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October 10, 2004

Good to be home, with more perspectives

I am back home on East Coast time, and still giddy from experiencing the wonderful Stanford Roundtable conference organized by Professor Robert Weisberg. The plans are to have some written product from the whole conference in the near future (perhaps for the Federal Sentencing Reporter and/or the Ohio State Journal of Criminal Law), so that those not able to attend can get a sense of the Blakely ground so effectively covered.

And the long plane ride home gave me a chance to think through more fully the offense/offender distinction that I believe provides a sound and appropriate way to conceptualize (and narrow) the import and impact of Blakely. I hope to have a chance to write up more fully (and more clearly) the ideas I started to set out here last night.

One very interesting insight I returned home with concerns the fact that it seems most legal academics writing about sentencing are former federal prosecutors or at least spent some time in the U.S. Department of Justice. At the Stanford conference, I discovered that Professors Alschuler, Bibas, Bowman, Chanenson, Klein, Little, Miller, Richman, Stith, and Wright all had either been federal prosecutors or worked for DOJ. Though these professors' views were certainly not uniform, they all were clearly influenced by their prior professional service. And confirming that biographies influence perspective, in this audio piece from NPR Eric Vos, an assistant federal defender in Pennsylvania, reveals how at least one defense attorney views the operation of the existing federal sentencing guidelines.

October 10, 2004 at 09:16 PM | Permalink


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This past Sunday I heard Mr. Vos's comments on the Guidelines and his concern that prosecutors have too much discretion. If I remember correctly, he stated that prosecutors should not have this discretion and that judges, who are trained to exercise discretion should be the ones exercising discretion. Like Mr. Vos, I am also an Assistant Federal Public Defender, but I do not see the prosecutors as the boogeyman that he does. More often than not, my clients benefit from prosecutors not bringing charges that they could bring. As noted frequently, prosecutors not alone charge bargain, but they also fact bargain, which can result in a lower guideline range. What, pray tell, is wrong with that? The alternative is to charge the defendant with everything possible and include every rotten fact that exists, which is what the infamous Ashcroft memorandum orders, and then rely on a benevolent judge. I, for one, would just as soon not have the government charge my client with everything possible and I do not want the government including all of the "gory" facts that could possibly increase my client's guideline range. The system is bad enough now in that a client, based on relevant conduct, cannot truly know what the sentence will be. It can only get worse if we have to rely on lagniappe, as Justice Scalia noted at oral argument. We need the Guidelines, but we need them "tuned-up," which is what an application of Blakely will do. That is, if my client trasported 30 kilograms of cocaine, put it in the Indictment. Do not put just five kilograms and then rely on some snitch or mulit-level hearsay to "find" an additional 100 kilograms, leader/oraganizer, intricate scheme, etcetera, etcetera. If it is in the Indictment, my client does not have to worry about probation "finding" relevant conduct from some ambiguous source or making some judgment call to determine other sentencing enhancements. What you see is what you get, plain and simple. This is real truth in sentencing. [As an aside, as argued in my office's amicus, we cannot allow circumvention of Blakely by faulty waivers by addmission].

Posted by: doug morris | Oct 11, 2004 11:12:26 AM

Mr. Morris,

I am writing you back with the nothing but great respect for all the hard work that you Federal Public Defenders do. I understand your point very well and it makes great since. When the prosecutors are actually doing their jobs and not trying to just see how many they can win by any means necessary. How do you feel when the prosecutors twist all the evidence and make deals with the guilty and pin everything on the innocent. When the innocent was caught with NOTHING at ALL? But know they are being charged and possibly given life for what everyone else was caught with and the admitted guilty are walking the streets or get a slap on the wrist including the ones that admitted to making drugs from scratch and the international leader got a minimum of 8 years and a 250,000 fine. Federal Case #02 577 Defendant 18. Please look...there are actually people who are lied on and lives are ruined by these prosecutors and judges. Please look into this case.

