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August 20, 2013

US District Judge Bennett documents prosecutor-created disparity from § 851 enhancements in yet another potent opinion

Long-time readers know that big federal sentencing news can often come from the heartland in the form of potent lengthy opinions by US District Judge Mark Bennett.  His latest important sentencing work, which a number of helpful readers have made sure I would not miss, comes in US v. Young, No. 5:12-cr-04107 (D. Iowa Aug. 16, 2013) (available for download below).  I could say much about so many notable passages in this 75-page Young opinion (which includes 20+ pages of data-rich appendices at the end), but I will be content to let the first few paragraph highlight why this opinion is a must-read for all who follow the federal sentencing system:

This case presents a deeply disturbing, yet often replayed, shocking, dirty little secret of federal sentencing: the stunningly arbitrary application by the Department of Justice (DOJ) of § 851 drug sentencing enhancements. These enhancements, at a minimum, double a drug defendant’s mandatory minimum sentence and may also raise the maximum possible sentence, for example, from forty years to life. They are possible any time a drug defendant, facing a mandatory minimum sentence in federal court, has a prior qualifying drug conviction in state or federal court (even some state court misdemeanor convictions count), no matter how old that conviction is.

Recent statistics obtained from the U.S. Sentencing Commission (Commission) — the only known data that exists on the eligibility and applications of the DOJ’s § 851 decision making — reveal jaw-dropping, shocking disparity. For example, a defendant in the Northern District of Iowa (N.D. of Iowa) who is eligible for a § 851 enhancement is 2,532% more likely to receive it than a similarly eligible defendant in the bordering District of Nebraska. Equally problematic is that, at least prior to August 12, 2013, decisions to apply or waive § 851 enhancements were made in the absence of any national policy, and they are still solely within the unreviewed discretion of the DOJ without any requirement that the basis for the decisions be disclosed or stated on the record. This is true even for non-violent, low-level drug addicts.

These decisions are shrouded in such complete secrecy that they make the proceedings of the former English Court of Star Chamber appear to be a model of criminal justice transparency.  See In re Oliver, 333 U.S. 257, 266–271 (1948) (“The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by . . . the English Court of Star Chamber.”).  Attorney General Holder’s August 12, 2013, Memorandum to the United States Attorneys and Assistant Attorney General for the Criminal Division: Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases (Holder 2013 Memo), while establishing a national policy for § 841 enhancements, does nothing to pull aside the cloak of secrecy shrouding the nationwide disparities in the application of § 851 enhancements.

Download Bennett Young opinion.081613

August 20, 2013 at 03:23 PM | Permalink

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Comments

Amazing stats....why didn't DOJ make all this public. Disgraceful.

Posted by: Steve Prof | Aug 20, 2013 7:10:11 PM

One thing you have to love about Judge Bennett is that he makes no attempt either to hide his partisanship, or to attend to the Constitution's limited empowerment of the judicial branch to decide cases and controversies rather than write 75 page op-eds.

P.S. The solution to individual prosecutors promoting disparity is, obviously, individual judges promoting even more! Far out!!

Posted by: Bill Otis | Aug 20, 2013 7:30:34 PM

Bill, why don't you respond to the merits of the disparity rather than personal attacks. As you will recall this was the judge that one of the most conservative Supreme Court's in history affirmed in Spears and Pepper after multiple reversals by the 8th Cir.

Posted by: Steve Prof | Aug 20, 2013 8:03:17 PM

Bill, how does this opinion promote more judicial disparity? Your P.S. makes no sense. As Bennett points out judges variances are reviewed for reasonableness. Who ever said the solution to AUSA disparity is judicial? What sense does that make, Bill?

Posted by: Steve Prof | Aug 20, 2013 8:12:28 PM

Bill, I am interested in why you don't think this shows that sentencing, once considered judge roulette, is not now prosecutor roulette. Seriously, I would appreciate your take. We already know that the biggest average departures (measured in months) are government-initiated, not judge-initiated.

Posted by: Thinkaboutit | Aug 20, 2013 8:12:28 PM

Steve Prof --

YOU are wagging your finger at ME about "personal attacks"??? After your history in the comments section?

Wow, and I thought I knew before now the definition of "hypocrisy."

