Josh Blackman:

Federal prosecutors may as well be transactional lawyers. Usually, the deals take a similar form: plead guilty, waive appeal rights, and the government will recommend a reduced sentence, or perhaps no sentence at all. And the parameters of plea bargains are approved at high levels of leadership. For example, the Obama and Biden Administration offered far more lenient plea deals for drug offenses, while the Trump Administration offered more severe plea deals for drug offenses. Those are DOJ policies, based on some assessment of the harmfulness of the offenses.  

In many cases, a plea deal is conditioned on a defendant doing more than pleading guilty. The United States can condition a plea deal on a defendant testifying against a co-defendant. DOJ can condition a plea deal on a defendant providing information to some government entity, in open court, before a grand jury, or in some other confidential form. The federal government can often grant individuals immunity if they go “undercover” as a confidential informant to obtain information about other crimes. Such covert work can place the defendant at risk of death, but the government deems that sacrifice justified in exchange for dropping the prosecution. Moreover, if a defendant refuses to cooperate, the government routinely threatens to bring additional charges, and seek more jail time. In all of these cases, the government uses the carrot of dismissal or the stick of further indictment to promote the ends that the prosecutor’s office deems appropriate. When a U.S. Attorney approves a deal in exchange for cooperation, the government is using a carrot to promote its policy objectives.