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December 5, 2013

Remarkable new HRW report details massive "trial penalty" due to mandatory minimums in federal system

2013-US-plea-graphicAs highlighted in this press release discussing a new important report, in federal courts "drug offenders convicted after trial receive sentences on average three times as long as those who accept a plea bargain, according to new statistics developed by Human Rights Watch."  Here is more from the press release about the report and its findings:

The 126-page report, “An Offer You Can’t Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty,” details how prosecutors throughout the United States extract guilty pleas from federal drug defendants by charging or threatening to charge them with offenses carrying harsh mandatory sentences and by seeking additional mandatory increases to those sentences.  Prosecutors offer defendants a much lower sentence in exchange for pleading guilty.  Since drug defendants rarely prevail at trial, it is not surprising that 97 percent of them decide to plead guilty.

“Prosecutors give drug defendants a so-called choice -- in the most egregious cases, the choice can be to plead guilty to 10 years, or risk life without parole by going to trial,” said Jamie Fellnew, senior advisor to the US Program at Human Rights Watch and author of the report.  “Prosecutors make offers few drug defendants can refuse.  This is coercion pure and simple.”...

In one of hundreds of cases Human Rights Watch reviewed, Sandra Avery, a small-time drug dealer, rejected a plea of 10 years for possessing 50 grams of crack cocaine with intent to deliver. The prosecutor triggered a sentencing enhancement based on her prior convictions for simple drug possession, and she was sentenced to life without parole.

In addition to case reviews, the report is also based on numerous interviews with federal prosecutors, defense attorneys, and judges.  It also includes new statistics developed by Human Rights Watch that provide the most recent and detailed measure of what the report calls the “trial penalty” -- the difference in sentences for drug defendants who pled guilty compared with those for defendants convicted after trial.  The trial penalty is, essentially, the price prosecutors make defendants pay for exercising their right to trial. “Going to trial is a right, not a crime,” Fellner said. “But defendants are punished with longer sentences for exercising that right.”

Prosecutors are able to impose the trial penalty because judges have been reduced to virtual bystanders in cases involving mandatory sentences.  When prosecutors choose to pursue mandatory penalties and the defendant is convicted, judges must impose the sentences.  They cannot exercise their traditional role of tailoring sentences to each defendant’s conduct and culpability and of making sentences no longer than necessary to serve the purposes of punishment....

The new statistics Human Rights Watch developed for the report, based on raw federal sentencing data for 2012, include the following:

• The average sentence for federal drug offenders who pled guilty was five years, four months; for those convicted after trial the average sentence was sixteen years.

• For drug defendants convicted of offenses carrying mandatory minimum sentences, those who pled guilty had an average sentence of 82.5 months compared with 215 months for those convicted after trial, a difference of 11 years.

• Among drug defendants with prior felony convictions, the odds of receiving a sentencing enhancement based on those convictions was 8.4 times greater for those who went to trial than for those who pled guilty.

• Among drug defendants with a gun involved in their offense, the odds of receiving the statutory gun sentencing enhancement were 2.5 times greater for those who went to trial than for those who pled guilty.

December 5, 2013 at 11:18 PM | Permalink

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Comments

1. It is truly astounding that something like this could appear without once mentioning that the Supreme Court approved exactly this practice decades ago in Bordenkircher v. Hayes. The deciding vote in that case was cast by that well-known fascist, John Paul Stevens.

2. Only slightly less astounding is the fact that the article never claims that the guilty-pleading defendants were actually innocent.

There is a reason for this. They aren't. If they had gone to trial, they would have been toast -- which is, of course, the reason they didn't go to trial.

3. If the "trial penalty" is so God-awful, it must be unconstitutional, right?

WRONG. The "trial penalty," previously known as the "pleading bonus" has been challenged as unconstitutional, what, a thousand times? Anyone care to guess how many times the challenge has succeeded?

Right you are.

This HRW article is worse than amazingly biased. It's intentionally dishonest.

Posted by: Bill Otis | Dec 6, 2013 3:17:36 AM

Bill, the fact that SCOTUS has found constitutionally permissible a system that we now know, via this report, functionally threatens to add 10+ years to a prison sentence for many drug defendants if/when they exercise their trial rights does not mean either (1) that such a system is fair and effective as a policy matter, or (2) that federal prosecutors should be eager to to preserve every aspect of this system.

Because, Bill, you often advocate for justice and sentencing consistency and also often tout the constitutional right to a jury trial, let me ask you (and/or others) the basic POLICY question that this report's data necessarily poses:

Do you think it is a virtue or a vice that the current federal criminal justice system operates in a manner that, on average, serves to add 10+ years to a drug defendant's prison sentence if and when he exercises his right to a jury trial?

Posted by: Doug B. | Dec 6, 2013 6:30:44 AM

If the defendant is guilty, it is the plea bonus that is most outrageous.

The trial penalty is disturbing only for the innocent defendant. I have set out some tactics to scorch the earth on behalf of the innocent defendant. The defendant may have to move for these pro se. The defense attorney likely once was a prosecutor and a friend of the other side. The defense attorney owes his job to the prosecutor and not to the highly fungible client. The defense lawyer will not zealously defend any old defendant, a stranger, against friends in the prosecution. Ask for e-discovery of all work and personal computer, looking for an improper motive. If the judge rules adversely, demand e-discovery on the judge (never done in history). File ethics charges generating multiple investigations about every single improper utterance or slowness in sharing evidence. Always play the race card, even if the other side has the same race.

The sole friend of the innocent defendant in court is the jury.

Posted by: Supremacy Claus | Dec 6, 2013 6:45:41 AM

I do agree with Supremacy here on a point...the jury (and my RETAINED attorney) were my only friends, when I, an innocent person, went through my Federal trial in 2011. My retained attorney often tried to talk the prosecutor into dropping my charges to no effect.
At trial, my attorney and I agreed that the Gov had not met their burden at the end of the prosecution's case, but the Judge would not give me a Rule 29. She was going to let it go to the jury.
A further scary thing that happened is that the Jury foreman read "Not Guilty" to the first of 12 counts, the conspiracy count...then started reading "Guilty" "Guilty". I felt the world start to spin...and grabbed my attorneys arm. "What's happening?", I asked, horrified.
Then, the foreman (and I'm not kidding!)---said..."Something is wrong here. We need to go back." The jury all got up and filed OUT of the courtroom! Everyone in the courtroom waited for several minutes...then the jury all came filing back in...and the foreman started reading..."This is our correction...on count (whatever it was)..it's NOT guilty, count #, NOT guilty---for all the other eleven counts.
When I got the jury sheet back, it was actually marked "Guilty" on 11 of the 12 counts, and then there was a Giant "X" through that, and then there were check marks on "NOT Guilty".
After waiting, as an innocent person, for more than 2 years for my day in court (since being identified as a Federal target) and going through a three week trial, you can certainly feel the power that is the jury of 12 people. There is nothing like it. Even if they scared me silly there for a moment.
But so very few defendants today arrive at that moment in court. The stakes are so very high...what if the trial goes wrong?
In my case, I had the confidence I needed because I KNEW my attorney was working very hard for me. He was a person I selected, and a person I could work with. It seems like very few people get that on criminal cases.
My co-defendants who also went to trial were not so lucky...and I FIRMLY believe they suffered "the trial penalty" at sentencing for exercising their rights. They are on direct appeal. For at least one of them, I do think the "trial went wrong"---and the price may be paid permanently (by serving a long sentence)...because winning on appeal is also a very uphill battle!

