Although people can quarrel about the significance or reliability of Independent Counsel Kenneth Starr's investigative findings, no one can deny that his investigation produced new law. We now know that the attorney-client privilege survives the death of the client, that government lawyers may not rely on that privilege to shield communications from their "client" relating to criminal misconduct, and that there is no "protective function privilege" (at least not yet), While bringing some clarity to certain areas, the Independent Counsel's investigation also highlighted the confused state of the law relating to Rule 6(e)'s grand jury secrecy provisions.
There is a degree of irony in calling this a Symposium on "The Changing Role of the Federal Prosecutor." In perhaps its most important aspect, the role of the federal prosecutor has not changed at all – or, at least, we do not want it to change. At its core, the prosecutor's job always has been to mediate between spectacularly broad, legislative pronouncements and the equities of individual cases, giving due attention to the public interest and such technical matters as evidentiary sufficiency. This continues to be true. Indeed, the full title of the Symposium celebrates our hope for continuity in this regard by paying tribute to William M. Tendy.
Much of the literature on federal criminal law bemoans the extent to which Congress has abdicated its legislative responsibilities and left enforcement decisions to prosecutorial discretion. Many critics have sought to compensate for the absence of appropriate legislative specificity by proposing other devices for limiting prosecutorial power, many of which would centralize enforcer authority. Guided by recent work in positive political theory, Professor Daniel Richman argues that such claims of legislative abdication overlook the attention that Congress has given to the organization and activities of the federal enforcement bureaucracy. By showing the extent to which Congress balances concern with enforcer accountability against suspicion of presidential power, the Article cautions against reform proposals that would undermine considered political decisions about the allocation of criminal enforcement authority.
From the very beginning, almost everyone familiar with the sentencing guidelines has recognized that substantial assistance motions pose a severe threat to the goal of horizontal equity in sentencing. The problem stems in part from the fact that any scheme using sentencing leniency to reward cooperation reduces the likelihood that two defendants of similar culpability and criminal history will receive the same sentence if one cooperates and the other doesn't. The damage, however, is potentially magnified by the particular system established by the federal guidelines: The absence of clear guidelines as to how cooperators should be treated makes it likely that the same two defendants will not receive like treatment even if both render the same degree of assistance to the government.
Earlier this year, in Old Chief v. United States, the Supreme Court finally resolved a circuit split on a nagging evidentiary issue: When a defendant charged with being a convicted felon in possession of a firearm offers to satisfy one of the statute's elements by stipulating to the existence of a prior felony conviction, may the government decline the stipulation and prove the existence and the nature of that prior felony? The question of evidence law resolved in Old Chief is not particularly earth-shattering. Indeed, while the Court divided five to four on the issue, neither Justice Souter's opinion for the Court nor Justice O'Connor's dissent ventured beyond a relatively narrow doctrinal analysis. Evidence as to the nature of a defendant's prior felony conviction is indeed relevant, the Court reasoned, but the risk of unfair prejudice it presents far outweighs the probative value, once the defendant's proffered concession is considered as an alternative. Therefore, where a § 922(g)(1) defendant is willing to admit having a prior felony conviction, the government may not prove what that conviction was for. Save for its categorical approach to what generally is a fact-sensitive matter, the decision is of a piece with so many judicial applications of Federal Rule of Evidence 403 (or its state analogues), which, for fear of jury misuse, bar compelling proof on issues not seriously in dispute.
Only the most unreflective prosecutor can avoid feeling ambivalent about cooperation. Without the assistance of defendants willing to trade testimony for the expectation of sentencing discounts, many cases worth prosecuting could not be made. But if a prosecutor maintains any distance from these defendants – as he must – he is bound to be troubled by the magnitude of the discounts that the federal system (like other systems) gives to cooperators, many of whom rank as some of the most odious people he has ever met. The idea of purchasing testimony through sentencing discounts has a long history, of course, as have condemnations of those who "snitch." The discounts, however, have become far more dramatic under the federal sentencing guidelines and the statutory mandatory minimums, whose harsh rigidity can effectively be turned off upon a prosecutor's certification that the defendant has rendered "substantial assistance" within the meaning of § 5K1.1 and 18 U.S.C. § 3553(e). These discounts, whose magnitude is primarily a function of a cooperator's value to the government, present a special challenge to a regime committed to proportionality and to sentences that reflect offense seriousness. Can this disruption can be justified?
