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December 8, 2006

Plead guilty or face lifetime solitary confinement?

Severe federal sentencing laws give federal prosecutors lots of bargaining leverage to get guilty pleas rather than to have to prove guilt at a trial.  But this story from Buffalo sent to me by a helpful reader provides a new and disturbing twist on prosecutorial efforts to coerce encourage a guilty plea:

Federal prosecutors have told James C. Kopp he will spend the rest of his life in solitary confinement, locked up 23 hours a day in the nation's most-secure prison, if he insists on a trial and is convicted on federal charges stemming from the October 1998 killing of Dr. Barnett A. Slepian. But if he pleads guilty instead, the prosecutors told Kopp in a recent meeting, they would see that he is sentenced to a medium-security federal prison.

Kopp, who is representing himself, disclosed the government's offer in a four-page affidavit he wrote from his cell in the Niagara County Jail and made available to The Buffalo News.  His court-appointed legal adviser, assistant federal public defender John F. Humann, confirmed Kopp's version of the offer....

Kopp already is destined to spend at least the next 25 years of his life in prison, after he was convicted in Erie County Court of Slepian's murder.  Now 52, Kopp would be in his 70s before he was even eligible for state parole and even then would be unlikely to be granted his freedom. Kopp faces an additional life sentence in federal prison if convicted of charges that, by his killing Slepian, he violated a federal law guaranteeing access to abortion clinics.

December 8, 2006 at 09:15 AM | Permalink


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I was unaware DOJ could even guarantee, as a part of a plea bargain, confinement in a particular place or particular security level prison. According to 18 USC 3612, the BOP must make this determination, which is ultimately made by the Designation and Sentence Computation Center (DSCC) in Grand Prarie, TX. The decision is made by application of mostly objective criteria to the particulars of the inmate and the sentence.

So, I ask, how can DOJ guarantee a particular placement when that decision is supposed to be made by BOP using a formal, mostly objective, "scored" security classification system, which the DOJ has no involvement in? Is it common (or possible) for such deals to be included in a plea bargain?

The answer could be as simple as pointing out how the Government often manipulates sentencing outcomes, which under the Guidelines are supposed to be objective. But I don't think that the analogy is correct because, unlike a Probation Officer, DSCC does not rely on information given to it by an AUSA and makes its decision completely independent of the AUSA.

Posted by: DEJ | Dec 8, 2006 10:54:57 AM

I'm with DEJ. We regularly ask courts at sentencing that our clients serve time at a specific institution (to be closer to family, have particular programs available, etc.) and are routinely met with the response that the court can recommend, but the ultimate decision is up to BOP.

Posted by: JDB | Dec 8, 2006 1:40:14 PM

For what it is worth, I have to "third" DEJ's comment. Judges will make recommendations as to place of incarceration. But, the idea that the US Atty can direct specific placement does not make sense. BOP is an entitiy unto itself. I assume they are speaking of ADX in Florence, CO. Outside of all of the terrorism defendants, who are now incarcerated there post-9/11, other defendants are placed there based upon factors set forth by the BOP. These include escape, behavior in prison [e.g., Tho. Sliverstein is at ADX], gang affiliation, etc. I do not think Kopp fits into any of these categories. Kopp should call their bluff.

Posted by: Bernie Kleinman | Dec 8, 2006 2:59:55 PM

Sure, DOJ can't guarentee anything. But does anyone think that, through unofficial pressure or "recommendtions," or a well-placed phone call, that a prosecutor can't make either one of these options happen?

Posted by: Anon | Dec 8, 2006 3:14:06 PM

Will the time ever come when it is officially unconstitutional for there to be any punishment, consequence, or detriment to a defendant invoking his right to put the government to its burden at a jury trial? The right to a jury trial is meaningless if defendants can be punished for invoking it. Denying someone a benefit solely due to their invokation of a constitutional right is not any different than imposing a penalty. This is just as unconstitutional as is the "acceptance of responsibility" deduction for pleading guilty and avoiding trial.

My solution is to ban all plea bargaining and force all indictments to go to trial or be dismissed, with jeopardy having attached, and with a letter of apology from the government, a certificate of actual innocence, and restitution of all legal fees and expenses paid by the defendant up to the date of dismissal. And a civil cause of action for negligent indictment against the prosecutor and police officers who brought the charges. Pleabargaining has destroyed the right to jury trial.

Posted by: Bruce | Dec 9, 2006 6:54:23 AM

Bruce, you may not like what a jury does in a trial if they thought they, the taxpayer, were going to have to pay when they return a not guilty verdict.

Additionally, your "solution" is no such thing. It simply will change the standard of proof that the Government would demand to file a case, - something which would have its own societal costs. Also, I am wondering why an actual innocence determination is so important to your "solution" since a not guilty verdict is not the same as actual innocence.

Frankly, as a prosecutor I do not mind the banning all plea bargaining. To me, I file cases that will result in a guilty verdict at trial and I do not think that a defendant should avoid an appropriate penalty by waiving that right. A defendant has a right to a jury trial, not a plea bargain.

