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January 29, 2007

A valuable (but disconcerting) perspective on the border case

Andrew C. McCarthy has this must-read article in today's National Review Online about the border patrol agent case (background here and here).  The article includes lots of great insights, but also some troublesome rhetoric.  Here's a taste:

Myopic border-enforcement activists seem unconcerned about any of these facts [which shows the border agents' misdeeds] — for them, much like anti-death penalty obsessives, the cause is a higher calling.this case rankles ordinary Americans, too.  That's understandable given the severity, the equities, and the potential ramifications of the punishment.

There is broad recognition that bad agents should be weeded out of any police force. Compean and Ramos, however, have not just been terminated; they were socked with sentences of twelve and eleven years, respectively.  This, in connection with an incident that arose out of a job which — their appalling conduct aside — is undeniably dangerous; an incident instigated by a drug dealer who was not prosecuted for crimes worth at least as much jail time as the agents received — an illegal alien felon who may end up with a big cash windfall premised on the absurdity that his purported American "civil rights" were violated....

[D]id the indictment really have to be this severe?  After all, the sentences are extremely harsh.  Here, the agents have mainly themselves to blame. The government offered them very generous plea deals.  Compean and Ramos spurned them. If defendants decline to plead guilty and insist on proceeding to trial, it is standard operating procedure for the Justice Department to bring its best case — which includes charging the offense that carries the highest penalty among all readily provable crimes. Indeed, it is common for the government to insist on the most severe, readily-provable offense even at the plea-negotiation stage — something Sutton's office did not do.

Talk about an interesting example of blaming the victims (of overly harsh sentencing practices).  The two border agents opted to exercise their constitutional rights to force the government to prove its case to a jury, and now the National Review's columnist says they have "mainly themselves to blame" for their harsh sentences. I wonder if anyone at the National Review is actively urging Lewis Libby to cop a plea, since he will have only himself to blame if he ultimately gets convicted and receives a tough sentence.

January 29, 2007 at 01:51 PM | Permalink


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There is a North Carolina case, from around the same time as the Alford case perhaps, which in my opinion cautions against prosecutors asking for more (or much more?) jail time as a consequence of taking a case to trial, asserting the trial right, as opposed to taking a plea.

It certainly appears that clients who take cases to trial are punished for asserting the constitutional right to a trial, which in my opinion would be wrong and unconstitutional under that Supreme Court case (which I am too lazy to look up just now).

Posted by: Mr. Habeas | Jan 29, 2007 5:17:18 PM

Plea bargains aren't a new concept, are they? Hasn't it always been true that if you turn down a plea and lose at trial, the consequences are worse than if you'd pled in the first place?

Perhaps the magnitude of the difference is worse than it used to be. (Do we have any measure of that?) But there's nothing new about the basic idea that a guilty plea results in a better fate than being found guilty at trial.

Posted by: Marc Shepherd | Jan 29, 2007 5:54:23 PM

One of the many problems is the rigidity of the federal sentencing system. "Advosry" or not, between the potential for mandatory sentences, use of acquitted conduct, the "acceptance of responsibility" aggravator, etc., defendants (especially poor ones) in federal court really are compelled to plead guilty.

Posted by: Anon | Jan 29, 2007 9:28:29 PM

If you are convicted of an offense with a statutory minimum of life, the whole guidelines debate doesn't make much difference.

Posted by: Jay | Jan 29, 2007 11:40:31 PM

Sorry, I was thinking about the California first degree murder case when I posted that, not the border patrol agents.

Posted by: Jay | Jan 29, 2007 11:41:16 PM

Although I don't agree with the holdings, under current Supreme Court precedent, it would be tough to argue that it is unconstitutional for prosecutors to go forward on the most serious charges if a defendant refuses to accept a plea bargain.

In order to win such an argument, two SCOTUS cases would be difficult to overcome: US v. Goodwin, 457 U.S. 368 (1982) (holding that it is not a constitutional violation or presumed vindictiveness if the State brings felony charges stemming from the same incident after D refuses to plea to misdemeanor charge); Bordenkircher v. Hayes, 434 U.S. 357 (1978) (holding that due process is not violated when the State carries out a threat made during plea negotiations to have D reindicted on more serious charges if he does not plead guilty to the original indictment).

It is important to note footnote 19 in Goodwin: "[T]he defendant is free to tender evidence to the court to support a claim that enhanced charges are a direct and unjustifiable penalty for the exercise of a procedural right. Of course, only in a rare case would a defendant be able to overcome the presumptive validity of the prosecutor's actions through such a demonstration." (quoting the US's brief).

Posted by: DEJ | Jan 30, 2007 12:09:16 PM

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