Federal Prosecutors and Sentencing Discretion

[Some may think my comments here a little too negative, cynical, or paranoid. However, I suggest you take a look as some of the corroborating comments by federal judges at the end of this post.]

As a follow-up to my previous Enron post, consider this article:

The Federal Prosecutor: A Calling Betrayed

It includes what I presume is a famous speech given by Robert H. Jackson in 1940 to a gathering of US Attorneys. At the time, he was the US Attorney General. He later became a Supreme Court Justice.

These remarks in particular deserve repeating:

"The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst."

If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff would be inadequate. We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning. What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.

If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.

The US Sentencing Guidelines were part of an overall reform package implemented in the mid-1980s. The intent was to create more uniform sentences across the country by reducing the discretion of judges. Certainly, everyone would agree that two people convicted of identical conduct should receive similar sentences. Unfortunately, what has actually happened is that discretion has not be removed from the system, it has simply been transferred from impartial judges to partial prosecutors. In other words, the guidelines only insure that identically charged (and convicted) defendants are sentenced similarly but it can't guarantee that identical conduct will be charged similarly -- two individuals who commit identical acts could be charged dramatically differently based on the discretion of two different prosecutors. And, of course, that means that their sentences will be dramatically different.

Unlike judges, prosecutors are graded on convictions (and length of sentences); they don't get "points" for choosing not to prosecute someone. That is, they aren't graded on doing justice.

The most important exercise of discretion occurs when prosecutors make their charging decision -- that is, what offenses to charge a defendant with. Given the power of a prosecutor, as described above, it is not difficult to make a defendant's life miserable during the pre-trial (or even pre-indictment) phase and then threaten to charge with marginal or technical violations of obscure or broadly worded statutes in order to extort a plea agreement. (For example, money laundering is a favorite, and almost automatic, additional count for fraud offenses and can be triggered merely by depositing funds derived from "specified unlawful activity" into a bank account, even without any effort to conceal.)

Most citizens do not realize -- I certainly didn't -- that the "penalty" for exercising one's constitutional right to a jury trial is, if convicted, a sentence typically 4-5 times longer than what one would receive with a plea deal, which is one of the reasons the plea bargaining process is unbalanced, if not unfair. It is understandable that a defendant who "accepts responsibility" will, and probably should, get a slightly lower sentence than a defendant who proclaims his innocence and is convicted. Indeed, the guidelines already provide a 2-3 point reduction for this (which translates to approximately 6-24 months depending on the length of the unadjusted sentence). It is also understandable that a defendant who saves the Court and the Government the time and resources to prosecute a jury trial should be rewarded somewhat for that.

However, "innocent" defendants -- and this is especially an issue with white-collar defendants who have no criminal history -- who have always been taught to believe, and indeed do believe, in the American justice system, ("truth, justice, and the American Way", yada, yada, yada) but are naive about the difficulty of beating the feds in a jury trial (trust me, the deck is seriously stacked in favor of the prosecution, notwithstanding the so-called "presumption of innocence"), are most vulnerable to the temptation to fight the charges, only to find themselves with long prison sentences.

It is a difficult task -- although it may be the most important task -- for a defense lawyer to explain to his client that, once he has been caught in the web of a federal investigation, the process is not about guilt or innocence, fair or unfair, right or wrong... it is ONLY about controlling the damage. Ditch the ego. Forget about your reputation. This is not a game. It is not a dream. Your liberty and your livelihood are on the line.

I heard this over and over in prison... inmates who, knowing what they know now, wish they had just taken the deal. What is it that they know now? "You can't beat the feds." It is almost a mantra -- "You can't beat the feds."

I knew an inmate (another story I hope to tell) who was charged (i.e. indicted) with identical conduct as his co-defendant (they were both corporate executives, one was the president, the other the executive VP). Just before trial (after 5 years of investigation!), he took a plea deal (19 counts were reduced to 1) and received 27 months. With admission to the RDAP (drug) program, he will serve about 14 months (in fact, he is probably already out). His co-defendant insisted on his innocence and went to trial. He was convicted of all counts and received 15 years (of which he will serve about 12.5 years). Identical objective conduct. Both equally believed in their own innocence. Both were in their late 30s, married with young children. Both engaged in conduct that was not uncommon during the dot-com boom. One defendant -- the one I met in prison -- "caved" (or "saw the light", depending on your perspective), refusing to take the risk. The other fought. The results were catastrophic.

