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Requests for Immunity by Federal Prosecutors, 1973–2003

Requests for Immunity by Federal Prosecutors, 1973–2003

Government report

By: Department of Justice, Bureau of Justice Statistics

Date: June 11, 2003

Source: "Requests for Immunity by Federal Prosecutors, 1973–2003." Sourcebook of Criminal Justice Statistics Online, vol. 31. Washington, D.C.: Department of Justice, Bureau of Justice Statistics, 2003.

About the Author: The United States Department of Justice is responsible for the conduct of all legal proceedings, both civil and criminal, authorized by American federal statues. The Bureau of Justice Statistics is the branch of the Department of Justice responsible for the compilation and publication of all data in relation to the function of the Department.

INTRODUCTION

Immunity from prosecution is far more notorious in the court of public opinion than it is actually utilized in the American criminal trial process. Immunity has acquired a measure of public notoriety because it is a device only employed in high-profile proceedings, such as those involving organized crime.

As the thirty-year statistics published by the Department of Justice reveal, requests for immunity by Federal prosecutors for witnesses are very rare, relative to the volume of prosecutions conducted across the United States. Immunity requests are advanced in less than one percent of all criminal proceedings per year; an even smaller fraction are made in other federal proceedings, such as income tax and immigration cases.

Immunity is a virtually impenetrable protective barrier from prosecution when provided to a person of interest. Most typically, immunity is sought for a particular witness as a part of the larger resolution of their dealings with the state. A plea bargain regarding other criminal charges, admission into a Witness Protection program, or relocation measures often form a part of immunity discussions.

Unlike countries such as Great Britain or Canada, which share a common legal heritage with the United States, the immunity sought by an American prosecutor for a witness is formally authorized by way of a judicial order. Once conferred, the immunized witness must testify or face contempt of court charges.

Immunity is founded upon the broadest and the most flexible of legal principles, the public interest. The Department of Justice prosecutors who advance an immunity request must assess the public interest by applying the following considerations:

  1. The importance of the prosecution: a murder or high level drug conspiracy might attract an immunity request; the robbery of a tavern will not.
  2. The value of the anticipated evidence from the witness: if the case can be proven by other means, the witness will not attract immunity.
  3. The likelihood of the witness complying with a request to testify in the ordinary course.
  4. The witness' level of participation in the offense that is the subject of the prosecution: in conspiracy cases, the target witness is often highly placed.
  5. The criminal history of the witness.
  6. The likelihood of a successful prosecution.
  7. The likelihood of adverse collateral consequences to the witness; these usually relate to threats of death or bodily harm to the target witness or family.

It is a fact of prosecutorial life that in many cases, immunity will be sought and obtained for otherwise highly unsavory persons. Investigators and prosecutors have long recognized that granting immunity to such individuals is sometimes the price they have to pay in order to secure their help in prosecuting even more serious crimes.

PRIMARY SOURCE

REQUESTS FOR IMMUNITY BY FEDERAL PROSECUTORS, 1973–2003

See primary source image.

SIGNIFICANCE

Transparency is the hallmark of an effective justice system—the ancient maxim, justice must not simply be done, justice must be seen to be done, exemplifies this fact. Transparency and its brother, accountability, only live when the public are given the tools with which to measure the overall performance of the law in relation to society.

The first significance of the published data concerning requests for witness immunity is the fact that it exists at all. Thirty years of records is an unimpeach-able measuring stick with which to assess this corner of the federal justice system.