Posted by: Leigh | Oct 11, 2004 1:34:36 PM

I agree with you that the system allows great discretion to the prosecutors and unfairly rewards early pleaders and snitches. However, how is getting rid of the Guidelines going to help? Currently, judges do have the ability to issue judgments of acquittal if the person goes to trial and the jury convicts and judges have the discretion to depart downward at sentencing. Unfortunately, these tools are rarely used. Thus, how is it going to be any better to rely on the good graces of a judge? In the situation you discussed, prosecutorial discretion resulted in most of the people receiving light sentences. The relatives of these folks are probably singing the praises of prosecutorial discretion. Be that as it may, would a judge have exercised the same discretion? I do not know. It appears that the only way to resolve your complaint about the system is to get rid of downward adjustments for substantial assistance. Getting rid of this pernicious prosecutorial tool and "incentive" would be a big improvement.

Posted by: doug morris | Oct 11, 2004 2:15:45 PM

Yes sir, I agree with you. I do not feel that it would be best left in the hands of the Judges since they allow what does and does not get said in court.

Posted by: Leigh | Oct 11, 2004 2:32:35 PM

I have to say that I am confused by what seems to be a conflict in your position. I am calling it a conflict, because I think it must necessarily be a conflict. You seem to be saying you prefer prosecutorial discretion instead of judicial discretion and so you seem very comfortable with status quo of practically unchecked prosecutorial control. So if prosecutors can take away charges and facts at their sole discretion, it follows they can add or threaten to add charges and allegations at their sole discretion. (and I think we both know it is not hard to get a grand jury indictment.) You are apparently a good negotiator for your clients and have had much opportunity to hone your skills so if you don't mind giving out free advice, please tell me how an innocent man, who has the very foolish notion of trying to maintain his innocence in this system, can negotiate a “good deal”- what fact allegations and what charges can be bargained away while maintaining your innocence?

I frankly don't care that the families of the guilty or those willing to perjure themselves are very pleased with the system as it is now. I don’t see a problem with prosecutors charging a man who is guilty of 90 crimes for those same 90 crimes. I do have a significant problem as we all should, in that innocent people are so afraid of this system –considering the extreme prosecutorial control and low standard of evidence for sentencing- that they have to plead guilty in order to get a downward departure and have a chance to be with their families. I have a significant problem with “substantial assistance” bargains that can put innocent men in prison for the rest of their lives because one person links them to an alleged conspiracy in order to seal their deal. I have a significant problem with the fact that the most minor player in an alleged conspiracy can be held responsible for the acts of everyone else- whether or not those people are charged and prosecuted for those crimes or for any crimes at all. So please tell me how one would negotiate a fair deal for an innocent person in this system that you seem so comfortable with?

Posted by: Non-Lawyer | Oct 11, 2004 4:07:08 PM


I can not find my words these days to explain how I feel and what my family and I are going through, also the so many other families out there that are going through it to. You get to a feeling of hopelessness.... and your words are exactly right and that is exactly what happens. They prosecutors wanted my husband to negotiate and he would have gladly done so if he where guilty of the crimes. So this system punishes the innocent and lets the criminals walk the streets. And people wonder why society is getting worse.