Posted by: folly | Dec 6, 2013 9:04:14 AM

Folly:

There are NEVER bad, wrongful convictions, only erroneous acquitals by obfuscating defense lawyers. Also Sprach Bill Otis.

The budget of the DOJ and all similar programs should be cut by at least 80%.

Posted by: albeed | Dec 6, 2013 9:44:55 AM

Doug --

I think it cannot intelligently be assessed as a virtue or a vice because justice cannot effectively be evaluated in the aggregate. The only question to ask is: Is the outcome in Case A just, considering all the circumstances? Then you do the same for Case B, and C, etc.

Posted by: Bill Otis | Dec 6, 2013 11:00:10 AM

"Do you think it is a virtue or a vice that the current federal criminal justice system operates in a manner that, on average, serves to add 10+ years to a drug defendant's prison sentence if and when he exercises his right to a jury trial?"

Except...it's not really "adding" ten years, right? The sentence is what it is. A defendant who pleads gets a reduction in what would otherwise be the normal sentence. We could eliminate the "trial penalty" by not offering sentence reductions to anyone who pleads. But if that doesn't satisfy you, then your real objection is not to the disparity in sentences for those who plead vs. those who don't. You just want shorter sentences across the board. That's fair enough, but let's all be honest about what you're really arguing for.

Posted by: anon | Dec 6, 2013 11:04:02 AM

To make the criminal defendants and their attorneys happy, we should just outlaw plea bargaining in the federal system. Oh wait, that will not make the criminal defendants and their attorneys happy. Why? Because they are the ones almost always knocking on the AUSA's door begging for a plea deal. Why? Because they know (almost 95% of the time in federal drug cases) that their client is guilty as sin (his voice is all over a Title 3 wiretap and he had two kilos in his trunk), and they know their client will be (rightly) convicted at trial. If we outlaw plea bargaining and require every federal criminal defendant to plead as charged or go to trial, then there won't be a "trial tax." Every federal criminal defendant with qualifying prior convictions will get mandatory life, every federal criminal defendant who uses a firearm during a drug crime will get the 924(c) consecutive mandatory minimum stacked on his drug sentence. Period. No discussion. The simple fact that nobody wants to talk about (except Mr. Otis) is that these plea deals (in federal court where the drug cases are usually air-tight) almost always are acts of leniency that benefit the criminal defendant. There is a really easy way to avoid spending the rest of your life in prison: stop committing crimes.

Posted by: Go to trial | Dec 6, 2013 12:52:16 PM

This discussion is depressing. The point Doug is making is pretty easy: Assuming (1) every defendant is guilty, which is safe to do on a sentencing blog (this is not the Innocence Project), and (2) every defendant has a constitutional right to trial, is it good policy and practice that those who forfeit their right to trial get such an enormous reduction in their sentence? Why is this difficult? Assume two defendants were part of the same conspiracy. One agreed to cooperate and was indicted on just one count and received three years.. The other co-conspirator, with the same role and culpability, chose to exercise his constitutional right to a jury trial, was indicted on 10 counts and received 10 years. I buy the idea that acceptance of responsibility merits some credit. But does a good system provide for such disparate treatments for similar offenders based solely on the decision to exercise a constitutional right? Is efficiency that important a goal? That this happens every day is undeniable so there is little to debate on the facts. The question is simply is that a just outcome or an unjust outcome? The only really question, it seems to me, is the longer term one: given the way this system - and let me say this both easy because too much is being made of the distinction: given the way the system rewards the forfeiture of the constitutional right OR punishes the exercise of the constitutional right - does that system chill the exercise of that fundamental right? And, if you don't think so, what level of reward/punishment for pleaders/trial seekers do you think would amount to a chilling effect?

Posted by: Thinkaboutit | Dec 6, 2013 1:07:05 PM

Bill, you say "justice cannot effectively be evaluated in the aggregate. The only question to ask is: Is the outcome in Case A just, considering all the circumstances? Then you do the same for Case B, and C, etc."

I largely agree that sentencing outcomes should be assessed case-by-case based on all the circumstances, but that is also why I generally do not favor mandatory sentencing schemes that claim benefits/virtues in seeking sentencing uniformity or consistency for its own sake.

Often the purported goal/mission of mandatory guideline systems and mandatory sentencing statutes, which it seems you often advocate and/or defend in this space and lots of other places, is to foster such "aggregate" consistent justice. Moreover, as the federal defense bar often complains, the problem with any federal sentencing mandate -- whether in a guideline or statute -- is that it orders judges that, when tasked to impose just sentences, they are NOT allowed to "consider[] all the circumstances" that you now say is essential to justice in Case A and Case B and Case C.

In other words, your notable effort to avoid answering my question appears to contradict all your vigorous and copious advocacy for mandatory guideline systems and mandatory sentencing statutes in the federal system. If you really do not believe sentencing patterns can be "evaluated in the aggregate," how can you complain about sentencing disparity? Even more importantly, Bill, if you really believe that sentencing justice calls for "considering ALL the circumstances," in Case A and in Case B and in Case C, how can you advocate for mandatory sentencing schemes that, necessarily, limit what circumstances can be considered by federal judges at sentencing?

Sadly, Bill, all that is clear in your comments so far is how eager you are to avoid admitting that the significant stories/patterns here --- which are ultimately stories about the real-world consequences of modern extreme federal prosecutorial power and discretion and federal sentencing severity --- should be deeply worrisome to EVERYONE who really cares about justice for criminal defendants and/or who really cares about the constitutional right to a jury trial.

If you admit that you really only care about crime rates and prosecutorial power, Bill, and in fact do not really care about justice for criminal defendants or the constitutional right to a jury trial, then your strong disaffinity for this HRW report is understandable. But if, as you have claimed many times before, you really DO care about justice for criminal defendants and the constitutional right to a jury trial, then I think you should join my efforts to reform the modern federal sentencing system rather than just shooting the HRW messenger.

Posted by: Doug B. | Dec 6, 2013 2:06:59 PM

Think: The constitutional right to a jury trial is just that - a constitutional right. However, that right comes with no guarantees about any particular outcome. To illustrate this, I will turn your example on its head by changing only a couple of words:

Assume two defendants were part of the same conspiracy. One agreed to cooperate and was indicted on just one count and received three years.. The other co-conspirator, with the same role and culpability, chose to exercise his constitutional right to a jury trial, was indicted on 10 counts and acquitted. Does a good system provide for such disparate treatments for similar offenders based solely on the decision to exercise a constitutional right?