P.S. I've addressed the merits of issues raised on this blog dozens of times more than you have. When you start to make some substantive contributions, get back to me. If you want to know what one looks like, try this: http://www.usatoday.com/story/opinion/2013/08/14/mandatory-sentences-crime-rates-editorials-debates/2657989/

Posted by: Bill Otis | Aug 20, 2013 8:22:48 PM

Thinkaboutit --

"Bill, I am interested in why you don't think this shows that sentencing, once considered judge roulette, is not now prosecutor roulette."

It is the Constitution, not me, that vest charging authority exclusively in the executive. I think the Framers knew that prosecutors come in all sizes and flavors. So you would have to take your question up with the Framers.

"We already know that the biggest average departures (measured in months) are government-initiated, not judge-initiated."

Then I could ask DOJ to stop initiating them, although I doubt this would make you any happier (or that they would listen).

Posted by: Bill Otis | Aug 20, 2013 8:30:20 PM

Judge Bennett knows the guidelines well. He is smart and a guy a good fair shake.
One hell of a good man and even better judge. Need more like him in the federal system.

I agree that having a trigger for 851 enhancement is really buried where most don't go.

The federal system need to be grossly over hauled. Save tax dollars and lives.

Posted by: MidWestguy | Aug 20, 2013 8:31:30 PM

Bill, I have no quarrel with the fact that prosecutors have charging authority and discretion. There is no constitutional mandate, however, for substantial assistance motions, let alone liberal use of such motions.

Where we disagree is this: you say the answer to prosecutorial inconsistency is not a second level of inconsistency, ie, judicial discretion, whereas I say the answer to prosecutorial inconsistency is checks and balances, ie, judicial discretion. I think I have the better argument for where the founders were on entrusting too much power to one government actor with control over personal liberty.

Posted by: Thinkaboutit | Aug 20, 2013 8:48:02 PM

Bill is correct here. You don't solve a people problem with a structural fix, that is always a long term mistake. If one USDA is too much of an outlier, fire his/her ass. It bugs me a great deal that people are so willing to give up on the electoral system. If the response to that is that DC is too distant from such local concerns, then that too is a political problem.

I do not see a genuine disagreement about the need for checks and balances. What I see is a genuine dispute over /who/ should be providing that. And I agree with Bill that the proper who is the people themselves, through the ballot box. Not the judicial system.

Posted by: Daniel | Aug 20, 2013 9:05:56 PM

I think Thinkaboutit's last comment gets effectively to the heart of your frequent dodge, Bill, based on the (debatable) assertion that the Framers wanted federal prosecutors to have absolute, largely hidden, and wholly unreviewable discretionary authority to be distinctly lenient or distinctly harsh based on whim or caprice. Even if you accept that conception of prosecutorial power, it does not follow that the Framers would not want judges to have some kind of authority to check the application of that power in some way --- at least if/when that power is used to be distinctly harsh in requiring mandated prison terms that would appear to the judge to be much longer than necessary and for defendants who seem much less culpable than other defendants given leniency by these prosecutors in comparable cases.

You often like to assert, Bill, that giving judges more sentencing discretion can undermine the rule of law. But I think the data Bennett puts together here highlights that federal prosecutors are doing a pretty poor job on protecting the rule of law while being effective at avoiding the accountability and transparency and reviewability that should come with a real commitment to the rule of law.

I am not expecting you to praise Bennett or others who promote the need for judicial sentencing discretion, but I continue to wish you would admit that most of your arguments are at base a defense of broad and unreviewable prosecutorial power, and are not really based in a commitment to the rule of law or the Framers constitutional values.

Posted by: Doug B. | Aug 20, 2013 9:07:35 PM

Thinkaboutit --

Your answer is thoughtful but problematic. As Doug has pointed out before (and with no little gusto), and as you correctly imply, the basic sources of prosecution-centered disparity are (a) the initial charging decision (and particularly whether to charge a MM-eligible offense), and (b) substantial assistance motions.

But (1) as a Constitutional imperative, the judiciary has no say whatever over charging decisions, (2) you would be a lot more unhappy if the prosecution quit making substantial motions, and (3) while the motions are a catalyst for disparity (they are not the cause, because the judge can always deny them), they are not a catalyst for UNWARRANTED disparity because they are largely (although not entirely) dictated by the defendant's prudent behavior, choices and candor. These things are of course disparate, and so are the motions to which they give rise.

As they should be.

