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Plea Bargaining in Federal Courts

The Federal Rules of Criminal Procedure (F.R.Crim.P), and in specific, Rule 11(e), recognizes and codifies the concept of plea agreements. However, because of United States Sentencing Guideline (USSG) provisions, the leeway permitted is very restrictive. Moreover, many federal offenses carry mandatory sentences, with no room for plea bargaining. Finally, statutes codifying many federal offenses expressly prohibit the application of plea arrangements. (See Sentencing)

Federal criminal practice is governed by Title 18 of the U.S. Code, Part II (Criminal Procedure). Chapter 221 of Part II addresses arraignments, pleas, and trial. The U.S. Attorney's Manual (USAM) contains several provisions addressing the negotiation of plea agreements.

For example, Chapter 9-16.300 (Plea Agreements) states that plea agreements should "honestly reflect the totality and seriousness of the defendant's conduct," and any departure must be consistent with Sentencing Guideline provisions. The Justice Department's official policy is to stipulate only to those facts that accurately represent the defendant's conduct. Plea agreements require the approval of the assistant attorney general if counts are being dismissed, if defendant companies are being promised no further prosecution, or if particular sentences are being recommended (USAM 7-5.611).

Prohibitions and Restrictions

Aside from legal considerations as to the knowing or voluntary nature of a plea, there are other restrictions or prohibitions on the opportunity to plea bargain. In federal practice, U.S. attorneys may not make plea agreements which prejudice civil or tax liability without the express agreement of all affected divisions or agencies (USAM 9-27.630). Moreover, no attorney for the government may seek out, or threaten to seek, the death penalty solely for the purpose of obtaining a more desirable negotiating position for a plea arrangement (USAM 9-10.100).

Attorneys are also instructed not to consent to "Alford pleas" where a defendant will maintain his or her innocence while pleading guilty to a charge. However, federal government attorneys can accept such pleas in the most unusual circumstances and only with the recommendation of assistant attorneys general in the subject matter at issue.

In any case where a defendant has tendered a plea of guilty but denies that he or she committed the offense, the attorney for the government should make an offer of proof of all facts known to the government to support the conclusion that the defendant is in fact guilty (USAM 9-16.015). Similarly, U.S. attorneys are instructed to require an explicit stipulation of all facts of a defendant's fraud against the United States (tax fraud, Medicare/Medicaid fraud, etc.) when agreeing to plea bargain (USAM 9-16.040).

Additional Considerations

The process of negotiating plea bargains in federal court, and the restrictions that apply, can be similar to the negotiation process in state court. However, it's important to note that your state's attorney general may have additional or different restrictions on state prosecutors negotiating plea deals in state court. This could have an impact on your case, depending on the charges you're facing and where you're being prosecuted.

Next Steps: Have an Attorney Evaluate Your Case for Free

Successful plea bargaining, especially in the federal court system, requires special skills and experience. A criminal defense attorney who practices in your jurisdiction is your best bet to getting a fair deal. If you or someone you love is awaiting trial in federal court, contact a criminal defense lawyer for a free case review.

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