Posted by: C | Dec 6, 2013 3:13:20 PM

If the complaint is against mandatory minimums making penalties too draconian (and giving prosecutors too much discretion), I think it's valid. However, I don't think it can be as simple as taking a bonus for not going to trial and making it a penalty for not taking the plea. Abolishing the plea bargain system would make it more equitable for a defendant faced with that Hobson's Choice, but I don't think it'll make the system more fair overall. It'll also dramatically increase the backlog, which would increase the incentive for innocent defendants who can't make bail to take pleas to get out of prison simply because they've been in too long. I can't see that being more equitable.

Posted by: Erik M | Dec 6, 2013 4:01:27 PM

C, you are confusing the issue addressed by HRW in its report. They are talking about sentencing disparity where two CONVICTED and guilty individuals receive wildly different sentences solely because one chose to go to trial. In the case of acquittal, the government is not sanctioning the disparity.

Posted by: Thinkaboutit | Dec 6, 2013 4:24:11 PM

Doug --

To answer one part of your comment just briefly. You say: "... if as you have claimed many times before, you really DO care about justice for criminal defendants and the constitutional right to a jury trial, then I think you should join my efforts to reform the modern federal sentencing system rather than just shooting the HRW messenger.

I want to reform the post-Booker system, just not in the way you do. Last time I looked, disagreement about what the reforms should be is permitted.

The reason I "shot the messenger" is that the messenger is being appallingly dishonest. If I had a student writing a paper on the unfairness of federal plea bargaining on account of the prosecutor's being able to hammer you with more serious charges, and that paper intentionally omitted to discuss or so much as mention the governing Supreme Court case approving the current paradigm, I don't know whether I'd (1) just give it an F, or (2) refer the student to the honor council.

If, in the practice of law, a judge caught a lawyer doing such a thing, the lawyer would be done in that courtroom, and properly so.

Posted by: Bill Otis | Dec 6, 2013 10:15:21 PM

The goal of mandatory sentencing was not to grow lawyer technical consistency. It was to take it from the hands of judges, and to increase their length, to incapacitate, to reduce the massive criminality of the 1970's and 1980's, 100% the fault of the lawyer profession. Although fictional, Prof. Berman can watch the Dirty Harry series to grasp the extreme frustration of the public, and the verge of the revolt against the judges of this country. Ultimately, mandatory sentences were to save the judiciary from the total wrath of the public.

Lawyer Speak: "...you really DO care about justice for criminal defendants and the constitutional right to a jury trial, then I think you should join my efforts to reform the modern federal sentencing system rather than just shooting the HRW messenger."

Translation: "Get back in line, and protect lawyer employment. Victims be damned. The HRW messenger is the lawyer full employment advocate. Victims be damned."

After law school indoctrination, the lawyers are no more able to grasp the real meaning of their advocacy, than a fish in a sewer can understand the worlds of the land and air above.

Prosecutors still owe their jobs to the criminals, will lose them if it totally eradicated, as it should be if the situation were normal, and not the sicko state of today. They are government employees. They want bigger government, not less crime. They will crush what works to eliminate crime completely.

Where the lawyer lives, in suburbs only 5 mile from the worst ghettos, the death penalty is at the scene, with the police blasting, and no excessive force litigation. Then in the ghetto, the public tries to stop crime itself, because the agents of the prosecutors, the worthless police thugs, do not bother to show up. They destroy the citizen trying to stop crime. Despite the George Zimmerman verdict, not guilty, would anyone sane in this audience ever get involved in an ongoing crime? Caring citizens have been totally deterred by the Zimmerman experience.

Thank the lawyer, including the pro-criminal, criminal coddling, criminal lover prosecutor bar, for all crimes in the nation. Not lead levels, not poverty, not even bastardy. The lawyer profession is the total explanation for all crime in the nation.

Posted by: Supremacy Claus | Dec 6, 2013 11:19:18 PM

Bill: As you keep on shooting the HRW messenger, you keep reinforcing my view that you have no substantive response to the essential data message in this HRW report.

I remain quite eager to hear you or others attack the HRW data if you think it is inaccurate, and I am also eager to hear any substantive defense you might provide for a criminal justice system that, on average, adds 10+ years to a drug defendant's prison sentence if/when he exercises his right to a jury trial. (To his relative credit, Supremacy, seems to have a substantive view: he apparently thinks all lawyers and all jury trials protect criminals (and lawyer jobs) while hurting victims. Because I do not think you share SC's hatred for all lawyers and for jury trials, Bill, I assume you do not embrace his substantive response to the HRW report.)

You say, Bill, that you do not defend the status quo and do "want to reform the post-Booker system." I know that, but I have long thought your proposed reform was to make the FSG mandatory again in the hope of improving "justice ... in the aggregate" and in order to prevent federal judges (like Judges Weinstein and Gleeson and Graham et al.) at sentencing from being able to "consider[] all the circumstances." And you have been a leading public critic of AG Holder's suggestion that our current federal criminal justice system is broken and a leading opponent of the Justice Safety Valve Act's efforts to reform mandatory minimum statutes. In light of your prior advocacy in support of severe mandatory sentencing systems, I was TRULY STUNNED that you said in your second comment in this thread that "justice cannot effectively be evaluated in the aggregate" and that the justice of any sentencing outcome depends on "considering all the circumstances."

Bill, please understand that I am not trying to shoot you as a messenger: I believe very strongly that you are one of the most forceful and effective advocates for mandatory sentencing statutes and mandatory guidelines in the federal system. But, especially with more and more folks on the right criticizing mandatory sentencing statutes and mandatory guidelines --- especially in drug cases --- and given your frequently-expressed affinity for jury trial rights (which I share), I want to understand whether you are eager to preserve, or eager instead like me to try to reduce, the current a decade-long "trial penalty/plea reward" for the average federal drug defendant.

One main reason I strongly advocate for the Justice Safety Valve Act is because it should, over the range of cases, reduce the extreme severity of the trial penalty --- or plea reward, if you prefer that term --- and thus should enable more defendants to exercise their right to a jury trial without a (now very rational) fear they will functionally suffer twice as much punishment just for the (not blameworthy) decision to go to trial than for the (very blameworthy)decision to get involved in serious drug dealing.

I would be happy to take this discussion to another post and/or to see you put forward a post at C&C on this matter. I hope you fully appreciate that I understand and respect valid difference of opinion about the virtues/vices of mandatory sentencing systems. But I think that most folks --- on both the right and the left -- would believe it to be a vice that the current federal criminal justice system operates in a manner that, on average, adds 10+ years to a drug defendant's prison sentence if and when he exercises his right to a jury trial. And that is why I keep asking for you and others to explain whether you think this is truly a vice or rather a virtue of the federal sentencing status quo.