Completely uniform sentencing is impossible, and undesirable, because there is no such thing as uniform criminality. But the more government actors you have making individual decisions, the more irrational disparity you're going to invite.

Judges can be arbitrary and partisan, too. Anyone who practices regularly knows this.

Posted by: Bill Otis | Aug 20, 2013 9:08:29 PM

Doug --

See my answer to Thinkabout it, written as you were putting up your comment.

C'mon Doug. If judges used their "discretion" to do upward departures instead of almost uniformly downward ones, you know full well that you'd be telling us about the dark dangers of letting judges have so much leeway.

I hope you won't "dodge" (your word aimed at me) admitting that this is so.

Posted by: Bill Otis | Aug 20, 2013 9:15:34 PM

Congress passed Title 21, United States Code, Section 851, and the President signed it. Congress can always repeal it. That looks like checks and balances to me. The judicial branch is constrained by the laws that Congress passes. Congress could also pass a law giving more guidance as to when prosecutors can and cannot use 851. It has not done so. Prosecutors are just using the law as Congress drafted it.

If you don't like disparity, how about prosecutors filing 851 notices in every single case where the defendant has a qualifying conviction? That'll get rid of the disparity. It seems to me that the disparity arises when the prosecutors are lenient and choose either not to file one in the first place or to dismiss one that has already been filed.

Posted by: Domino | Aug 20, 2013 9:46:47 PM

Domino --

Some very good points.

Posted by: Bill Otis | Aug 20, 2013 10:01:21 PM

I am not sure you are right, Bill, about my disaffinity for tough judges. I can think of at least a few cases in which, after it seemed federal prosecutors cut too-sweet deals for prominent white-collar defendants, I would have been eager/happy to see a federal judge go tougher (the soft sentencing of former Judge Camp and Bill Lerach are two that come quickly to mind). And, as you should know well, I have often in this space complained about undue judicial leniency in the sentencing of drunk drivers (recall, e.g., my full-throated defense of the Michigan state judge who went much tougher than the norm when sentencing Jalen Rose to jail for a DUI).

In addition, the real issue here is also one of sentencing scale and checks/balances/transparency. If judges were using discretion to jack up sentences in chunks of 5 and 10 and 20 years, AND if judicial sentencing decision were largely hidden, wholly unexplained and wholly unreviewable, you are right that I would talk a lot more about the "dark dangers of letting judges have so much leeway." But, when judges go up in the federal system, they tend to increase sentences in chunks of months, not years/decades, and their decisions are always on the record, they have to be explained, and are subject to judicial review for reasonableness. In contrast, the operation of MMs discussed by Judge Bennett serve to jack up sentences in chunks of 5 and 10 and 20 years AND these prosecutorial charging decisions have been hidden for decades now, they are never really explained, and they are never subject to any judicial review.

This returns me to my key point in these debates, Bill, which is that your defense of the current system seems really based in your essential affinity for unreviewable and broad prosecutorial power to dictate sentencing outcomes, not in a commitment to the rule of law or the Framers' values or the text of the Constitution. That is fine, and I also have no problem a corresponding belief that a system giving federal prosecutors such power is good for crime control goals. But I do have a problem with you trying to cloak your affinity for unreviewable and broad prosecutorial power to dictate sentencing outcomes in the rule of law or the Constitution's text or values.

Posted by: Doug B. | Aug 20, 2013 10:05:01 PM

Doug --

A few points.

First, sure you make some exceptions, particularly about drunk driving, but overwhelmingly you take the view that sentences are too long. And I have never seen you praise a routinely tough judge. By contrast, you have heaped fulsome praise on Bennett, Jack Weinstein, John Gleeson, Nancy Gertner (when she was a judge), Jack Kane, Myron Bright, and a few others I'm forgetting right now. So I repeat: If judges used their "discretion" to do upward departures instead of almost uniformly downward ones, you'd be telling us about the dangers (dark or otherwise) of letting judges have so much leeway.

Second, let me take this on line by line:

"This returns me to my key point in these debates, Bill, which is that your defense of the current system seems really based in your essential affinity for unreviewable and broad prosecutorial power to dictate sentencing outcomes, not in a commitment to the rule of law or the Framers' values or the text of the Constitution."

First, the current system was created as much by liberal Democrats as by conservative Republicans. If I'm defending it, I'm being bi-partisan, which didn't used to be a sin.

