The Petite Policy: An Example of Enlightened Prosecutorial Discretion
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THE PETITE POLICY: AN EXAMPLE OF
ENLIGHTENED PROSECUTORIAL
DISCRETION
The Petite policy' is an internal Department of Justice policy
regulating the initiation of federal prosecutions in two situations.2
Under the first prong of the policy-regulating dual state-federal
prosecutions-defendants who are prosecuted by a state will not be
prosecuted for federal crimes arising from the same act except when
there is a compelling federal interest and the approval of an Assistant
Attorney General is obtained.3 The second prong of the policy-regu-
lating multiple federal prosecutions-prohibits separate prosecutions
for different federal offenses committed during the course of a single
transaction unless an Assistant Attorney General approves.4
The Department of Justice developed the Petite policy in response
to several Supreme Court decisions holding that neither dual state-
1. The policy derives its name from Petite v. United States, 361 U.S. 529 (1960) (per curiam).
See notes 22-27 infra and accompanying text.
2. See U.S. Dep't of Justice, United States Attorneys' Manual §§ 9-2.142 to .143 (Jan. 10,
1977) (Title 9-Criminal Division) [hereinafter cited as U.S. Attorneys' Manual]. The Petite
policy is not contained in the United States Code or in the Code of Federal Regulations.
3. Id at § 9-2.142. The Manual states:
No Federal case should be tried when there has been a state prosecution for
substantially the same act or acts without a recommendation having been made to
the Assistant Attorney General demonstrating compelling Federal interests for
such prosecution.
No such recommendation may be approved by the Assistant Attorney General
without having it first brought to the attention of the Attorney General.
Id Attorney General Bell recently modified these guidelines so that an Assistant Attorney
General may now authorize a federal prosecution without notifying the Attorney General. U.S.
Dep't of Justice, Memorandum to all United States Attorneys on Dual Prosecution Policy 1
(Aug. 8, 1977) [hereinafter cited as August 8, 1977 Memo.].
4. U.S. Attorneys' Manual, supra note 2, § 9-2.143. The Manual states:
When several offenses arise out of a single transaction, they should be alleged
and tried together and should not be made the basis of multiple prosecutions. If a
prospective defendant has been Federally prosecuted for an offense and a United
States Attorney desires to further prosecute him for another offense arising from
the same transaction, a recommendation for this course of action shall be
submitted to the Assistant Attorney General for approval prior to initiating
prosecution.
Id
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The Petite Policy: An Example of Enlightened Prosecutorial Discretion
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