The debate about how much protection criminal defendants should have against successive prosecutions has generally been conducted in the context of how to interpret the Double Jeopardy Clause. The doctrinal focus of this debate ignores the fact that for the huge majority of defendants – those who plead guilty instead of standing trial – the Double Jeopardy Clause simply sets a default rule, establishing a minimum level of protection when defendants choose not to bargain about the possibility of future charges. In this Article, Professor Richman examines the world that exists in the shadow of minimalist double jeopardy doctrine, exploring the dynamics of such bargaining and the rules that govern it. Professor Richman begins by showing why, for most defendants, the limited scope of fifth amendment protection against successive prosecution makes little difference. If a guilty plea does not give jeopardy protection against all charges that could possibly be brought, such protection will be afforded by a standard agreement covering the "scope of the indictment." And prosecutors' institutional constraints will generally offer assurances far beyond those terms. For those defendants not satisfied with these protections, however, minimalist double jeopardy doctrine presents a dilemma, since a plea agreement that explicitly protects against unbrought charges can be negotiated only at the risk of exposing crimes or culpability of which the government was not aware. Drawing on recent contract literature, Professor Richman shows how this strategic obstacle will frequently lead to the creation of 'gaps" in the protection offered by specially negotiated plea agreements. The Article then turns to the rules devised by courts to fill these contractual gaps, rules generally based on due process analyses of defendants' expectations or prosecutors' "good faith" obligations. After critiquing these rules, Professor Richmnan inquires into the extent of the government's obligations when it contracts with defendants and proposes a set of default rules that better reflect the realities of the bargaining process.
Indicted on serious narcotics charges, Jose Lopez retained Barry Tarlow to "vigorously defend and try the case." Tarlow was up to the task but warned Lopez that it was "his general policy not to represent clients in negotiations with the government concerning cooperation," and that he did not plan to make any exception for Lopez. As Tarlow later explained, he found such negotiations "personally[,] morally and ethically offensive." This arrangement suited Lopez just fine, until he wavered in his resolution. Encouraged by a co-defendant, worried about his children, and hoping to obtain an early release from prison in order to be with them, Lopez asked his co-defendant's lawyer to initiate discussions with the government. He told his own lawyer nothing about this overture, calculating that Tarlow would serve him well if negotiations broke down and the case ended up going to trial. Sensitive to the constitutional and ethical issues raised by a defendant's efforts to go behind his lawyer's back but relying on a memorandum from Attorney General Thornburgh authorizing pre-indictment contacts with represented defendants, the prosecutor had Lopez brought before a magistrate, who advised Lopez of the dangers of proceeding without the assistance of counsel. Undeterred, Lopez signed a written waiver avowing his belief that Tarlow did not represent his best interests in the matter. He then met with the prosecutor and revealed the names of several alleged drug traffickers. Upon learning of Lopez's meetings with the prosecutor, Tarlow withdrew from the case. Not long thereafter, Lopez, now with new counsel and evidently dissatisfied with the progress of his plea negotiations, moved to dismiss the indictment, alleging that the government had violated his Sixth Amendment right to counsel and DR 7-104(A)(1) of the American Bar Association's Model Code of Professional Responsibility, which bars an attorney from communicating with a represented party without the knowledge and consent of opposing counsel. The district court found no Sixth Amendment violation,6 but it concluded that the "prosecutor's actions constituted an intentional violation of the long-standing ethical prohibition" expressed in DR 7-104 and that dismissal of the indictment was the appropriate sanction for the government's "flagrant and egregious misconduct." Although the Ninth Circuit later vacated the district court's order, it found fault only with that court's choice of remedy and agreed with the court's condemnation of the prosecutor's decision to deal with Lopez behind the back, and without the knowledge, of his lawyer.
As the Supreme Court reconsiders whether Congress can so freely provide for criminal enforcement of agency rules, this Article assesses the critique of administrative crimes though a federal criminal law lens. It explores the extent to which this critique carries over to other instances of mostly well-accepted, delegated federal criminal lawmaking – to courts, states, foreign governments, and international institutions. By considering these other delegations through the lens of the administrative crime critique, the Article destabilizes the critique's doctrinal foundations. It then suggests that if one really cares about liberty – not the abstract "liberty" said to be protected by the separation of powers, but rather the lived liberty gained through careful and accountable criminal lawmaking that is free from the pathologies that have bedeviled federal criminal law for more than a century – administrative crimes are normatively quite attractive.
What role should prosecutors play in promoting citizenship within a liberal democracy? And how can a liberal democracy hold its prosecutors accountable for playing that role? Particularly since I'd like to speak in transnational terms, peeling off a distinctive set of potential "prosecutorial" contributions to democracy – as opposed to those made by other criminal justice institutions – is a challenge. Holding others – not just citizens but other institutions – to account is at the core of what prosecutors do. As gatekeepers to the adjudicatory process, prosecutors shape what charges are brought and against whom, and will (if allowed to) become shapers of citizenship. They also can can promote police compliance with legal and democratic norms. Because the prosecutorial role in case creation is largest when crimes are not open and notorious, prosecutors can also play an outsized role in the bringing of cases that target instances of illegitimate subordination (including domestic violence) and corruption that are antithetical to a liberal democracy. After considering ways in which prosecutors might promote democratic values, I explore (quite tentatively) how prosecutors can be held to account. Working from existing practices and structures, I consider how we might promote their potential contributions through legal and institutional design with respect to reason-giving obligations; geographic scale; insulation from direct political influence, and modulation of their message.