Second, I am indeed for broad prosecutorial discretion, because it is consistent with, if not in haec verba dictated by, the Constitution, and because 40 years' experience shows that it works. If you're a pragmatist, you should applaud that.

I am not for unreviewable prosecutorial discretion. I simply wanted it reviewed by politically accountable officials, not by ones who have no such accountability. Is there something wrong with political accountability?

Your quest for judicial review of prosecutorial decision-making is as transparent as your quest to proceduralize executive clemency decisions. The aim is not just to get the judicial foot in the door; the smarter (and smartly concealed) aim is to get THE DEFENSE LAWYER'S foot in the door. I mean, once judges get to review prosecutorial discretion, defendants are going to file motions with those judges, right? And there's going to be discovery, right? And, to cut to the chase, criminals are going to have a seat at the table to decide the charges they will face.

Well, as you would say, "that is fine," as long as we know what the endgame actually is here.

"That is fine, and I also have no problem a corresponding belief that a system giving federal prosecutors such power is good for crime control goals."

Why are you so down on controlling crime? That's the primary thing the criminal justice system is supposed to do, not so? Or if its primary purpose is something else, what? I asked this the other day, but you didn't answer. I would really like to know what you think the primary criterion of success for the criminal justice should be. If not suppressing crime, and I'd like to know why something different should count more.

"But I do have a problem with you trying to cloak..."

I do less cloaking than any commenter on this blog.

"your affinity for unreviewable..."

I just went through that, and not for the first time.

"...and broad prosecutorial power to dictate sentencing outcomes in the rule of law or the Constitution's text or values."

Judges have vastly more say-so over sentencing than prosecutors, as you would know if you had been a litigating lawyer, as I was for almost two decades. Yes, their say-so is limited where there is a mandatory minimum statute, but that is a very small fraction of all federal criminal cases.

As for the rule of law: Which of us has spoken up for mandatory guidelines, and which of us has spoken up for anything-goes sentencing (see, e.g., the Leahy/Rand bill). Which of us has spoken up for giving Congress at least some authority to constrain judges, and which of us has advocated judges' being given 100% discretion to do whatever strikes the judicial fancy (as long as they give "reasons," to be deferentially reviewed by yet other judges)(who belong to the same country club).

So who's for the rule of law?

Posted by: Bill Otis | Aug 20, 2013 11:14:59 PM

Mr. Bill: "It is the Constitution, not me, that vest charging authority exclusively in the executive. I think the Framers knew that prosecutors come in all sizes and flavors. So you would have to take your question up with the Framers."

This could be a false premise resulting in the false conclusion in that most if not all prosecutions were private rather than public (the latter being brought by the government.)

In the early days of our Republic, "prosecutor" was simply anyone who voluntarily went before the grand Jury with a complaint. — United States v. Sandford, Fed. Case No.16, 221 (C.Ct.D.C. 1806). Private Prosecutions.

Posted by: George | Aug 20, 2013 11:16:52 PM

Domino, you act as if prosecutors are grateful children who come down on Christmas morning and just play with the toys Santa gave them. That is not how the real world works. If Congress sought to repeal section 851 or put limits on it, the Justice Department would vigorously oppose such an effort and lobby against it. Prosecutors, old and new, such as our friend Bill, would tell Congress, the media, and anyone who would listen that such a change will lead to more people being victimized by violent thugs. Saying they simply use the law as Congress drafted it is like saying a bank robber only takes the money the teller gives him.

Posted by: Thinkaboutit | Aug 20, 2013 11:21:12 PM

There is actually one area I think prosecutorial discretion should be checked, and it does not lie in the direction of additional leniency. Instead I believe there should be other than political mechanisms to check prosecutors' choosing not to bring viable cases. I fully believe that such power should not vest solely in government officials (and indeed my understanding is that for many years after the founding private parties could in fact prosecute criminal charges at least through grand jury proceedings, though I am not sure if at that point the government was forced to take the case or if the private party could continue to press the case through trial.

I also, however, fail to see that lenient treatment of one offender (or even many offenders) gives some other offender any right to similar treatment.

Posted by: Soronel Haetir | Aug 20, 2013 11:36:44 PM

George --

Public or private, prosecutors alone, not judges, are vested by the Constitution with the authority to bring criminal charges.

