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Vanderbilt Law Review

Graham Hughes

First Page

1

Abstract

In criminal prosecutions, both state and federal, closely negotiated agreements for immunity and lenient plea bargaining in return for co- operation have acquired considerable importance. These agreements are an ancient practice now wearing sophisticated modern dress. They may arise in complex white-collar crime cases, organized crime cases, narcotics prosecutions, and, from time to time, in other prominent major felony cases. They constitute a phenomenon that differs in important ways from the run-of-the-mill guilty pleas that characterize our metropolitan courts and recently have preoccupied students of the criminal system. Unlike the ordinary guilty plea, the suspect or defendant in co- operation agreements offers more than just a quick result that saves public resources; in this kind of case that limited consideration often would not be attractive enough to induce leniency since the government may be quite willing to spend time and money in prosecuting. In cooperation agreements the defendant trades information and testimony, with the promise of enabling the State' to make a case against other defendants who, for one reason or another, are regarded as most deserving of the severest form of prosecution.'

Again, unlike the great run of guilty pleas, the deal made in more complex criminal cases cannot be sealed with a chat in the hall just before entering the courtroom. Compacts for cooperation may involve contested issues that must be negotiated, sometimes for months, and that eventually are embodied in letter agreements that range from the fairly straightforward to the extremely complicated. Most important, in these cases the State cannot speedily conclude the deal with a plea and a sentence and still protect its interests. The cooperator makes a set of promises and assumes potentially onerous and protracted obligations. These will at least include interviews and debriefings and may involve undercover action or observation and reporting back. The cooperator's obligations will probably continue into more formal stages with grand jury and trial testimony and, perhaps, testimony at retrials years later. The State must find a way, therefore, to keep the immunity grant or plea bargain contingent on the cooperator's substantial performance of the promised obligations. The usual sequence of plea and sentencing, with the consequent engagement of the double jeopardy clause, would render these long-term cooperation agreements worthless unless the State carefully drafts the agreements to avoid this hazard.

For these reasons, deals involving promises to cooperate are sharply different from the general phenomenon of plea bargaining. They are exotic plants that can survive only in an environment from which some of the familiar features of the criminal procedure landscape have been expunged. A way must be found to prop open the double jeopardy lid; sentencing (if it is a plea agreement rather than an immunity grant) must be postponed, perhaps for years; immunity (if it is an immunity deal) must be contingent and not irrevocable. The prosecutor must retain the power to enforce the cooperation agreement for as long as necessary. In the end the disposition will be dictated by the terms that were negotiated and by the prosecutor's ability to hold the defend- ant to those terms.

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