey

We are two of the least likely people in the world to defend the idea that prosecutors should have less discretion. As Assistant U.S. Attorneys, we would rather keep in our own hands the power and authority to negotiate plea agreements with defendants without approval from higher-ups.

Less paperwork. Less bureaucracy. Less interference from supervisors. Also, most prosecutors believe — with some justification — that they know their own case better than anyone else, including what constitutes a reasonable, fair, agreed-upon resolution.

One might think that we would be joining in the chorus of criticism of the Justice Department's policy restricting the discretion of prosecutors to enter into plea bargains. But we're not.

The criticism is overblown be-cause the "new" policy is not really new, but rather the reaffirmation of an idea that has been part of the U.S. Attorney's Manual and other Justice Department directives to prosecutors since the 1980s. The latest memo from the Justice Department dated Sept. 22, 2003, directs federal prosecutors to "charge and pursue the most serious, readily provable offense or offenses that are supported by the facts of the case . . ."

In other words, as a general matter, a prosecutor cannot charge a defendant with violations of multiple statutes and then, in the context of plea bargaining, agree to dismiss the more serious charges in return for a guilty plea to a lesser charge.

This has been the policy of the Department of Justice for approximately 15 years. Similar language contained in the Sept. 22 memo was first promulgated in a memo by then- Attorney General Richard Thornburgh to Assistant U.S. Attorneys in 1989. It has been in the U.S. Attorney's Manual in one form or another ever since.

In practical terms, the Sept. 22 memo will not affect the majority of cases. The memo includes several broad exceptions to the rule that the most serious charge must be maintained, including when:

• The guidelines are unaffected by the dismissal of the more serious charge;
  
  
• The defendant cooperates by providing "substantial assistance" to the government as defined in §5K1.1 of the Federal Sentencing Guidelines;
  
  
• The defendant falls within a "fast-track program" — in San Francisco, we have fast-track programs for certain immigration offenses;
  
  
• The prosecutor has re-evaluated the evidence and believes that the most readily provable offense is no longer so readily provable; and
  
  
• "Other exceptional circumstances" including consideration of the money and time it would take to try a particular case.

These exceptions permit a prosecutor and U.S. Attorney's Office the flexibility to make a conscientious and reasonable decision to settle a case before trial by dismissing more serious counts where appropriate. In fact, the last catch-all exception for exceptional circumstances is a direct rebuttal to the argument made by many critics that the "new" DOJ policy will overburden and hamper the court system. The policy has a built-in safety valve that permits decision-making on the basis of government resources. Currently, more than 95 percent of criminal cases are resolved before trial. We do not expect significant changes in that statistic as a result of this memo.

There is another practical reason why the DOJ policy will not bring about radical changes. In many cases, the charge to which a defendant pleads guilty is one of the least important factors in determining a defendant's sentence. The Sentencing Guidelines generally require that the probation officer and judge determine a defendant's Guideline calculation, including all "relevant conduct" by the defendant. Relevant conduct includes acts by the defendant whether or not she was convicted of those acts; usually it does not even matter whether the "relevant conduct" was charged in the indictment. Essentially, the guidelines require the court to look beyond the actual charge of conviction to the underlying relevant conduct and sentence according to the conduct.

Beyond the practical, there is a philosophical dimension to the argument, and this is where DOJ's policy comes into focus. There are two guiding principals behind the Justice Department's policy: (1) to ensure honesty and transparency in sentencing, and (2) to cut down on discrepancies in sentencing for similar offenses committed by similar offenders. In theory and practice, it is fundamentally unfair for a defendant's fate to be determined based on which Assistant U.S. Attorney happens to have been assigned the case. It is similarly unfair for a defendant's sentence to depend on whether the wheel results in the assignment of a judge who rigorously applies the guidelines or, conversely, who reaches out for what the judge believes is a more just result by creative use of the guidelines.

Of course, criminal defense attorneys only like the idea of prosecutorial discretion in direct proportion to the sympathetic qualities of the prosecutor assigned to the case they are defending. One favorable byproduct of DOJ's policy for defendants is the express prohibition against charging additional or more serious counts for the purpose of exacting a plea. Ideally, prosecutors will be cautious in initial charging decisions because they know it will be difficult to jettison those charges later on.

For several years, the U.S. Attorney's Office in San Francisco has had a policy of standardized plea agreements with less discretion by individual prosecutors and the re-quirement of supervisory approval for plea agreements, while prosecutors have been encouraged to do more trials. In other words, we have almost exactly the same policy in the Northern District of California that the Justice Department is now reaffirming nationwide. The criminal defense bar in San Francisco has at various times protested the policy with vim and vigor, but there is no question that the changes helped turn our office into what is now re-garded as one of the premier federal prosecutors' offices in the country and, more importantly, led to more uniform treatment of defendants.

Individual prosecutors may not like the idea of diminished power any more than defense lawyers. But there are many institutional benefits, including at least the promise of more across-the-board fairness for defendants.

• Matthew J. Jacobs is an Assistant U.S. Attorney and Lisa Tenorio-Kutzkey is a Special Assistant U.S. Attorney. Both work in the securities fraud unit of the San Francisco office.