Posted by: Bill Otis | Aug 20, 2013 11:38:48 PM

Me. Bill, are you intentionally making a leap? Private prosecutions were brought before a grand jury that could indict.

In the early days of our Republic, "prosecutor" was simply anyone who voluntarily went before the grand Jury with a complaint. — United States v. Sandford, Fed. Case No.16, 221 (C.Ct.D.C. 1806).

What is the role of the grand jury?

Posted by: George | Aug 21, 2013 12:10:45 AM

@Thinkaboutit.

"Saying they simply use the law as Congress drafted it is like saying a bank robber only takes the money the teller gives him."

This is nothing but showboating elitism. The truth is that the ultimate repository of power in our Republic is the people. While it's true that Congress's exercise of its legislative powers does not occur in a vacuum it is equally true that Congress can and has told the DOJ to shove it in the past. Part of the underlying problem is precisely that Congress often responds to inside the Beltway pressure groups rather than their own voters but the right answer to that problem is not yet another effete and overweaned pressure group.

Your and Doug's posts in this thread remind me of the fact that in many ways it is the hoity toity "liberals" and their slovenly begging before established authority that is as much a problem as the intellectual skullduggery of tea party conservatives. The cynical part of me thinks the only reason Doug supports increasing the judiciary's power in this instance is because he still holds hope that one day he will be a judge and so he is only lining his own future pockets as opposed to his lack of desire to ever be a prosecutor.

Posted by: Daniel | Aug 21, 2013 2:24:09 AM

Daniel, I am a life-long conservative Republican. On Capitol Hill, I ran the Republican Study Committee and spent a year as counsel on the Constitution subcommittee for then-Sen and future AG John Ashcroft. I have never voted for a Democrat, let alone a liberal in my life. You don't know me well and it's clear from your post you don't know much about how Congress works. But keep on truckin'.

P.S.If you read William A. Henry's In Defense of Elitism, you will learn why I don't mind your calling me an elitist. Just don't call me a liberal.

Posted by: Thinkaboutit | Aug 21, 2013 9:43:02 AM

Otis, are you ever going to respond to the merits of the stats gleaned by the U.S.S.C. that this judge uses to demonstrate massive disparity. Funny you call him partisan because he dares to tell the trufh about your beloved DOJ - you ae one of the most partisan folks on this blog and any body who disagrees with your blind love for DOJ is patisan....I guess when Bennett varies and departs upwards he is partisan, too. Let's here a few of your thoughts on the merits of this terrible disparity, if you are capable of that.

Posted by: Steve Prof | Aug 21, 2013 10:51:32 AM

Steve Prof,

I don't see that Bill has anything to respond to. As I said, I don't believe lenient treatment of some offenders based on discretionary processes gives an offender not in the set any right to similarly lenient treatment.

Would you be pleased if this issue were resolved by terminating the lenient treatment that some offenders now experience? (That actually would have been my preferred fix to the crack-powder disparity -- to raise the powder penalties rather than reduce those for crack.)

Posted by: Soronel Haetir | Aug 21, 2013 11:36:03 AM

Steve Prof --

I tend to respond to people who have at least rudimentary manners. That would not include those who address me as "Otis." Do you think I'm your servant?

I have given vastly more of a substantive response on this thread, and many others, than you have even attempted.

Cut the rudeness, get some normal courtesy, and grow up. I have a lot of people here, at the networks, in the press, at law schools, on the Hill, at court, and a bunch of other places I can talk to and who know what "respect" means. Learn it and then get in line.

Posted by: Bill Otis | Aug 21, 2013 11:40:15 AM

Thinkaboutit:

I love your comment:

"Saying they simply use the law as Congress drafted it is like saying a bank robber only takes the money the teller gives him."

The DOJ tells everybody that they NEED these powers and discretions to get "the really bad guys" even if only to threaten and intimidate "the not so bad guys" to get at "the really bad guys". Congress (aka two party b-st-rds) swallows this institutional BS hook, line and sinker but the DOJ does not just limit these powers and discretions to "the really bad guys".

This is where the judges should come in and put the brakes on the corrupt DOJ "system". It appears to me to be a self back-slapping bunch of good old boys.

"Ya'll come back now, ya hear."

