Legality and Equality: Plea Bargaining in the Prosecution of White-Collar and Common Crimes

On the basis of a case study of a U.S. Attorney's office, I sketch differences in the prosecution of white-collar and common crime in order to draw out implications for equality in current proposals to reform plea bargaining. The extent to which the powers of investigation and prosecution are empirically distinct differs with the two categories of crime. Because of greater social distance between prosecutor and investigator in the enforcement of laws against common crimes, formal records give a misleading impression that legitimate prosecutorial power is being bargained away. Because there is relatively little social distance between the prosecutorial and investigative functions in the prosecution of white-collar crime, the formal record greatly underrepresents the exercise of the power not to prosecute. Reforms that would make bargaining over formal dispositions more consistent with legality or “due” process appear likely to discourage lenience in the prosecution of common crimes while leaving largely unaffected the low visibility exercise of the power not to prosecute white-collar crime.