Requests for immunity by Federal prosecutors to the U.S. Attorney General and witnesses involved in these requests
by origin of request, fiscal years 1973–2003
RequestsWitnesses
Total numberCriminal DivisionTotal numberCriminal Division
NumberPercentNumberPercent
Note: These data reflect requests received from Federal prosecutors under 18 U.S.C. 6001–6005, the statue that governs the granting of use immunity. 18 U.S.C. 6003 requires all Federal prosecuting attorneys to receive authorization from the U.S. Attorney General (or representative) before seeking a court order for witness immunity. It should be noted that in some cases in which the authorization is obtained, the prosecutor may decide not to seek the immunity order from the courts. Therefore, the number of witnesses actually granted immunity is probably lower than the data in the table indicate. It should also be noted that data for 1973 and 1974 include a total of 11 requests and 27 witness, and 7 requests and 11 witnesses, respectively, falling under an older statute, 18 U.S.C. 2514, which was repealed. "Criminal Division" includes the Criminal division of the U.S. Department of Justice and the U.S. attorneys. Other requests, not pertaining to the Criminal division, come from the remaining divisions of the U.S. Department of Justice (e.g., Antitrust, Tax, Civil Division, Civil Rights, and Environment and Natural Resources), as well as from the other Federal agencies (e.g., Federal Trade Commission, Securities and Exchange Commission, and Department of the Army) and from Congress, all of which may request immunity for witnesses. Some data have been revised by the Source and may differ from previous editions of Sourcebook.source: Table constructed by Sourcebook staff from data provided by the U.S. Department of Justice, Criminal Division.
19731,16076966%2,7151,59859%
19741,4101,12180%3.6552,05556%
19751,6321,25977%3,7332,18358%
19761,7891,36176%3,9232,36660%
19771,7981,25070%4,4131,96945%
19781,44595966%2,9971,40347%
19791,5961,16373%3,2041,81657%
19801,6531,20773%3,5301,89254%
19811,6861,25274%3,2712,03262%
19821,8361,39476%3.8102,23359%
19831,9861,42572%4,2262,24353%
19842,3781,83877%4,7842,85860%
19852,4511,89877%5,1463,32965%
19862,5501,94876%5,0133,26765%
19872,3591,86979%4,6033,24971%
19882,3591,82177%4,7023,20568%
19892,3011,80779%4,4953,24972%
19902,0491,69483%3,7352,90578%
19911,9531,56180%3,3772,44973%
19921,8191,41778%3,2422,30971%
19931,9591,46675%3,5212,39368%
19941,7171,26274%3,2792,22568%
19951,5201,18278%2,7761,98772%
19961,4931,13576%2,8062,06674%
19971,5021,10874%2,7371.95371%
19981,3401,01776%2,3001,61670%
19991,19690876%2,0591,44470%
20001,20695579%2,1641,58473%
20011,13292982%1,9861,55878%
200290171780%1,5461,08470%
200391374381%1,6131,17573%

Immunity from prosecution is closely linked to its criminal litigation cousin, the plea bargain. For many prospective protected persons, any arrangement with the prosecution that is distilled to "If I talk, you don't prosecute me" is as good as an acquittal. The reality of major crime prosecutions is that in many cases, to achieve an ultimate goal, there must be compromises; grants of immunity to otherwise undesirable people are a means to an end.

Like the plea bargain, the grant of immunity from prosecution is a dark, ever-present reality to the conduct of major criminal trials. The serious crimes typically prosecuted by the Federal Department of Justice typically involve sophisticated and often well-funded defendants. Terrorism and other crimes against the 2001 Patriot Act, the multinational drug trade, and the traditional organized crime of La Cosa Nostra or outlaw motorcycle gangs are perpetrated by disparate groups that operate with a common denominator—secrecy. Conventional prosecutorial theory means if one unsavory person must be granted immunity to penetrate the veil of secrecy to secure the conviction of a larger or more dangerous group, the prosecution has made a wise investment on behalf of the public.

The figures described in the Department of Justice table do not convey the full import of the immunity application to the reader. Immunity when sought by the federal authorities will almost always be a form of transactional immunity, in which the recipient will be protected from any consequences of his actions that lead to the immunity agreement being sought, save for perjury when testifying pursuant to the immunity order.

The other chief significance of an immunity request is that unlike a plea bargain, immunity will ultimately be tested in a public courtroom. Once a witness testifies under an immunity order, they may be cross-examined with respect to all that was promised and proffered to secure the cooperation of the witness with the state. Many criminal trials become credibility contests between opposing unsavory persons, one of whom is charged, the other immunized into the foundation of the prosecution case.

The thirty years of data does not reveal a discernable pattern of requests. The numbers fluctuate. The one constant factor has been the presence of the Racketeer Influenced Corrupt Organizations Act of 1970, better known by its acronym, RICO. Aimed at the activities of organized criminals, RICO-related prosecutions by their nature have been a stimulus for witness immunity applications.

The Department of Justice figures highlight a fundamental distinction between the resources of the state and those of the defense. The state must prove its case in a criminal proceeding beyond a reasonable doubt; the ability of the state to procure witnesses on the strength of an offer of prosecutorial immunity is a significant weapon. The defense has no corresponding ability to offer such protection to any of its prospective witnesses, a disparity that has never been addressed in American criminal procedure.

FURTHER RESOURCES

Books

Goldfarb, Ronald. Perfect Villains, Imperfect Heroes: Robert F. Kennedy's War Against Organised Crime. Sterling, Va.: Capital Books, 2002.

Morse, Christopher J. New York Criminal Procedure. Durham, N.C.: Carolina Academic Press, 2004.

Web sites

Department of Justice. "United States Attorneys Manual." 〈http://www.usdoj.gov/usao/eousa〉 (accessed February 27, 2006).

University of Arkansas. "No Immunity Request by Local Attorney Could Land Her Tough Sanctions, Maybe Jail." 〈http://law.uark.edu/library/finals/brill/web/theclient/marksway2.htm〉 (accessed February 27, 2006).

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