If you agree this is a vice, then we can move to a discussion about what reforms may do more good than harm to deal with this vice. But if you think this is a virtue --- e.g., because it gives prosecutors more leverage to encourage pleas and cooperation and allows the federal criminal justice system to continue growing and processing many more cases --- then the terms of any reform discussion will necessarily have to be much different.

So in the hope I might encourage you to answer rather than keep dodging what I had hoped was a simple question, I will ask again: BILL, Do you think it is a virtue or a vice that the current federal criminal justice system operates in a manner that, on average, serves to add 10+ years to a drug defendant's prison sentence if and when he exercises his right to a jury trial?

Posted by: Doug B. | Dec 7, 2013 2:47:00 PM

Prof. Berman misreads a bit. I support trials and jury verdicts, for innocent defendants, saying the jury is the only friend of the innocent defendant.

If I am angry, it is not about the trial penalty, but about the plea bonus. The defendant ends up with a fictitious charge, (why are so many lawyer concepts and doctrines fictitious, and always in the direction of helping criminals?)

Also, I do not hate lawyers, I love then. If the lawyer could listen to reason (Ha, a Scholasticist joke), he could earn 4 times as much and be held in 10 times the esteem of the public.

Off the mandatory guidelines, violent crime is increasing. What can be more substantive than getting carjacked or getting caught in a knockout game?

Posted by: Supremacy Claus | Dec 7, 2013 3:36:55 PM

Doug --

Your blog, and this thread in particular, are a wonderful resource. I expect to engage more fully on this subject in the offing.

You might have noticed that, over the last several days, I have not posted at all on C&C, and only very infrequently here.

That is because the pot in Congress is stirring, on precisely the Justice Safety Valve Act you mention. And you know how much I like to insert myself into stirring pots. I've been a busy bee.

I am happy to report that the JSVA will never see the light of day. Hold me accountable on that.

When I am able to say more on C&C and here, I hope to have found that you will have acknowledged that the HRW report is intentionally and importantly dishonest, and that said dishonesty throws into question every last thing it says.

I also hope that you will at last answer the question you've been ducking for weeks: If the crime rate is not the best single measure of the success of the criminal justice system, what is?

I don't ask this just to point out that those who have been ducking questions for weeks are not well positioned to require that others give answers on demand. I ask it more because it's an extremely important question: I don't see how agreement is ever to be achieved if we cannot preliminarily decide even on what success MEANS.

Posted by: Bill Otis | Dec 7, 2013 5:05:22 PM

Bill, I am pretty sure I have said often and consistently that VIOLENT crime rates are a very good and important measure of the success of a CJ system, but not the only important one. If it were, why not use the death penalty as punishment for every felony crime and incarcerate everyone for 30 years for the crime of failing to graduate to high school. Doing these two things alone would certainly lower the VIOLENT crime rate dramatically, but I think other values are important metrics, too, for a fair and effective CJ system in a nation committed to life, liberty and the pursuit of happiness.

I never meant to dodge you crime rate concern, and I am pretty sure I have said all this before. More importantly, I will readily say a reduced violent crime rate is a virtue of a CJ system and a critical measure of its success (which is why tend to favor the CJ systems of northern US states, which have much lower crime rates than southern US states -- and, of course, European CJ systems and nations with strict gun control tend to have much lower gun crime rates than in America).

Now it seems you are eager to brag about helping to kill a CJ reform bill that could help reduce a US trial penalty of a decade that triples sentences. Sound like you think severely punishing the right to trial is a virtue, not a vice, of our current system. If that is your view, fine, but just say so.

Posted by: Doug B. | Dec 7, 2013 6:09:44 PM

In CA we have a statute for committing certain violent crimes with a gun (PC 12022.53). In your typical robbery with a gun, the defense would do just about anything to get us to dismiss the mandatory 10 years for personal use of the firearm. Sometimes we did and those defendants would plead. For those that we declined to do so, most would go to trial because the minimum and the maximum were very similar. Call it a trial penalty if you want, but it really was declining to plea bargain that particular case or the defendant's unwillingness to accept a favorable plea bargain.

Want to solve this "problem"? Stop heavily incentivizing plea bargaining. How do we do that? The fact is no one within criminal justice wants to stop it. Many lawyers and (most) judges like it because trials are hard. Politician/prosecutors love it because it keeps the numbers up avoids high profile losses. Defendants like it because they can trade the constitutional rights of a trial and free counsel for less punishment.

I am a prosecutor in a large CA county homicide unit.

Posted by: David | Dec 7, 2013 6:10:00 PM

I assume that most people agree that there should be *some* disparity between the sentences of those who plead guilty and those who go to trial. I also assume that most people agree that it's a problem if the disparity becomes *too great*. Where that line is drawn presents a difficult question on which reasonable people can disagree.

The HRW report is potentially a laudable effort to shed light on where things currently stand. But its methodology seems to keep it from being as useful as it could be. The report seems to attribute the entire discrepancy in sentencing to the "trial penalty" / "pleading bonus." That is, the report appears to reason as follows: those who plead guilty get 5 years; those who get convicted after trial get 16 years; ergo the trial penalty is 11 years. (The report acknowledges in footnotes that this doesn't really follow, but it certainly seems to be the headline that the report is designed and expected to generate.)

The problem is that in many, many cases, the shorter sentence for the defendant who pleaded guilty reflects not just the "pleading bonus," but also the "cooperation bonus," which may be more significant. Again, I assume that most people agree that there must be some sort of cooperation bonus -- separate and distinct from just the pleading bonus -- to incentivize criminals to disclose information on things like where they got their drugs from, who they sold to, who they sold with, how frequently, in what quantities, how they tried to hide their crimes, etc., etc.

If the numbers were to show that the cooperation bonus accounts for, say, 9 years of the 11-year discrepancy, then I think we'd feel pretty differently about things.

I'd also note that defendants who plead guilty and those who go to trial may be dissimilarly situated in other ways. For example, someone who qualifies as an armed career criminal or career offender may be more likely to roll the dice at trial, because he knows that he'll receive a lengthy sentence under any scenario.

That's all to say that it would've been nice if the report had made more of an effort to really isolate and quantify the trial penalty / pleading bonus, because as it is, I think it's not as illuminating as it could be.

Posted by: GCW321 | Dec 7, 2013 6:11:55 PM

Can someone answer for me what I think is a simple question: why, in the federal system, does the prosecutor get to assert or waive the so-called mandatory minimum sentencing enhancement statutes? As I understand it, the disparity discussed in this report is largely a product of the fact that, in plea cases, the prosecutor declines to enforce that mandatory minimum. Why is that the prosecutor's choice? Should not such a mandatory minimum apply to every defendant or zero defendants, or should not the judge have the same power that the prosecutor does?

Posted by: Anon | Dec 7, 2013 6:20:24 PM

Doug --

Gads, do you think you might be getting overheated about this?