Posted by: David | Dec 9, 2006 2:11:03 PM


You need to read my post again.

I never said costs should be taxed to the government (and thus the taxpayer) if a jury acquits a defendant. Either take the case to trial, OR (as in, one or the other) dismiss it with the letter of actual innocence, costs, and the inability to re-indict.

The actual innocence certificate is, likewise, if the case is dismissed pre-trial. Precisely because the allegation going away still tarnishes someone's reputation and they have no other way of remediating that. If you're charged with murder, and then it's dismissed, people will still think you're a murderer who the government simply couldn't get enough evidence to convict. Again, need to read my comment more carefully.

And for what it's worth, the standard of proof the government demands to file/indict a case SHOULD be extremely high, and certainly MUCH higher than mere probable cause. That's why our courts are so overcrowded. And the more overcrowded they are, the more the pressure exists to "dispose" of cases short of trial. And the more that pressure to plead out exists, the more systemic anger and frustration will be held against defendants who exercise their right to a jury trial.

Try them or free them (with costs and stipulation of innocence).

Posted by: Bruce | Dec 9, 2006 2:23:49 PM

Bruce, good enough. Be ready for the crushing workload. It won't be as bad for us since - as I often hear from defense counsel - all I have to do is ask the witness, "what happened next."

Also what about situations where the strength of the evidence changes due to factors totally independent of government conduct? Does the government, and the police and prosecutores, have to pay for that as well? Some witnesses are honestly mistaken or very good liars. In case you do not know that just watch a good defense attorney's closing argument.

Posted by: David | Dec 9, 2006 3:21:03 PM

David, in my experience the evidence won't change too much after trial starts. Pretrial the government would still have the option of dismissal (with costs and innocence stipulation).

No the workload would not increase. In fact, my primary reason, other than respect for the right to a jury trial, for wanting to get rid of plea bargaining is that the limited resources of the state, knowing that if they indict it, it must go to trial, will cause only those cases that need prosecuting to be prosecuted. It will force prosecutorial discretion. Murder, rape, burglary, assault, large theft cases will be prosecuted where de minimis crime (which is probably 75 to 90 percet of all cases on any given criminal court's docket with the caveat that I consider all possessory drug cases to be de minimis) will be dismissed, with the knowledge that the embarassment of being arrested, having to spend a few hours (or maybe even the weekend) in jail, and the expense of hiring and consulting with a lawyer, is more than sufficient punishment for the average person accused of the average trivial malum prohibitum crime.

Just because someone technically committed a crime does not mean they should be charged. The 18 year old who sleeps with his 17 year old girlfriend (who is 2 days away from turning 18 herself) is technically guilty of statutory rape, but should not be charged. If all cases had to go to trial or be dismissed, these idiotic prosecutions would not waste judicial (and taxpayers') resources as they currently do when the prosecutors know that 95% will plead out.

Posted by: Bruce | Dec 9, 2006 11:26:12 PM

There are a few things that you're missing.
(1) Plea bargaining is encouraged by EVERYONE in the system. Defendants have been charged who know they are guilty. They want to try to minimize their exposure to punishment, and plea bargaining helps them do that. Plus, some defendants are actually sorry, want to put this behind them, and publicly stating "I'm guilty" puts them on the road to do so.
(2) Prosecutors like plea bargaining because it takes cases off their docket and frees state resources to do more work. (Bruce: I agree the prosecutorial discretion is important in many cases, but prosecutorial descretion does not equal "let's arrest people and then release them--I think a weekend in jail is enough, even though the legislature thinks this is a felony." To the extent that we incarcerate people too long, then petition your legislator for a reexamination of sentencing proceedures--many state governments are already doing this after years of "tough on crime = higher sentences." And the purposes of punishment--specific deterrence, general deterrence, retribution--would not be served if you knew you had a 2% chance of being forced to go to trial for any malum prohibitum crime. Once again, if you're arguing for the decriminalization of drugs, SEC violations, gun possession by felons, etc., that should be done by the legislature.)
(3) Judges like plea bargaining because they have more important things to do than sit through weeks and weeks of "pro forma" trials where the defendant has no evidence to put on.

Therefore, outlawing plea bargaining is disfavored by everyone. What needs to be checked is METHODS of plea bargaining. This prosecutor's stress is unconscionable. So are threats of civil forfeiture -- plea or we'll forfeit your house where your family stays and they'll be out on the street. So is threats to charge the defendants wife or family where it's perhaps possible but unjustified. So is overcharging the defendant, knowing that it will "plead down" to a justified, lesser offense (at least in state court).
So the questions should be-- What are the limits of the threats and promises a prosecutor may make in offering plea bargains? What are the consequences if prosecutors step over that line? What should be the burden of proof and method of proof at a plea hearing? Perhaps someone other than the prosecutor should articulate the factual basis for the plea? Then we might have a more fair, but yet efficient, criminal justice system.

Posted by: (Former) District Clerk Battling Blakely | Dec 11, 2006 8:29:49 AM

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