Posted by: Leigh | Oct 11, 2004 5:57:46 PM

You are correct in your characterization of the current system: it discourages innocent people from going to trial and encourages the "guilty" to snitch on people and even create "facts." Be that as it may, you must go to my first premise to understand that there is no conflict in my position. I do not like the onerous system that we have, but the alternative is for prosecutors to actually follow the Ashcroft memorandum to a "T" and charge everything that they can get past a grand jury. As you point out, you do not have a problem with this, but I can tell you that I do not want the government to charge my clients with everything they can and then hope for a judge to exercise discretion. The plain fact is that my clients do not need to worry about discretion regarding something that is not there, becuase the prosecutor has not charged it or has bargained it away. To the main point, how is getting rid of the Guidelines going to help innocent people? How is judicial discretion going to lower my clients' sentences? How are my clients better off being charged with every offense they commit? The fact of the matter is that conspiracy law is a terrible concept that will be present with or without the Guidelines. The only way to solve the issues you mention is to get rid of reductions for acceptance of responsibility and substantial assistance and take confidential informants and snitches out of the process. If the Guidelines are gone, acceptance and substantial assistance will be gone as well. Confidential informants and snitches will never be gone and will always be there to testify against someone: innocent or guilty. Keeping the Guidelines and applying Blakely will go along way to removing hearsay and lies from the sentencing process, but only ethical law enforcement officials and prosecutors can eliminate the problems of which you complain. The botton line is that innocent people should go to trial.

Posted by: doug morris | Oct 11, 2004 6:16:26 PM

Doug- You are concerned about the Ashcroft memo being followed but isn't it supposedly in effect now? Doesn't the DOJ allege they are under this directive which just sounds like propaganda since deals like Fastow, Kopper and probably over 97% of the other plea deals are in fact just "business as usual" without any apparent effect from the Ashcroft memo? Aside from that comment, I will defer to you on the business of criminal prosecutions today but I will speak on one thing that I know very well. That is the terrible fear and incredible courage it takes for an innocent person to stand up to this system. So your free advice is just go to trial? I'm sure you know that is not a very wise proposition when you are certain to have to face people in a conspiracy charge that are ready to live up to their "deals".

I know that conspiracy charges are not an issue on the table as yet but they are supported by these horrible guidelines and mandatory minimums that claim to bring equality to the system. The fact is over 97% take a deal in order to avoid being held to the sentence congress decided was required many years ago without ever having seen or heard the defendant- probably quite a few of them have agreed to assist in the prosecution of others. I don't want to guess at that math because it is too scary to think about.

I think we both agree this is all lousy but please don't leave it up to the innocent individual who is suddenly caught in this system to try to fight through it as is. This is your profession- this is other people's lives- you have a voice and I believe that you have an obligation. Don't just keep negotiating around a hopelessly lousy system- please do what you can to change it. Thank you for your courtesy in responding.

Leigh- Never give up hope- it will get you through to tomorrow. There is strength in truth even when you're the only one who knows that truth today. Contact your congressman and sentators about mandatory minimums and make them hear your voice too.

Posted by: Non-Lawyer | Oct 11, 2004 11:12:56 PM

You are correct in that we are talking about two different things: (1) whether the Guidelines should remain and (2) conspiracy law. As far as the Guidelines and conspiracy law, my position is clearly noted above. I must, however, ask you some theoretical questions. Assuming you were a lawyer, if you had a client walk into your office today, who the government had charged with being a member of a drug conspiracy, and that client claimed to be innocent, what would you do? Would you plead out the innocent person or would you go to trial? Whether the Guidelines are present or it is indeterminate sentencing the risk associated with conspiracy law is usually the same. What would you do? We can all rail against the criminal justice system, which I do every day, but what would you do with that innocent client who just walked into your door. Even better, you have a "guilty" client who wants plead and wants you to get him or her the least amount of time possible, which is your job. What would you do? Do you want the government to charge your client with everything they can? What would you do if your client wanted to "earn" a reduction in sentence by snitching? It is your job to do the best for YOUR client. What would you do? You see, it is easy to criticize, but it is not so easy to work within the system we have and do the best for YOUR client. What would you do?