I do what I can to support what's left of the determinate sentencing system, you bet. And caving in to the Jack Weinstein's of this world and their aggressive, belligerent, arrogant, self-important, lawless, but mostly just very, very longwinded opinions carrying the flag for the grossest form of CP is something I will oppose. I will oppose it now and tomorrow, and I will do what I can to contain him and judges like him, because, in my view, they are abusive, ideology-oriented rather than facts-of-the-offense-oriented, and callous toward crime victims.

I am a citizen like any other and am entitled to petition Congress for a redress of grievances, in particular the prospect of going off the deep end to embrace Rand Paul's fantasy world. (In most other contexts, I think it likely that you would agree with me that it's a fantasy world). If that means that I use what little influence I may have as an aging ex-prosecutor and dog-eared part-time academic, sure, I'll use it. Just as I expect (and hope) that you would use your influence as a well-known and widely-read chaired professor.

I'll now try to respond on substance, although I'm sure it will be shorter than will satisfy you. You should be getting ready for the football game in any event.

As I have said, and you have largely agreed, it's very difficult to make aggregate judgments about what is just, since, in this country, we do not believe in "mass justice," whatever sinister thing that might mean.

As you have often and urgently noted, the system spends way too much money. Thus need to save money -- without doing injustice -- is great.

The most effective way to save money in the judicial system is for the parties to settle rather than try cases. This is true is civil law, where the huge majority of cases are settled instead of tried, and it is true in criminal law, where settlement over trial was the norm by a huge margin well before MM's or other aspects of determinate sentencing.

No one is denied a trial if he wants it, and two people who went to trial have posted on this thread. I can tell you as a long time practitioner in federal court, and would happily say under oath, that the reason the vast majority of defendants plead is that they are guilty as sin and know they're cooked if they go to trial.

It is true now, as it has always been, that judges reward defendants who plead. This is partly because it shows some degree of acceptance of responsibility, partly because it saves money, partly because the parties have agreed on it, and partly (let's face it) because it saves the judge work. With the exception of the latter factor, I see nothing wrong with any of this. Do you?

As you have said, I prefer trials. But I don't run the show, and we as a country are unwilling to spend enough to have anything like the majority of cases go to trial, so that is that. If, as is the case against my instincts, we view fiscal savings as so important (an idea I have seen pushed here at least a hundred times in the prison spending context), then there is nothing wrong with providing incentives to achieve them. The pleading bonus is one such incentive.

Has the incentive gone too far? I don't know. Since I prefer trials ab initio, I'm suspicious, and also biased, but whether 10 years or 8 years or 5 years is "too much" is something I have no way of measuring. In this, I am in the same boat with you in not being able to apply a quantitative ruler to what would make for "a fair and effective CJ system in a nation committed to life, liberty and the pursuit of happiness." Not everything is capable of quantification; indeed, the most important things in life aren't.

There is an ancient and wise doctrine in law called assumption of risk. The pleading bonus (or trial penalty, if you prefer) is well-known. A defendant who assumes the risk makes his own choice. You would need to talk to him and his lawyer, not me.

This is to say nothing of his choice from the getgo to try to make a fast buck doing something he full well knows is criminal. For many of these people, it's not the first time or close to the first time.

Finally (and again mindful that my answer here will not satisfy you in terms of its comprehensiveness (or much else)), I would point you to what in my view is the pretty refined view set forth by "GCW321" and "David" in the posts above this one. I also think "Go to trial" makes a number of good points.

Posted by: Bill Otis | Dec 7, 2013 7:06:23 PM

Doug --

I see that I forgot to note one important point.

No, I am not about to believe the HRW numbers, and it's not just that that organization doesn't even pretend to be neutral. It's that they're dishonest, at the minimum by accusing prosecutors of being thugs and extortionists without once mentioning that they are following decades-old Supreme Court precedent. Although you decline to acknowledge that this is dishonest (and scurrilous while I'm at it), it is sufficient for me to look elsewhere for objective information. Falsus in uno, as they say.

Posted by: Bill Otis | Dec 7, 2013 7:12:34 PM

I think a low crime rate is an important sign of a healthy criminal justice system, but it is certainly not the best. By best, I mean, a lower crime rate doesn't necessarily mean the system is optimal. I would say the same about traffic accidents. A law that banned all left-hand turns would dramatically reduce the accident rate, but I wouldn't defend such a regime as the best simply because the accident rate is lower. And, because crime gets to issues of life and death, let me give another, perhaps more relevant example: stricter air quality standards would reduce the number cases of childhood asthma and air pollution-caused deaths, but I wouldn't just the air quality laws by those that produce the least deaths or illnesses. The key - for traffic safety, air pollution, and, yes, crime - is finding the right balance. In my opinion, cost-benefit analysis can be helpful in this regard. To those who would say, as I am sure Bill might, that my position means I am tolerating more crime and openly advocating for more victims of crime, I would plead guilty. But I am consistent since I do the same analysis for other areas of government regulation.

Posted by: Thinkaboutit | Dec 7, 2013 7:49:34 PM

P.S. I think the Justice Safety Valve Act was dead the day it was introduced. As I maintained earlier on this blog, I think it was a marker. The debate was always going to focus on more incremental reform.

Posted by: Thinkaboutit | Dec 7, 2013 7:52:04 PM

Gads Bill:

Maybe you should be referred to the "pseudo-academic who does not pay attention council."

You state: "The reason I "shot the messenger" is that the messenger is being appallingly dishonest. If I had a student writing a paper on the unfairness of federal plea bargaining on account of the prosecutor's being able to hammer you with more serious charges, and that paper intentionally omitted to discuss or so much as mention the governing Supreme Court case approving the current paradigm, I don't know whether I'd (1) just give it an F, or (2) refer the student to the honor council."

Don't you think the HRW paper does discuss Bordenkircher without specifically mentioning it when it states:

"US constitutional jurisprudence offers scant protection from prosecutors who are willing to
pressure defendants into pleading and punish those who insist on going to trial. Courts do
not view defendants as unconstitutionally coerced to forego their right to a trial if they
plead guilty to avoid a staggering sentence. Nor do they consider defendants to have been
vindictively—that is, unconstitutionally—punished for exercising their right to trial when
prosecutors make good on their threats to seek much higher mandatory penalties for them
because they refused to plead. Finally, even when courts agree that prosecutors have
sought egregiously long mandatory sentences for drug offenses, they will not rule the
sentences so disproportionate as to be unconstitutionally cruel."

Posted by: ? | Dec 7, 2013 7:57:46 PM

Not overheated,Bill,just enjoying when the Wizard of Federal Prosecutors has to account for one of the most ugly features of the federal CJ oz.

Game Time

Posted by: Doug B. | Dec 7, 2013 8:20:18 PM

? --

If you think that some gauzy reference to "courts," followed by a loaded, acerbic description that does not even attempt to state either the holding or the reasoning of Bordenkircher, much less its name or any citation, is a "discussion" of that case, you go right ahead.

