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November 30, 2007

More on the trial penalty's impact in white-collar cases

A helpful reader sent me this column from the Financial Times that spotlights some of the trial penalty issues I recently discussed in this post.  Here is a snippet from the column:

The urge to find guilt has overwhelmed the presumption of innocence on which Anglo-Saxon justice is based....  Plea-bargaining is effective because of four salient features of American justice: the exceptional severity of punishment; the justified terror of what might happen in prison; the uncertain outcome of fighting cases before juries; and the possibility of obtaining a far lighter sentence by agreeing to pleas of guilty.

In the case of the NatWest three, the accused faced the possibility of up to 35 years in prison for their alleged offences.  It is a reflection of the gulf in culture that has grown up between the US and the UK that what are in effect life sentences might be imposed for their alleged involvement in helping Andrew Fastow, then Enron’s chief financial officer, defraud Enron.  Such a sentence would be far longer than all but the tiniest proportion of murderers could expect to serve in the UK.  Yet, apparently, it is regarded as perfectly reasonable in the US....

Now imagine that you might face such a sentence if found guilty.  Imagine, too, that you believed yourself innocent of all charges, but recognised the great complexity of the case and the ease with which a prosecutor might twist evidence against you before an uninformed (perhaps prejudiced) jury.  You might suppose you had a one-in-five chance of being found guilty.  That would be particularly plausible if you had run out of financial resources and so were unable to retain a first-rate legal team.  What would you do if the prosecutors offered a plea bargain, under which you would serve just 37 months in prison in your home country (and pay $7.3m in restitution to the Royal Bank of Scotland, now the owner of NatWest)?

The answer is that most people would plead guilty, not because it was true but because it is what any risk-averse human being would do.  To my mind, this system is tantamount to extracting confessions of guilt under a form of psychological torture.  That torture consists of the reasonable fear of being found guilty and fear of the length of time one might then serve in prison and of what might happen while one was there. A ll but exceptionally brave people will confess to almost anything to escape even the possibility of torture. In the same way, the majority of people would surely confess to almost anything to avoid the possibility of spending the rest of their lives in prison.

Recognition of the meaninglessness of confessions extracted under threat of torture was the main reason civilised jurisdictions abandoned its use.  The same objection applies to pleas of guilty made under the kind of plea bargaining employed in the case of the NatWest three. Let me be clear: I am not asserting that the men are innocent.  But the fact that they have made a plea of guilty does not prove their guilt.  It could just as well show that the US judicial system has a potent machine for extracting pleas of guilty to lesser charges. In this way, it has also effectively eliminated a presumption of innocence.

UPDATE: Tom Kirkendall at Houston's Clear Thinkers now has this long post examining "The real NatWest Three deal."

November 30, 2007 at 09:05 AM | Permalink


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They force you to take pleas with the threat of long prison sentences if you dont. government allows this behavior within the department of justice. The department of justice is out of control and I don’t know what will or if they will ever get reeled in. I don’t think they will. Look what is going on in Arkansas another piece of the Walmart trial. It is so clear that the secretary did not know she was giving the VP money for personal use. The Walmart lead investigator says she thought she was giving him the money for company expenses. The Walmart attorney agrees yet the government continues to waste taxpayer’s money to pursue this meaning less case. Why? Is this what the American people what their government to do? How do you bring in this out of control department? I almost think you have to bring everything in front of the public eye. Let the public see what the government is doing how they are spending money and when it comes down to election day when people are voted out of office maybe they will look back and say we probably should have done things a little different.

Posted by: | Nov 30, 2007 9:57:35 AM


Having seen hundreds of guilty pleas over roughly two decades in the US Attorney's Office, I can tell you what induces them. It can be summarized briefly.

People plead guilty because, as they state under oath at the Rule 11 proceeding, they are guilty. And as they know full well before they ever get to that proceeding, the government has the evidence to prove the case cold.

