9-27.001Preface
9-27.110Purpose
9-27.120Application
9-27.130Implementation
9-27.140Modifications or Departures
9-27.150Non-Litigability
9-27.200Initiating and Declining Prosecution—Probable Cause Requirement
9-27.220Grounds for Commencing or Declining Prosecution
9-27.230Initiating and Declining Charges—Substantial Federal Interest
9-27.240Initiating and Declining Charges—Prosecution in Another Jurisdiction
9-27.250Non-Criminal Alternatives to Prosecution
9-27.260Initiating and Declining Charges—Impermissible Considerations
9-27.270Records of Declined Prosecutions
9-27.300Selecting Charges—Conducting an Individualized Assessment
9-27.310Charges Triggering Mandatory Minimum Sentences and Statutory Enhancements
9-27.311Charges Triggering Mandatory Minimum Sentences and Statutory Enhancements in Certain Drug Cases
9-27.320Additional Charges
9-27.330Pre-Charge Plea Agreements
9-27.400Plea Agreements Generally
9-27.410Plea Agreements—Cooperation
9-27.420Plea Agreements—Considerations to be Weighed
9-27.430Selecting Plea Agreement Charges
9-27.440Plea Agreements When Defendant Denies Guilt
9-27.450Records of Plea Agreements
9-27.500Offers to Plead Nolo Contendere—Opposition Except in Unusual Circumstances
9-27.520Offers to Plead Nolo Contendere—Offer of Proof
9-27.530Argument in Opposition of Nolo Contendere Plea
9-27.600Entering into Non-prosecution Agreements in Return for Cooperation—Generally
9-27.620Entering into Non-prosecution Agreements in Return for Cooperation—Considerations to be Weighed
9-27.630Entering into Non-prosecution Agreements in Return for Cooperation—Limiting the Scope of Commitment
9-27.640Agreements Requiring Assistant Attorney General Approval
9-27.641Multi-District (Global) Agreement Requests
9-27.650Records of Non-Prosecution Agreements
9-27.710Participation in Sentencing—Generally
9-27.720Establishing Factual Basis for Sentence
9-27.730Making Sentencing Recommendations
9-27.731Making Sentencing Recommendations in Certain Drug Cases
9-27.745Unreasonable or Illegal Sentences
9-27.750Disclosing Factual Material to Defense
9-27.760Limitation on Identifying Uncharged Third Parties Publicly

9-27.001 - PREFACE

These principles of federal prosecution provide federal prosecutors a statement of prosecutorial policies and practices. As such, they should promote the reasoned exercise of prosecutorial authority and contribute to the fair, evenhanded administration of the federal criminal laws.

A determination to prosecute represents a policy judgment that the fundamental interests of society require the application of federal criminal law to a particular set of circumstances—recognizing both that serious violations of federal law must be prosecuted, and that prosecution entails profound consequences for the accused, crime victims, and their families whether or not a conviction ultimately results. Other prosecutorial decisions can be equally significant. Decisions, for example, regarding the specific charges to be brought, or concerning plea dispositions, effectively determine the range of sanctions or other measures that may be imposed for criminal conduct. The rare decision to consent to pleas of nolo contendere may affect the success of related civil suits for recovery of damages. And the government's position during the sentencing process will help ensure that the court imposes a sentence consistent with 18 U.S.C. § 3553(a). 

These principles of federal prosecution have been designed to assist in structuring the decision-making process of attorneys for the government. For the most part, they have been cast in general terms with a view to providing guidance rather than to mandating results. The intent is to assure regularity without regimentation, and to prevent unwarranted disparity without sacrificing necessary flexibility.

The availability of this statement of principles to federal law enforcement officials and to the public serves two important purposes: ensuring the fair and effective exercise of prosecutorial discretion and responsibility by attorneys for the government, and promoting confidence on the part of the public and individual defendants that important prosecutorial decisions will be made rationally and objectively based on an individualized assessment of the facts and circumstances of each case. The principles provide convenient reference points for the process of making prosecutorial decisions; they facilitate the task of training new attorneys in the proper discharge of their duties; they contribute to more effective management of the government's limited prosecutorial resources by promoting greater consistency among the prosecutorial activities of all United States Attorney's offices and between their activities and the Department's law enforcement priorities; they make possible better coordination of investigative and prosecutorial activity by enhancing the understanding of investigating departments and agencies of the considerations underlying prosecutorial decisions by the Department; and they inform the public of the careful process by which prosecutorial decisions are made.

Important though these principles are to the proper operation of our federal prosecutorial system, the success of that system must rely ultimately on the character, integrity, sensitivity, and competence of those men and women who are selected to represent the public interest in the federal criminal justice process. It is with their help that these principles have been prepared, and it is with their efforts that the purposes of these principles will be achieved.

[updated June 2023]

9-27.110 - PURPOSE

The principles of federal prosecution set forth herein are intended to promote the reasoned exercise of prosecutorial discretion by attorneys for the government with respect to:

  1. Initiating and declining prosecution;
  2. Selecting charges;
  3. Taking a position on detention or release pending judicial proceedings;
  4. Entering into plea agreements;
  5. Opposing offers to plead nolo contendere;
  6. Entering into non-prosecution agreements in return for cooperation; and
  7. Participating in sentencing.


Comment. Under the federal criminal justice system, the prosecutor has wide latitude in determining when, whom, how, and even whether to prosecute for apparent violations of federal criminal law. The prosecutor's broad discretion in such areas as initiating or foregoing prosecutions, selecting or recommending specific charges, and terminating prosecutions by accepting guilty pleas has been recognized on numerous occasions by the courts. See, e.g., United States v. LaBonte, 520 U.S. 751, 762 (1997); Oyler v. Boles, 368 U.S. 448 (1962); United States v. Fokker Services B.V., 818 F.3d 733, 741 (D.C. Cir. 2016); Newman v. United States, 382 F.2d 479 (D.C. Cir. 1967); Powell v. Ratzenbach, 359 F.2d 234 (D.C. Cir. 1965). This discretion exists by virtue of the prosecutor's status as a member of the Executive Branch, and the President's responsibility under the Constitution to ensure that the laws of the United States be "faithfully executed." U.S. Const. Art. II § 3. See Nader v. Saxbe, 497 F.2d 676, 679 n. 18 (D.C. Cir. 1974).

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.

Although these principles deal with the specific situations indicated, they should be read in the broader context of the basic responsibilities of federal attorneys: making certain that the general purposes of the criminal law—assurance of warranted punishment, deterrence of further criminal conduct, protection of the public from offenders, and rehabilitation of offenders—are adequately met, while making certain also that the rights of individuals are scrupulously protected.

[cited in JM 9-2.031, JM 9-6.100]

[updated January 2023]

9-27.120