If a prosecutor pulled an analogous stunt in a brief, you'd be yelping about his dishonesty, wouldn't you? And for once, you'd be right.

What's so depressing about this is not so much the dishonesty than your claim of a RIGHT to be dishonest. I have come to expect the former from the defense side, but the latter is something of an innovation.

Posted by: Bill Otis | Dec 7, 2013 8:32:10 PM

Thinkaboutit --

"I think a low crime rate is an important sign of a healthy criminal justice system, but it is certainly not the best."

Then what is?

Posted by: Bill Otis | Dec 7, 2013 8:36:09 PM

Bill, I am not sure I am smart enough to know what the most important sign of a health criminal justice system is. It's probably something mealy-mouthed-sounding like ensuring that justice is done to the greatest extent possible. That would include a system that catches and punishes appropriately the guilty and exonerates without too much delay the innocent. I think we'd agree that our system overwhelmingly gets it right. We'd also agree that our system misses sometimes - some killers like OJ walk free and some innocents are wrongly convicted. It's a human system and thus fallible. But, because it's human and humans are fallible, and because what's at stake is so high - the personal liberty of the accused and, in some cases, the safety of the community - I favor the greatest number and effectiveness of checks and balances. If our Framers believed that achieving the lowest possible crime rate was the number one goal of the criminal justice system, I think they wouldn't have drafted the 4th, 5th, 6th, and 8th amendments.

Posted by: Thinkaboutit | Dec 7, 2013 9:06:14 PM

Bill:

"I think a low crime rate is an important sign of a healthy criminal justice system, but it is certainly not the best."

"Then what is?"

When Law Enforcement and Prosecutors are prosecuted for their criminal activity (they finally got Ken Anderson in Texas after how many years of pulling teeth) as are typical, unaffiliated defendents would be one more important sign of a healthy criminal justice system much more so than a low crime rate. Police typically have a free pass based soley on "their perceptions for their safety" (unless there is video footage at 10PM if "authorities" haven't already confiscated and destroyed the evidence). When typical federal defendents are afforded the same priveleges as Scooter Libby and Jack Camp.

Crime rates are defined and created by the State. You are a State bully defender par excellance! There are many more telling indicators of a healthy justice system than reported crime rates. We have protected political and union classes. Perhaps, stopping the continued bastardizion of the spirit of the Constitution which is "protected" (hah, what a word) by a dispproprtionate number of ex-prosecutors on the Supreme Court would help.

There is more than "Crime Rates" that defines a healthy society. However, even you have previously said that we are going in the wrong direction as a society. I say, we are going to hell in a hand basket and you are one of the leaders.

I hope these words are not over your head professor (small p for obvious reasons)?

Posted by: albeed | Dec 7, 2013 9:12:10 PM

Doug --

Every now and again I get nailed as the Rasputin of prosecutors, but I think you're the first to single me out as the Wizard.

I'm taking that as a compliment, I think, but Eric Holder seems not to agree. I get a few calls from one person or another in this town, but he seems to have lost my number. Drat.

Still, my bet is that you'll be in a chipper mood in a couple of hours. You might be behind right now, but The Ohio State University has Big Mo going into the third quarter.

Posted by: Bill Otis | Dec 7, 2013 10:13:35 PM

The population based Crime Victimization Survey is the sole valid, scientific measure of the crime rate of FBI Index felonies. It is Job One and Job Last of government, safety. There is no productivity, no real estate value, no human achievement until crime is controlled. In Fallujah before it was pacified, one spent all day on survival and on nothing else.

David discusses the place of the plea bargain today.

Problems.

1) 20 million felonies, 2 million prosecutions. So each prosecution must do the work of 10.

2) The adjudicated charge is fictitious. Post sentencing decisions, such as early release, should be based on the original indictment charge. While possibly wrong, it is taken from reality, not the world of fiction.

3) The innocence rate is intolerable. Bill has stated his argument for tort immunity of prosecutors. They should be liable not just for wrongful prosecutions, but for failure to prosecute resulting in damage to a future crime victim. Standards of professional due care would be used, not strict liability. I would like to hear whether David wants to preserve this privilege. It actually harms the specialty by failing to motivate improvements. It also justifies violent vendettas against prosecutors in formal logic. Torts are a substitute for violence. If true, then immunity fully justifies violence (the contrapositive of a true assertion is always true). Tort liability is good for you, as it is for everyone else.

4) Because crimes are so numerous, status crime should return. Incapacitate the person, prevent 10,000 serious crimes over the life of the crime career. That has the highest return on investment possible. The surest incapacitation is execution at the earliest age palatable to the public, preferably before the peak period of early adulthood, before age 18.

5) David, what are the crime rates where you work? Compare to those where you live. How are those ow crime rates where you live, lower than those of Switzerland or Japan, achieved?

Posted by: Supremacy Claus | Dec 7, 2013 11:01:58 PM

First I don't believe in a "trial penalty" and if someone could show proof of a prosecutor doing such I would happily line them up in front of a wall and shoot their ass for treason against the United States Constitution. But so far I've not seen any proof.

But I will happily give an example of a trial penalty that went the other way.

Here above me in Alabama they had the "Country Crossing" mess. a dozen state officers including a few senators and others were charged with a large number of crimes. Two trials later they pretty much walked. The only one who really got any time at all was the ONLY individual to become a witness for the state Mickey Gilley!

Posted by: rodsmith | Dec 8, 2013 12:36:02 AM

SC:

Without State Protection of individual rights, there is no safety! That people say that safety is government JOB 1 is not only ignorant, it is stupid. Safety at the point of a government gun is equivalent to safety at the point of a gun in Fallujah. Even a tyrant can keep you safe as long as you serve his needs. The same can be said of the "State" and their guns.

Life liberty and safety were not enumerated rights in the Declaration of Independence! All I ask is to be permitted to keep myself safe with the organizations I align myself with and to be permitted to keep tools necessary for my safety. When the state is the sole arbiter of "safety", there is no safety but incorrect, irrational politization of the concept of safety. Even tyrannies can provide safety for the correct political classes.

Posted by: albeed | Dec 8, 2013 1:00:47 AM

rodsmith, are you serious? The government did it to me: http://articles.washingtonpost.com/2011-10-16/opinions/35280183_1_abramoff-case-guilty-pleas-lighter-sentences

Read HRW's report. Even if you reject the aggregate numbers and calculations, there are real cases.

Posted by: Thinkaboutit | Dec 8, 2013 1:14:57 AM

Albeed. Safety comes first, then liberty follows. The list of FBI Index felonies is not controversial, is universally accepted as criminal conduct, and has no gotchas, no mala prohibita, no invalidated rules to oppress. Four of them are violent and occur 5 millioon times a year, with rates 6 times greater among black victims.

