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Federal prosecutors have broad discretion and follow specific guidelines in deciding whether a criminal case is worth prosecuting or not.
FEDERAL PROSECUTION GUIDELINES: TO PROSECUTE OR NOT?
Not every federal crime gets prosecuted. How do federal prosecutors approach the decision on whether or not to bring criminal charges?
It turns out the Department of Justice (DOJ) publishes written guidelines prosecutors should follow: Principles of Federal Prosecution, Justice Manual Title 9 (Criminal). Click here for this DOJ resource, discussed in this blog post: USAM 9-27.000
INTRODUCTION
Federal crimes are offenses covered by the United States Code — the laws passed by the US Congress — or offenses taking place across multiple states. State crimes are offenses covered by the criminal codes of each individual state.
Many crimes are subject to prosecution at both the state and federal levels.
*Pro-Tip: Remember to consult criminal defense counsel for legal advice regarding any court case.
Prison Professors, an Earning Freedom company, regularly helps clients locate and vet experienced criminal counsel. We also assist clients, in consultation with counsel, with sentencing mitigation strategies and other aspects of their journey through the criminal justice system.
FEDERAL CRIMES
In general, a federal crime violates United States legal codes or occurs across multiple states, such as commercial fraud, wire fraud, and drug trafficking. Criminal conduct that takes place across state lines is also subject to the law enforcement power of each individual state where the conduct occurs. However, the federal government will generally take the lead in criminal investigations and prosecutions that involve offenses across state lines.
Some of the most common examples of crimes that the federal government will investigate and pursue include:
- Obstruction of justice
- Immigration offenses
- Money laundering
- Racketeering (RICO)
- Interstate drug possession
- Drug trafficking or manufacturing
- Drug conspiracy
- Internet crimes
- Federal weapons violations
- Mail fraud
- White-collar crimes (such as fraud and conspiracy).
Federal crimes often carry longer and harsher sentences than state crimes. Sentences in a federal case can include many years in prison, as well as significant monetary penalties and fines.
The federal government utilizes many individual agencies to investigate federal crimes. Among the top federal criminal law enforcement agencies are:
- Federal Bureau of Investigation (FBI)
- Criminal Division of the IRS (CID)
- Alcohol, Tobacco, Firearms (ATF)
- United States Postal Service Postal Inspector
- Drug Enforcement Agency (DEA)
- Department of Homeland Security
- United States Marshals Service
- United States Secret Service
- Office of the Inspector General (OIG)
Again, federal agencies have jurisdiction and have the right to take the lead on investigating federal crimes that occur in any US city, county, or state, working together with local and state law enforcement. Federal agencies and local and state law enforcement often form task forces to investigate major federal crimes.
The grand jury is one of the tools federal prosecutors use to evaluate allegations of criminal conduct. A grand jury consists of 16 to 23 people convened to determine if the federal government has enough evidence to bring criminal charges. The grand jury does not determine guilt or innocence, only whether there is probable cause to believe that the person accused committed a crime.
Click here for additional information on the grand jury process: Grand Jury Subpoenas.
Once a grand jury determines that there is enough evidence to bring charges, a federal investigation can quickly become a federal prosecution.
Here is more detailed information on how a criminal case begins: How a Criminal Case Begins: 10 Things To Know.
NOT EVERY FEDERAL CRIME GETS PROSECUTED
Not all federal crimes are prosecuted. The prosecution of federal crimes is a complex matter tied to federal law enforcement priorities, leadership at the DOJ, and federal law enforcement resource allocation. As such, the number of federal criminal prosecutions changes over time.
In 2017, for example, Pew Research Center published a study finding that federal criminal prosecutions were at their lowest levels in two decades. At the time, Pew noted that several factors had played a role in declining federal prosecutions. For example, in 2013, Attorney General Eric Holder directed federal prosecutors to focus on cases involving substantial federal interests. In Holder’s view, prosecutors “cannot and should not bring every case or charge every defendant.” Holder’s directive resulted in fewer federal criminal prosecutions across the board. The next Attorney General, Jeff Sessions, set different priorities for federal prosecutions, which affected the numbers and types of cases on which prosecutors focused.
In any event, federal prosecutors should take heed of the DOJ’s written policies and practices when deciding whether to prosecute a federal crime. The DOJ publishes these guidelines, which are available online. They are known as the Principles of Federal Prosecution and are in the DOJ’s Justice Manual Title 9 (available here: USAM 9-27.000).
The Justice Manual Title 9 states that the decision to prosecute a federal crime is a “policy judgment that the fundamental interests of society require the application of federal criminal law to a particular set of circumstances.” These guidelines reflect the DOJ’s responsibility to prosecute serious violations of federal law. The guidelines also recognize the immense consequences for the person accused, the victims of the crime, and their families.
The many competing interests at stake require careful balancing. Prosecutors must balance the seriousness of the alleged criminal conduct, the harm that failure to prosecute could inflict, the message that failure to prosecute might send, as well as the personal consequences for all parties involved, including the victim’s and the accused’s families.