The inmate I referenced in the previous post, who was convicted of "conspiracy to harbor illegal immigrants," was offered a plea deal of probation (although he would have still been a federal felon). He refused because it would have required him to lie and testify against his client. He was convicted and receive 4 years.

I could go on and on.

One guy was offered a year for conspiracy to commit money laundering (a "non-crime" crime if there ever was one). Turned it down. Convicted. Now serving 41 months. Had he taken the deal, he would have been out of prison before his trial actually ended up starting!

Another was offered a year. Turned it down. Convicted. 47 months. Also would have been out before his trial ended up starting.

Due to the inflexibilty of the US Sentencing Guidelines (even though they are technically advisory after Booker), and the prevalence of plea deals (only about 5% of cases actually go to trial), prosecutorial discretion is the whole ball-game. Prosecutors, for all practical purposes, determine the sentences of all defendants; the judges have become mere arithmeticians, adding up the USSG points and sentencing within the narrow range required. Previously, judges could review all the facts of a case and make a decision as to the appropriate sentence. This was a check on prosecutors "over-indicting" individuals for technical violations of statutes outside the intent of Congress.

Perhaps what we need are US Prosecution Guidelines (that define how prosecutorial discretion is to be exercised), rather than US Sentencing Guidelines.

For more "objective" information on this important subject, please check out this great article in the Georgetown Journal of Legal Ethics last year:

When Doing Justice Isn't Enough: Reinventing the Guidelines for Prosecutorial Discretion

If you think I exaggerate in this post, consider these comments by (now senior) Federal District Judge Graham Mullen at a US Attorney's Office retreat, which includes the following:

On pursuing convictions in court: "If you define excellence as prosecuting every case that passes through your quality screen pursuing a win-a-conviction-at-all-cost and a maximum sentence, then we have a conceptual cognitive dissonance."

On how federal prosecutors are perceived: "Your office is perceived as acting like arrogant bullies who over-indict, always believe snitches, threaten defendants who seek release on bond, always seek to get the max and go for the jugular."

On federal sentencing guidelines: "I am only performing a ministerial function -- indeed only slightly more than a clerical function at sentencing. Frankly, the sentencing guidelines would gag a maggot. ... You now determine the sentence. Not me. Your power has become all but absolute."

Or this article by District Judge Carl Horn III, which includes:

While we should avoid idealizing the way things "used to be," it is an objective fact that since 1987 most sentencing discretion in federal cases has been either taken away entirely or transferred to the prosecutor. In my view, as a former prosecutor and close observer of the federal criminal process, this transfer of sentencing power has yielded regrettable results.

What they [drug offenders] have done is wrong and self-destructive to be sure, but I also find the glee with which many 30-something AUSAs send them off to decades in prison to be profoundly offensive .

The "big picture" solution to the current imbalance is to change the law, that is, to return sentencing discretion to the judiciary where it has properly resided since before Blackstone wrote his Commentaries on the Laws of England.

And finally (I like this one):

While judges and an increasing number of lawyers realize we have a serious imbalance in our federal criminal system, most of the public still does not. In fact, the most often recurring comment I hear from friends or those who learn what I do for a living is some version of "Lock 'em up and throw away the key." Without putting the speaker down, my usual response begins something like, "You know, after over 15 years as a prosecutor and judge, I don't feel that way at all." Many constructive conversations have followed.

Take every opportunity to "spread the word." In addition to one-on-one
communications, consider writing an opinion piece for your local paper or for your state and/or local bar publications. Write succinct letters to the editor that tell, as Paul Harvey would say, "the rest of the story" when related news is reported or opinion expressed. [Or, start a blog!!! ]