Ending these crimes allows children to learn in school, real estate values to go up in the downtown areas, people to strive. Allow a criminal in a school, and education can pretty much end, the same on a street, in an office. Please note the absence of drug possession or drug dealing, lying to a government official, miscellaneous sharp business practices. Do you find of these below controversial or oppressive?

Willful homicide
Forcible rape
Robbery
Burglary
Aggravated assault
Larceny over $50
Motor vehicle theft
Arson

Posted by: Supremacy Claus | Dec 8, 2013 3:53:21 AM

Hey Bill: I like thinking of you as the Wizard of Federal Prosecutors, because your voice booms and because the world of federal criminal justice has a Land of Oz quality (i.e., it has some magically wonderful features and some magically scary features). In addition, you are the Wizard, not one of the witches, because you seem always to mean well and also have no obvious magical powers other than the power of impressing others with your energies and insights. Also, I do genuinely consider you wonderful (though I wish your wonderful optimism about my football team had proved true, though I had always thought/feared the failings of opponents had allowed the extended winning streak).

Now that I have more time to thank you for your lengthy substantive response to my poking, I hope you might confirm or deny this summary account of what I see as your principle themes/claims: a "trial penalty/plea benefit" may be a necessary evil in a world of lots of crime and limited resources. AND perhaps it is really not all that evil because all who endure extra punishment for going to trial have been found guilty of committing serious crime and are in no moral position to vigorously complain about being subject to significant extra punishment relative to comparable defendants who admitted guilt and played nice with prosecutors after getting caught.

This is VERY helpful to me and largely replicates the reason I strongly endorse/embrace real-world CJ systems with some "trial penalty/plea benefit" (and also strikes me as the reason the Supreme Court considers a "trial penalty/plea benefit" to be constitutionally permissible). However, once one acknowledges --- as I am thinking you do --- that a "trial penalty/plea benefit" is a necessary evil, not a real virtue in and of itself, I think it is important to spend lots of time considering (1) how necessary it is for this penalty/benefit to be HUGE AND SEVERE in terms of years and years of deprivation of liberty (which is what it has become in the federal system), and (2) how evil it is that a few (some? many?) rational innocent defendants will decide to plead guilty because the punishment for going to trial and losing could be so much greater than the punishment merely for (falsely) admitting to a serious crime.

The reason I kept pushing you, Bill, to explain your views here is because I had always thought you did view a "trial penalty/plea benefit" to be more of a vice than a virtue, but a vice that had to be endured to serve other virtues in our system. Again, as I think is true in our discussion of the importance of crime rate and other CJ metrics, we largely agree on the basics of what makes for a fair and effective federal criminal justice system, just disagree on devilish details.

I stress this final point because it is one of the reasons I run this blog: I wish to highlight that vast majority of folks who think a lot about CJ issues --- even those on the far left and the far right --- tend to agree on the basics. (This is not true in other arena of modern robust public policy debate: I do not think the vast majority of folks those who fight over abortion or gay marriage or gun control agree on the basics.) Of course, agreeing on basics does not often reduce the heat in debates over the devilish details. But I think realizing their is agreement on basics can and should help elevate the respect debaters have for their opponents.

Posted by: Doug B. | Dec 8, 2013 10:04:16 AM

SC:

Let's just agree that we disagree.

Posted by: albeed | Dec 8, 2013 1:40:45 PM

I understand the practicality of plea bargaining, given the nature of the adversarial system, stemming from Scholasticism method of disputation, and totally devoid of scientific validation. We should give the inquisitorial judge a chance to ore its accuracy and efficiency.

The phrase, conflict of interest, is a synonym for, theft by an intelligent middle class person.

There is an inherent conflict of interest for the prosecutor in the plea bargain. His career, including future earnings as a defense lawyer depend on his won-loss record. So I offer a win to the prosecutor in exchange for a plea, I am bribing him and promoting his economic self interests. In return, the adjudicated charge will minimize my criminality and its consequences.

Posted by: Supremacy Claus | Dec 8, 2013 5:58:26 PM

I think you misunderstood me Thinkaboutit I didn't mean I don't think the trial penalty is happening. I was saying I don't think it's legal. Just like I don't think maxing someone's sentence to send a msg to others is legal. The courts job is to judge the case and individual in front of them and ONLY that case. Any individual in that case who can't do that should excuse themselves or be prepared to pay with their lives if caught.

I was just saying I saw no evidence it was being applied in this thread.

Personally I think it's time to can the plea bargain system. Either the gov can get off it's ass and put the resources to handle the cases they prosecute to the end or stop bringing so many damn cases. We have the same problem with GPS tracking now. Back in the good old days it took a shit load of officers to track someone 24/7 to it was used only on the most extreme and dangerous. Now with a 10 dollar unit or a quick phone hack they can track you forever! for NOTHING but pennies!

it became easier to do it. The plea system has done the same thing to the court system. They no longer have to get their shit together and focus on the major crimes that hurt or kill.

Posted by: rodsmith | Dec 9, 2013 2:20:51 AM

Sorry, rodsmith, I did misunderstand your earlier comment. Thanks for clarifying.

Posted by: Thinkaboutit | Dec 9, 2013 12:05:33 PM

Doug --

If my prognostications about football are as good as my prognostications about legislation, have no fear, you're in clover, the President will be signing the JSVA in short order.

I appreciate the many kind words in your comment. I'll try to be brief and to the point, unlike my earlier comment.

First, I believe in determinate sentencing and am thus adamantly opposed to the removal of its last pillar, that being MM's. I think determinate sentencing is both conceptually sound and successful in practice, in having helped to reduce crime.

Second, I believe the overall crime rate (including harmful though not violent crime), and not the imprisonment rate, is the single best measure of the success of the criminal justice system. I think the HUGE majority of laymen would agree with me. And, sure, the best measure is not the only important measure.

Third, I do not see an inconsistency in believing in assumption of risk theory (so far as it creates diminished standing for criminals to complain about sentences) and believing that the system is too tilted away from trials.

Fourth, and probably most directly relevant to your concerns, left to my own devices, I would not have plea bargains at all (and thus neither a "bargain benefit" or a "trial penalty"). I far prefer the only method designated in the Constitution for the resolution of felony charges, that being going to trial.

But no one is leaving me to my own devices. The country is up to its ears in debt, so every governmental system is looking to get its job done (more-or-less) on the cheap. Hence plea bargaining.

What people should understand is that plea bargaining is first an foremost an economic tool. We do it because the overwhelming consensus is that can't afford the more involved and expensive procedures that are (and accompany) trials. But like almost all other means of cost-cutting, it has downsides. The main downside from the prosecution's point of view is that, in the bargain, much of the defendant's potential (and earned) liability is given away. From the defendant's point of view, it's the surrender of the longshot chance of an acquittal (Casey Anthony came up roses, for her, on that one).

Given that I am not going to get my wish for more trials, and given, as "Go to trial" has noted, that defense lawyers would be the first to howl if prosecutors refused to plea bargain, the question is: What then do we make of the bargain benefit/trial penalty?