Put a different way, in each case federal prosecutors must try to balance significant issues such as:
- Proper punishment.
- Deterrence of further criminal conduct.
- Protecting the public.
- Rehabilitation of offenders.
- Protecting individuals’ rights.
Moreover, the policies and practices guiding federal prosecutors in determining whether to bring a case must promote the fair and even-handed administration of the federal criminal laws.
Justice Manual Title 9 advises federal prosecutors to use their broad discretion at every significant stage of the prosecutorial journey, and specifically with respect to:
- Initiating and declining prosecution.
- Selecting charges.
- Entering into plea agreements.
- Opposing offers to plead nolo contendere.
- Entering into non-prosecution agreements in return for cooperation.
- Participating in sentencing.
This list recognizes how other decisions prosecutors make throughout a federal criminal case are incredibly consequential, beyond the initial decision to prosecute. Undoubtedly, the specific charges, the approach to plea bargaining, or the government’s position at sentencing are among the most pivotal parts of a federal criminal case.
Even though many legal observers complain about the wide latitude afforded to federal prosecutors throughout the criminal justice process, courts have reviewed these complaints and affirmed prosecutors’ broad discretion. The Justice Manual Title 9 acknowledges the impact of prosecutors’ broad discretion:
“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, 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.”
Significantly, the Justice Manual TItle 9 also notes that federal prosecution guidelines are purely a matter of internal DOJ policy. They “are provided to federal prosecutors as guidance in performing their duties. Neither this statement of principles nor any internal procedures adopted by individual offices create any rights or benefits (emphasis added).“
Therefore, criminal defendants cannot use the Principles of Federal Prosecutions to challenge a prosecutor’s decision in their case. Knowing the guidelines is helpful to everyone involved in a federal criminal case, but it does not in any way create a right to ask the court to intervene.
As the DOJ states, “explicitly setting this forth is intended to foreclose efforts to litigate the validity of prosecutorial actions alleged to be at variance with these principles or not in compliance with internal office procedures. In the event that an attempt is made to litigate any aspect of these principles, to litigate any internal office procedures, or to litigate the applicability of such principles or procedures to a particular case, the attorney for the government should oppose the attempt.”
*Pro-Tip: Remember to consult criminal defense counsel for legal advice regarding any court case. Experienced criminal counsel know how to use the prosecutorial guidelines in handling a criminal case.
GROUNDS FOR DECLINING PROSECUTIONS
According to the Justice Manual Title 9, when federal prosecutors conclude that there is probable cause to believe that a person has committed a federal crime, next they should consider whether to:
- Request or conduct a further investigation.
- Commence or recommend prosecution.
- Decline prosecution and refer the matter for prosecutorial consideration in another jurisdiction.
- Decline prosecution and commence or recommend pretrial diversion or other non-criminal disposition; or
- Decline prosecution without taking other action.
Specifically, prosecutors should commence or recommend federal prosecution if they believe that the conduct constitutes a federal offense and that the admissible evidence will probably be sufficient to obtain and sustain a conviction. Prosecutors should not bring a case forward unless they believe in good faith that they have enough evidence to win the case.
On the other hand, prosecutors should not commence or recommend federal prosecution if they believe that:
- the prosecution would serve no substantial federal interest;
- the person is subject to effective prosecution in another jurisdiction; or
- there are adequate non-criminal alternatives to prosecution.
Whether or not to prosecute a case, and how to balance all the factors that go into that decision, is solely within the prosecutor’s broad discretion and is not subject to court challenge by the defense. Even so, understanding the process can help people make better informed decisions during the journey through the criminal justice system.
CONCLUSION
As noted above, not every federal crime gets prosecuted. Law enforcement priorities, resource allocation, and leadership at the DOJ are all factors that affect the number and types of cases prosecutors focus on at any given point. The DOJ publishes specific, written guidelines to inform prosecutors’ decisions on whether or not to prosecute a case.
Specifically, prosecutors should commence or recommend federal prosecution if they believe that the conduct constitutes a federal offense and that the admissible evidence will probably be sufficient to obtain and sustain a conviction. Prosecutors should not bring a case forward unless they believe in good faith that they have enough evidence to win the case.
On the other hand, prosecutors can decline federal prosecution when they believe that: a) prosecution would serve no substantial federal interest, b) the person is subject to effective prosecution in another jurisdiction, or c) there are adequate non-criminal alternatives to prosecution.
The fact that the DOJ publishes prosecutorial guidelines does not give a criminal defendant any right to challenge decisions that are within a prosecutor’s broad discretion.
*Pro-Tip: Remember to consult criminal defense counsel for legal advice regarding any court case.
Prison Professors, an Earning Freedom company, regularly helps clients locate and vet experienced criminal counsel. We also assist clients with sentencing mitigation strategies and other aspects of the journey through the criminal justice system.
