JM 9-27.620 – Entering into Non-prosecution Agreements in Return for Cooperation—Considerations to be Weighed

In determining whether a person's cooperation may be necessary to the public interest, the attorney for the government, and those whose approval is necessary, should weigh all relevant considerations, including:

1. The importance of the investigation or prosecution to an effective program of law enforcement, or consideration of other national security or governmental interests;
2. The value of the person's cooperation to the investigation or prosecution;
3. The person's relative culpability in connection with the offense or offenses being investigated or prosecuted and his/her history with respect to criminal activity; and
4. The interests of any victims.

Comment. This section is intended to assist federal prosecutors, and those whose approval they must secure, in deciding whether a person's cooperation appears to be necessary to the public interest. The considerations listed here are not intended to be an exhaustive list or to require a particular decision in a particular case. Rather they are meant to focus the decision-maker's attention on factors that probably will be controlling in the majority of cases.

1. Importance of Case. Since the primary function of a federal prosecution in ordinary criminal cases is to enforce the criminal law, a federal prosecutor should not routinely or indiscriminately enter into non-prosecution agreements, which are, in essence, agreements not to enforce the law under particular conditions. Rather, he/she should reserve the use of such agreements for cases in which the cooperation sought concerns the commission of a serious offense, or prosecution is important in achieving effective enforcement of the criminal laws, including national security-related enforcement and prevention efforts. The relative importance or unimportance of the contemplated case is therefore a significant threshold consideration.
2. Value of Cooperation. An agreement not to prosecute in return for a person's cooperation binds the government to the extent that the person carries out his/her part of the bargain. See Santobello v. New York 404 U.S. 257 (1971); Wade v. United States, 504 U.S. 181 (1992). Since such an agreement forecloses enforcement of the criminal law against a person who otherwise may be liable to prosecution, it should not be entered into without a clear understanding of the nature of the quid pro quo and a careful assessment of its probable value to the government. In order to be in a position adequately to assess the potential value of a person's cooperation, the prosecutor should insist on an "offer of proof" or its equivalent from the person or his/her attorney. The prosecutor can then weigh the offer in terms of the investigation or prosecution in connection with which cooperation is sought. In doing so, he/she should consider such questions as whether the cooperation will in fact be forthcoming, whether the testimony or other information provided will be credible, whether it can be corroborated by other evidence, whether it will materially assist the investigation or prosecution, and whether substantially the same benefit can be obtained from someone else without an agreement not to prosecute. After assessing all of these factors, together with any others that may be relevant, the prosecutor can judge the strength of his/her case with and without the person's cooperation, and determine whether it may be in the public interest to agree to forego prosecution under the circumstances.
3. Relative Culpability and Criminal History. In determining whether it may be necessary to the public interest to agree to forego prosecution of a person who may have violated the law in return for that person's cooperation, it is also important to consider the degree of his/her apparent culpability relative to others who are subjects of the investigation or prosecution as well as his/her history of criminal involvement. Of course, ordinarily it would not be in the public interest to forego prosecution of a high-ranking member of a criminal enterprise in exchange for his/her cooperation against one of his/her subordinates, nor would the public interest be served by bargaining away the opportunity to prosecute a person with a long history of serious criminal involvement in order to obtain the conviction of someone else on less serious charges. These are matters with regard to which the attorney for the government may find it helpful to consult with the investigating agency or with other prosecuting authorities who may have an interest in the person or his/her associates.
4. The Interests of Any Victims. When considering whether it is in the public interest to forego prosecution, it is also important to consider the economic, physical, and psychological impact of the offense on any victims. In this connection, it is appropriate for the prosecutor to take into account such matters as the victim’s desire for prosecution, the victim's age or health, and whether full or partial restitution has been made. In evaluating victim interests and determining whether to pursue a non-prosecution agreement, the prosecutor should be available to confer with the victim in furtherance of the Crime Victims’ Rights Act (CVRA) and in accordance with the Attorney General Guidelines for Victim and Witness Assistance. The prosecutor should also be aware of any effect on the Department’s ability to directly compensate victims of the underlying crimes and on the Crime Victims Fund. SeeComment to JM 9-27.230. For more information regarding the Department’s obligations to victims, see the Crime Victims’ Rights Act, 18 U.S.C. § 3771, the Victims’ Rights and Restitution Act, 34 U.S.C. § 20141, and the Attorney General Guidelines for Victim and Witness Assistance.