I am uneasy in giving an answer. I think I would agree with you that it's a necessary evil, if I could figure out the concept of "necessary evil," which I have never been able to do. If something is indeed necessary -- if we truly can't live without it -- then I doubt it can be "evil" to go ahead and do it.

Mind you, I understand the concept of "necessary evil" and I use the phrase myself, but the concept is logically problematic.

So, as things stand, we are stuck with plea bargains, and, as the pressure to save $$$ becomes more and more intense, the incentives to cases settled (by whatever name those incentives are called) will stick around, if not increase.

At all events, I think that's all I can say for now, and I apologize for the points I may have missed in this (as it turns out) not so brief answer.

Posted by: Bill Otis | Dec 9, 2013 1:45:14 PM

This is all very helpful, Bill, and I suspect a lot of defense lawyers who would prefer to be true trial lawyers would join in your advocacy for taking everything to trial. Notably, we seem to find the resources for having not only one, but two, jury trials if/when the state want the sentence of death and the killer only wants LWOP. (Think of all the resources Jodi Arias is sucking away by virtue of her trial rights, despite the likelihood she will get a functional LWOP no matter what her official sentence is.)

So, to use better terms and capture your views, you think plea bargains are a necessary vice in a too-busy federal criminal justice system, and one that only the reality of limited resources demands. I largely share this view, and it is one big reason I oppose the drug war (especially as prosecuted by the feds when we have only intrastate dealing). Drug prosecutions of local drug dealers have driven up federal docket pressures, without obviously reducing drug supplies or related drug harms. And, notably, it is federal drug cases in which we see so many worrisome plea bargains and their disparate sentencing impact to be so profound as reported here by HRW.

This all leads me to wonder what your true values are in this setting. One great way to have the resources that could mean many fewer pleas and more trials (relatively speaking) in the federal system would be to have many fewer drug crimes prosecuted in federal court. Do you support such a move? If not, why not? Do you really think it would be tragic --- and impact "the overall crime rate" how you define it --- if the feds only prosecuted 4000 instead of 7000 marijuana cases each year (according to the USSC, that's how many marijuana sentences were handed down in FY2012) or only 5000 instead of 10,000 crack/powder cocaine cases each year?

Posted by: Doug B. | Dec 9, 2013 2:46:36 PM

From Bill Otis (emphasis mine): "It is truly astounding that something like this [report] could appear without once mentioning that the Supreme Court approved exactly this practice decades ago in Bordenkircher v. Hayes."

From the report, pp. 114–15 (footnote call numbers deleted):

In the infamous 1978 case of Bordenkircher v. Hayes, the Supreme Court gave a green light to prosecutors to secure pleas through inducements or threats—including by threats of far greater punishment for exercising the right to trial. In that case, Paul Lewis Hayes was indicted for a forged check in the amount of $88.30, an offense punishable under Kentucky law by two to ten years.

The prosecutor offered to recommend a sentence of five years if Hayes agreed to plead
guilty. He also threatened Hayes that if he would not plead, the prosecutor would indict
under Kentucky’s Habitual Offender Act, which would subject Hayes to a mandatory life
sentence because he had two prior convictions. Hayes refused to plead, the prosecutor
indicted and convicted him as a habitual offender, and Hayes was sentenced to life in
prison. The Supreme Court brushed off concerns that prosecutor threats to file enhanced
charges during plea bargaining might amount to coercion: “Although a defendant presented
with the risk of a more severe punishment faces a difficult choice, this is a permissible
reality.” The Supreme Court has never recognized that the voluntariness of a defendant’s
guilty plea may be vitiated because of the penalty threatened by prosecutors.
In Bordenkircher, the Court also ruled that a prosecutor would not violate due process if he
adds additional charges, “solely to punish a defendant for exercising a constitutional or
statutory right.” As one court has stated, “actual retaliatory behavior is acceptable”
during plea bargaining. Or, as another concluded, “As a general matter, prosecutors may
charge and negotiate as they wish.” Courts will not find unconstitutional vindictiveness,
“even assuming … the government sought the superseding indictment in retaliation for
[the defendant’s] persistence in a plea of not guilty.”

Posted by: Michael Drake | Dec 9, 2013 8:52:11 PM

Michael Drake --

You say, quoting me: "It is truly astounding that something like this [report] could appear without once mentioning that the Supreme Court approved exactly this practice decades ago in Bordenkircher v. Hayes."

Of course I never used the word "report" in the sentence you quote. YOU did that in your brackets.

But that is not what I was talking about. What I was talking about by using the word "this" was the ENTRY (which immediately preceded my comment), not the 126-page paper to which the entry refers.

Still, I'm glad you're a mind reader, even if you get it wrong. Must be a useful skill if you ever get it right.

(If a point be made of it, however, the HRW report itself was ALSO dishonest in burying the governing Supreme Court case at pp. 114-115 of a 126 page report, you bet. If the prosecutor pulled a stunt like that, you'd have a field day with it in your reply brief).

Posted by: Bill Otis | Dec 9, 2013 10:38:34 PM

had never read this before!

"In the infamous 1978 case of Bordenkircher v. Hayes, the Supreme Court gave a green light to prosecutors to secure pleas through inducements or threats—including by threats of far greater punishment for exercising the right to trial. In that case, Paul Lewis Hayes was indicted for a forged check in the amount of $88.30, an offense punishable under Kentucky law by two to ten years.

The prosecutor offered to recommend a sentence of five years if Hayes agreed to plead
guilty. He also threatened Hayes that if he would not plead, the prosecutor would indict
under Kentucky’s Habitual Offender Act, which would subject Hayes to a mandatory life
sentence because he had two prior convictions. Hayes refused to plead, the prosecutor
indicted and convicted him as a habitual offender, and Hayes was sentenced to life in
prison."

Looks like a text book case of fucking blackmail to me. I think the govt fucktards on the USSC are living in a dream world. time to wake their asses up and bring them back to the real world. where if anyone but a govt stooge did this they would get their heads blown off!

Yes bill I know that they have the authority to charge him as a habitual offender based on his record. But they didn't do that did they! They instead used that info to try and BLACKMAIL him to do what they want! Sorry I think any govt officer involved in this type of shit should be shot for treason to their oath of office!

Posted by: rodsmith | Dec 10, 2013 12:58:54 AM

"What I was talking about by using the word 'this' was the ENTRY..."

If so, then your complaint was frivolous: There is nothing remotely "astounding" about the editorial judgment that Bordenkircher (1978) is beyond the scope of a press release about a report about the contemporary (2013) empirics of the trial penalty. The press release nowhere even mentions the constitution. And the report itself notes on page 3 that "US constitutional jurisprudence offers scant protection from prosecutors who are willing to pressure defendants into pleading and punish those who insist on going to trial."

Posted by: Michael Drake | Dec 11, 2013 6:29:25 PM

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