Unlike certain commenters, I will try to read the CONTENT of Judge Bennet's opinion and judge it on its merits. I am MORE conservative than Daniel and Bill, which means I worked and earned what I have outside of gubermint employment, yes even IN SPITE OF GOVERNMENT INTERFERENCE. At the end, I was paying six figures in federal tax for the pleasure of observing this gross incompetence.

Posted by: albeed | Aug 21, 2013 11:41:51 AM

Thinkaboutit
I am neither party as I feel in general they both fall short
I vote for the individual. How is this working for me. It's not working out for anyone these days.. They were over a barrel so they passed the last tax increase.

The 851 enhancement is so terribly gross,. The main problem is that this and the other enhancements aren't being used for their intended purpose.

The guidelines need to fall and a total rewrite is needed. Sooner the quicker.

Posted by: MidWestguy | Aug 21, 2013 11:51:12 AM

Soronel Haetir thank God your ideas on drug disparity are shared by virtually no one with a pulse and an IQ in double digits. Your notions of sentencing would lead to much greater mass incarceration and break Ft. Knox to pay for it.

Posted by: Steveprof | Aug 21, 2013 2:26:31 PM

Mr. Bill Otis, King of all Sentencing Wisdom and the Font of all True Knowledge, I bow to kiss your feet and magic ring -- are you ever going to respond and justify this incredible disparity , if not I take it you have no rejoinder to the merits of the gross disparity and DOJ's responsibility for letting this happen.

Posted by: Steveprof | Aug 21, 2013 2:30:01 PM

Steveprof scolds those who write ad hominem, then puts up the two comments above.

Judge for yourselves.

Posted by: Bill Otis | Aug 21, 2013 3:10:28 PM

Well, then, Mr. Bill, what about the grand jury's role in prosecutions in "the early days of our Republic"?

I still suggest your argument is based on a false premise resulting in a false conclusion. Because it appears in the early days, at the Founding, prosecutions going forward depended on grand juries, not executive branch discretion. It may follow that jury nullification was a check and balance on grand jury ham sandwiches, The People v The People. That is a rather interesting possibility that suggests the government was more procedural referee than interested party.

Posted by: George | Aug 21, 2013 3:43:55 PM

George --

I keep hearing here that grand juries are mere rubber stamps of the prosecutor -- the puppet in his hand. You mean the defense lawyers who've been saying this for so many years got it wrong?

By the way, if you could point out the language in the Constitution that gives the judiciary any role in charging decisions, I'd be obliged. I can't seem to find it.

Posted by: Bill Otis | Aug 21, 2013 4:31:57 PM

I have read Judge Bennett's opinion and found it astoundingly perceptive. I plan to study it in greater detail, because the breadth of the thoughts presented require such effort. I wanted to note that Judge Bennett explained that he requested the raw data used for the section 851 analysis from the Commission. He stated that he then re-analyzed and reformatted the raw data in several significant ways that went far beyond the Commission's analysis.

I think this effort by Judge Bennett deserves special recognition. He used data in a way that people reading the opinion can readily understand. Without his initiative in requesting and then re-analyzing the raw data, it is possible that his opinion would not be so stark in its findings. I think that this type of effort is an example of what should be done on a more routine basis to address fundamental sentencing issues. Elaine Mittleman

Posted by: Elaine Mittleman | Aug 21, 2013 6:45:58 PM

Mr. Bill, better if you point to the language in the Constituion that gives public prosecutors sole descretion.

Grand Juries Gone Wrong pdf

By Roger Roots*
ABSTRACT
The shameful state of contemporary federal grand jury practice has attracted the attention of many scholars. Today’s grand juries (especially at the federal level, but no less so in most states)1 offer little or no check on government power, and no longer protect Americans from improper or unnecessary prosecutions. Although a number of reforms have been suggested over the years, the author suggests that none of them would wholly restore the institution to its constitutional role, design and purpose. This article advocates a bold reformation of Rules 6 and 7 of the Federal Rules of Criminal Procedure so that prosecutors would be barred from participating in grand jury investigations except when expressly invited by a grand jury to do so. This proposal would be most consistent with grand jury practices of the Founding period and the original intent behind the Fifth Amendment’s Grand Jury Clause.