It is also important to consider whether the person has a background of cooperation with law enforcement officials, either as a witness or an informant, and whether he/she has previously been the subject of a compulsion order under 18 U.S.C. §§ 6001-6003 or has escaped prosecution by virtue of an agreement not to prosecute. Such information regarding compulsion orders may be available by telephone from the Policy and Statutory Enforcement Unit in the Office of Enforcement Operations of the Criminal Division.

[updated November 2022]

1. The importance of the investigation or prosecution to an effective program of law enforcement, or consideration of other national security or governmental interests;
2. The value of the person's cooperation to the investigation or prosecution;
3. The person's relative culpability in connection with the offense or offenses being investigated or prosecuted and his/her history with respect to criminal activity; and
4. The interests of any victims.

1. Importance of Case. Since the primary function of a federal prosecution in ordinary criminal cases is to enforce the criminal law, a federal prosecutor should not routinely or indiscriminately enter into non-prosecution agreements, which are, in essence, agreements not to enforce the law under particular conditions. Rather, he/she should reserve the use of such agreements for cases in which the cooperation sought concerns the commission of a serious offense, or prosecution is important in achieving effective enforcement of the criminal laws, including national security-related enforcement and prevention efforts. The relative importance or unimportance of the contemplated case is therefore a significant threshold consideration.
2. Value of Cooperation. An agreement not to prosecute in return for a person's cooperation binds the government to the extent that the person carries out his/her part of the bargain. See Santobello v. New York 404 U.S. 257 (1971); Wade v. United States, 504 U.S. 181 (1992). Since such an agreement forecloses enforcement of the criminal law against a person who otherwise may be liable to prosecution, it should not be entered into without a clear understanding of the nature of the quid pro quo and a careful assessment of its probable value to the government. In order to be in a position adequately to assess the potential value of a person's cooperation, the prosecutor should insist on an "offer of proof" or its equivalent from the person or his/her attorney. The prosecutor can then weigh the offer in terms of the investigation or prosecution in connection with which cooperation is sought. In doing so, he/she should consider such questions as whether the cooperation will in fact be forthcoming, whether the testimony or other information provided will be credible, whether it can be corroborated by other evidence, whether it will materially assist the investigation or prosecution, and whether substantially the same benefit can be obtained from someone else without an agreement not to prosecute. After assessing all of these factors, together with any others that may be relevant, the prosecutor can judge the strength of his/her case with and without the person's cooperation, and determine whether it may be in the public interest to agree to forego prosecution under the circumstances.
3. Relative Culpability and Criminal History. In determining whether it may be necessary to the public interest to agree to forego prosecution of a person who may have violated the law in return for that person's cooperation, it is also important to consider the degree of his/her apparent culpability relative to others who are subjects of the investigation or prosecution as well as his/her history of criminal involvement. Of course, ordinarily it would not be in the public interest to forego prosecution of a high-ranking member of a criminal enterprise in exchange for his/her cooperation against one of his/her subordinates, nor would the public interest be served by bargaining away the opportunity to prosecute a person with a long history of serious criminal involvement in order to obtain the conviction of someone else on less serious charges. These are matters with regard to which the attorney for the government may find it helpful to consult with the investigating agency or with other prosecuting authorities who may have an interest in the person or his/her associates.
4. The Interests of Any Victims. When considering whether it is in the public interest to forego prosecution, it is also important to consider the economic, physical, and psychological impact of the offense on any victims. In this connection, it is appropriate for the prosecutor to take into account such matters as the victim’s desire for prosecution, the victim's age or health, and whether full or partial restitution has been made. In evaluating victim interests and determining whether to pursue a non-prosecution agreement, the prosecutor should be available to confer with the victim in furtherance of the Crime Victims’ Rights Act (CVRA) and in accordance with the Attorney General Guidelines for Victim and Witness Assistance. The prosecutor should also be aware of any effect on the Department’s ability to directly compensate victims of the underlying crimes and on the Crime Victims Fund. SeeComment to JM 9-27.230. For more information regarding the Department’s obligations to victims, see the Crime Victims’ Rights Act, 18 U.S.C. § 3771, the Victims’ Rights and Restitution Act, 34 U.S.C. § 20141, and the Attorney General Guidelines for Victim and Witness Assistance.

[updated November 2022]

§ 9-27.620

Entering into Non-prosecution Agreements in Return for Cooperation—Considerations to be Weighed

§ 9-27.620

Entering into Non-prosecution Agreements in Return for Cooperation—Considerations to be Weighed