Posted by: doug morris | Oct 12, 2004 9:05:45 AM

I do agree with Mr. Morris about going to trial when you are innocent, however Mr. Morris, when you take this innocent man to trial who is clearly innocent and everyone can see that by the way the case is presented and the facts to prove his innocents are all there. Only the prosecutors mix the story all around to make it seem like what they want it to be (which is usually what they do) but how about every time you as an attorney try to question the witness in this case with the same questions the prosecutors questioned their witness you have been objected to and the judge allows it but when it is your turn to object for the same reason your objection is ignored. (Case #02577 Defendant 18, Southern District of Texas) What do you do? Mr. Morris when your client's Sixth Amendment is violated by a member of law who is on the stand trying to make you look like the bad guy to the jury and you continuously demand a miss trial and the Judge continually denies it and tells you forget it and to not ask it again you will have to take it up with the 5th Circuit. (Case #02577 Defendant 18, Southern District of Texas) What do you do? What do you do with the prosecutors are abusing the power and the Judge is helping them get away with it and it is clearly obvious to everyone who is observing. (Case #02577 Defendant 18, Southern District of Texas) What do you do? And when the Judge improperly instructs the Jury before your client gets found guilty for a life sentence because he just wanted to prove his innocence and everyone including his attorneys and other attorneys new the facts proved his innocence. (Case #02577 Defendant 18, Southern District of Texas) What do you do? And know because of the lies and the contempt on the prosecutors side and perjury that was allowed, YOUR client has been sentenced to life in prison and his three young children will grow up without a father. And his wife will struggle to keep them from loosing there home. WHAT DO YOU DO? (Case #02577 Defendant 18, Southern District of Texas) WHAT DO YOU DO?

Posted by: Leigh | Oct 12, 2004 10:26:52 AM

Knowing what you know now, would you have wanted your husband to plead guilty even though he was innocent. What would I have done, I would have informed your husband of the risks associated with going to trial and then I would have done just what your husband's lawyer did-- I would have taken it to trial. That is what I would have done. A defense attorney can do little about the issues you complain of, except cross-exam the snitch and try to poke holes in the government's case. Beyond all of this, remember, the primary focus of my initial post was whether we should have "Blakelyized" guidelines or indeterminate sentencing. The problem that you and nonlawyer rail against is systemic and will not be improved by getting rid of the Guidelines. For what it is worth, the only way to address your complaint is to eliminate consideration in sentences for informing and totally overall conspiracy liability. On both of these counts I am in total agreement with you and nonlawyer. I hope that your husband has better fortune on appeal.

Posted by: doug morris | Oct 12, 2004 11:24:45 AM

Doug- Your challenge is insightful and one that I’m sure you struggle with regularly. You’re right, the problem is the system but I am certain that the poorly thought out "guidelines" and mandatory minimums support this type of manipulation of people caught in this system. How do you protect yourself from an extreme and vindictive punishment? Win or negotiate. It’s not about truth. Most choose negotiation so the one person who chooses to “win” is hit from all sides so that is why I say it is such a foolish choice. This cycle it seems is the result of having nothing but rotten choices available in this system, once a prosecutor decides you are the enemy. Truth, honor and justice- blah, blah, blah. There is a well oiled and accepted business of incarceration and labeling going on- don’t give us any trouble- we can be nice, very nice, if you just do what we want.

It is madness to try to change an unjust system one client/victim at a time. Although I have to say, I used to believe that lawyers had an obligation to the truth- I’ve been beat over the head with a "lawyerly" perspective of truth and it stinks. Ironic that something as simple as truth has nuances and can be completely overwhelmed in a room built for Truth by Motions and Objections and so many rules. I suppose he who has the best lawyer and the most money wins which may be the only way to fight this system one victim at a time. Most of us can’t fight that way. I’m asking for something more from you and from everyone else who has chosen to spend most of their lives working and functioning in this system. You know the reality- you knew it long before we did. I don’t know what you can do but I’m sure hoping you have an idea. It seems just accepting what it is and being glad it isn’t worse is very wrong. You know that applying Blakely to the guidelines is just one step- a very important step but we need much more to protect the innocent from virtually unchecked prosecutor “discretion”. There is so much wrong here- what can anyone do?? Believe me, this is not a rhetorical question- It's pretty pathetic to be looking for answers on a blog but here we are.. Any answers out there?

Posted by: Non-Lawyer | Oct 12, 2004 12:18:41 PM

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