See also

PRIVATE VENGEANCE AND THE PUBLIC GOOD

Without a practice of establishing an office for the prosecution of crimes, it is no surprise then that the colonists and early Americans imported from England the practice of private prosecutions of criminal offenses. The absence of police forces and public prosecutors necessitated such a practice:

The crime victim served as policeman and prosecutor who, if he chose to apprehend an offender and initiate a prosecution, did so directly and at his own expense. He did not have to rely on other government agencies. On the contrary, he could not rely on them even if he had wanted to because they either did not exist or did not perform the function he sought.

The enterprising colonists, left to their own devices, established legal forums to resolve disputes and provide a peaceable means of seeking restitution. And, it appears, that without statutorily established public prosecutors, privately-retained prosecutors managed the majority of criminal enforcement actions.

Posted by: George | Aug 21, 2013 7:22:51 PM

actually the framers didn't have to worry about it as much as we do because they had a much better and amply demonstrated check on the govt.

Lots of guns and the willingness to use em if the boys went too far out into the twilight zone!

Posted by: rodsmith | Aug 21, 2013 9:27:50 PM

In my experience, 851 enhancements are used as a bludgeon to get defendants to plead guilty and agree to sentences that prosecutors want no matter how flawed their evidence, how untrustworthy their cooperators, or who questionable their inferences. Standard operating procedure it to demand the defendant agree to 5, 10, 100 kilos in relevant conduct or go to trial and face life.

As far as the judiciary, even if their hands are generally tied with statutory mandatories, for the most part they are willing accomplices. Few exercise the discretion at their disposal in the interstices between mandatories and maxima. Indeed, it is the rare judge that doesn't sanction the bludgeon by "punishing" the defendant who bucks the system and dares to take the case to trial. As long as the jury convicts on any count, the defendant loses. That is why so few federal cases go to trial.

Don't mean to paint all prosecutors and judges with such a broad brush. There are exceptions.

Posted by: Carmen Hernandez | Aug 22, 2013 1:11:27 AM

I would gess this Linda Reade from Cedar Rapids, IA. Which is in the N D of Iowa, more than has her fair share of the 851 enhancements.

Seems like it doesn't take much from the district to get sent up the creek...

Posted by: MidWest Guy | Aug 22, 2013 9:38:03 AM

Carmen Hernandez --

"In my experience, 851 enhancements are used as a bludgeon to get defendants to plead guilty and agree to sentences that prosecutors want..."

My experience is that judges, at the Rule 11 proceeding, ask the defendant whether he is pleading guilty voluntarily and because he is, in fact, guilty of the crimes alleged. If the defendant even hesitates, the judge will not take the plea. Is it your experience that federal judges accept answers they know or have reason to believe are false? That is certainly not my experience.

"...no matter how flawed their evidence, how untrustworthy their cooperators, or who questionable their inferences."

But if these things are so, the prosecution is in a precarious position indeed at any trial. The defendant should be eager to show up the government's case for the house of cards it is. We have three regular commenters on this blog who did just that.

"Standard operating procedure it to demand the defendant agree to 5, 10, 100 kilos in relevant conduct or go to trial and face life."

Could you name a single prosecutor in one of your cases who "demanded" an amount for which there was not a reasonable (if not a massive) basis in the evidence? The reason I'm asking for a name is so that person could be reported for ethically very questionable conduct.

I doubt you'll give a name, but maybe you'll surprise me.

"As far as the judiciary, even if their hands are generally tied with statutory mandatories, for the most part they are willing accomplices."

I don't understand your use of the word "accomplices" here. Does that mean that the judges abandon their impartial roll and becomes shills of the prosecution? I hope that's not what you mean, and if it is, you and I have been in very different federal courts all these years.

"Few exercise the discretion at their disposal in the interstices between mandatories and maxima."

What I think you actually mean is that they don't cut the defendant the biggest, fattest break they possibly could under the law. But that is a different thing from a "failure" to exercise discretion. Have you considered the possibility that the judge might actually conclude, after thoughtful consideration, that something other than the lowest available sentence might be warranted by the evidence?

It's true that sentences at or very near the rock-bottom minimum of the guidelines are standard fare in federal court, but that does not mean either (a) that when it's something above that, the defendant has been dealt with unfairly, or (b) such low sentences are "due" the defendant under a sort of adverse possession theory.

"Indeed, it is the rare judge that doesn't sanction the bludgeon by "punishing" the defendant who bucks the system and dares to take the case to trial."

As you know better than practically anyone, the acceptance of responsibility adjustment is a reward, not a punishment. C'mon, Carmen. This issue has been litigated hundreds of times over a quarter of a century, and if the defense side has ever won a single case, I never heard of it. At some point, isn't the right thing to do to accept uniform precedent?

I might add that rewarding defendants for settling the case with a plea long, long predated the SRA.

"As long as the jury convicts on any count..."

It's worth remembering here that the jury convicts the defendant because the EVIDENCE of his behavior shows 12 people, unanimously and beyond a reasonable doubt, that he's guilty.

"...the defendant loses. That is why so few federal cases go to trial."

The reason so few defendants go to trial is that they are ice-cold guilty on the evidence, they know it, their lawyer knows it, and they're going to get a better deal -- often a much better deal -- by bargaining.

I would happily say that under oath and, as you know, I give my real name here. (As, commendably, you do as well).


Posted by: Bill Otis | Aug 22, 2013 10:18:26 AM

Rock bottom Federal sentences are grossly way to high.. Generally about 50% too high...
They need to drop all the little triggers and concentrate on what this case is about, not miniscual
things that happened historically...THATS part of whats wrong with the Feds..I am not a liberal or even close..
I may be a pain in the Posterior and other things, but far from a liberal...or an extremeist either..
Lets do things reasonable.. Govt is not reasonable nor even half way close..
Of coarse this is just my opinion, even though I don't sign my name..

Posted by: MidWest Guy | Aug 22, 2013 11:01:03 AM

MidWestGuy --

There is a reasonable discussion to be had about adjusting WHERE the minimum should be set. There is no reasonable argument that Congress can never, ever say to judges that, for some serious crimes, a certain minimum is as far as you're going to be allowed to go.

Would you say that a Congressionally-imposed mandatory minimum of one year's imprisonment for premeditated, first degree murder should be banned?

If not -- and I strongly suspect you would not be for banning a mandatory minimum like that -- then you agree with the CONCEPT of Congressionally-imposed mandatory minimums.

Posted by: Bill Otis | Aug 22, 2013 11:12:16 AM

Nope, I donot believe in mandatory enhancements based on triggers in ones history.

My problem is that federal rarely varies downward, but upwards is auto stamped.
It's a 2 way street. Good time days should be 40 pcnt of sentence.

Posted by: MidWestguy | Aug 22, 2013 6:16:15 PM

I'm not talking about enhancements. I talking about baseline sentences.

Are you saying that Congress should not be able to impose a one year mandatory minimum for premeditated first degree murder?

Posted by: Bill Otis | Aug 22, 2013 6:26:41 PM

I'm not biting on that one Bill..If I say yes then you say, well see you do believe in Mandatory Mins...I know you are talking baselines.

But if we are going to have a system that has tremendous enhancements, then we also have to acknowledge and give variances without having to be saint like. The standard for a variance is so high, you wouldn't be in court if you qualified...

In some ways we are on the same track, but the one you are on tends to Railroad defendents out of their lives real fast..

851 needs to be for the guy on that TV show, Breaking Bad type guys..
Other than that, the other MM need to hit the road as we for the avg guy.


Posted by: MidWest Guy | Aug 23, 2013 10:20:57 AM

Our backgrounds are way too far apart to agree on a matter like this that you were in the thick with and still are...

But I still think that the same boys/girls need to go away for a spell.
Need a good opportunity to advance their skills and help in doing so after wards if they so choose...I know many wouldn't, which is ok..
Or some would just for the exstra privledges it bestowes.. They could jump out of line fast and easy also...Then the hammer comes down..

Also can't make things so tight that the person, just cannot have a future...If not on the outside, it a a high security, not the way to go...LOnger the time, higher the security.. Understand all of that..

Posted by: MidWest Guy | Aug 23, 2013 11:30:37 AM

Our biggest problem is the FINAL check on the justice system has failed compltely!

the Jury!

When your on a jury once you hear all the evidence and you walk into that jury room your supposed to ask yourself these questions

Did the individual comit the crime charged. Yes or No.

Next question

Was the law defendant was charged under fair and reasonable? Yes or No.

next question

Was the law the defendant was charged under applied fairly and reasonably in this case. Yes or No!

If you can not answer YES to all three. Verdict is NOT GUILTY!

That would end a lot of this. A law is useless if you can't get a conviction!

Posted by: rodsmith | Aug 23, 2013 11:29:49 PM

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