That's the ballgame. Quite a few defendants will laugh all the way to the bank, because in the course of plea negotiations they got some overworked or distracted or lazy AUSA to drop a whole bunch of stuff they stood a real good chance of getting convicted of had they gone to trial.

The Financial Times would have its readers believe that what goes on here is an updated version of the Inquisition. This is false, not to mention calumny. If there is a more defendant-friendly criminal procedure system in the world, I have yet to hear of it. For example, in England, home of the very newspaper from which the America-as-Barbarian column you note is excerpted, a defendant's silence CAN be used against him in a criminal case. And in the Muslim world -- which we are now so frequently reminded we must respect -- both the behavior defined as criminal and the punishments for it are simply mind-boggling when compared with the United States.

To those who feel sorry that the rapacious thieves at Enron got the stiff sentences they had spent years earning, all I can say is that their sympathies would be better directed elsewhere, starting with the hundreds of victims whose careers and/or life savings vanished.


Posted by: Bill Otis | Nov 30, 2007 10:21:02 AM

Though you make a number of fair points, Bill, I wonder if you are concerned by the growing perception of injustice in the operation of the federal criminal justice system? Even if this commentary is overstated, shouldn't all Americans be troubled that this is how our system is being perceived across the pond? At the very least, based on his track record, I suspect Justice Kennedy is one American concerned about internation perceptions of our justice system....

Posted by: | Nov 30, 2007 10:50:23 AM


You are not the first to defend a career based on what amounts to defective practice and philosophy, especially when dictated by higher authorities. No-one would dispute that there are those who positively benefit from plea-bargaining. But equally it is entirely disingenious to deny that there will be those cases, and for the reasons given in the article, perhaps many cases, where the innocent will be trapped into an acceptance of a guilty plea when actually innocent. You are simply living proof of the point of the article - that the law no longer practices on the basis of an assumption of innocence until PROVEN guilty.

Posted by: peter | Nov 30, 2007 10:51:46 AM

No, I am not concerned by "the growing perception of injustice" in the operation of the federal criminal justice system.

First, you don't specify your evidence that there IS a "growing perception" of injustice specifically in the federal criminal justice system. Nor is there any information given about who has this "perception" and what their motives might be for taking a sour view of the United States.

Second, I try to concern myself with facts, not "perceptions." Perceptions can be and are subjective phenomena often ginned up to serve a culture of grievance. Even more ominously in the long run, they will make intelligible debate impossible, because down the road of a vocabulary of "perceptions" lies the swamp of solipsism.

The question I posed was whether one could point to a more defendant-friendly system of criminal procedure than we have here. You did not point to one. Until persuasive evidence is adduced that one exists, however, I would be foolish to try to assuage the gossamer "perceptions" of unidentified parties who upbraid the United States for the supposed flaws of a system whose overall accuracy and decency puts most of the world to shame.

What the Financial Times article reminded me of was the criticism directed at the United States by the Soviet Union not so many years ago. The criticism was that the USA was imprisoning and othewise cruelly abusing its proletariat. Now there may have been some in the Soviet Union who sincerely held that view as their "perception." But the perception was nonsense, and anyone who spent a whole lot of time trying to answer it was nuts. The truth -- as opposed to the "perception" -- was that the United States, while obviously not without its flaws, was a bastion of fairness compared to the Soviet Empire, which was essentially one giant gulag.

If Justice Kennedy is concerned about foreign "perceptions," he is free to take that path. A number of Justices as intelligent and worldly as he think otherwise. And, for the reasons set out above, so do I.


Posted by: Bill Otis | Nov 30, 2007 11:43:03 AM

I'm a criminal-defense attorney. We still have a presumption of innocence until proven guilty. The decision to plea guilty is the defendant's choice. He is free to go to trial, and our assumption of innocence will protect him all the way through trial. The FT's insinuation that we have reduced the presumption of innocence by actually enforcing our own laws is absurd. Worse, their contention that their argument does not depend on the actual guilt or innocence of these individuals is immorally anarchic, unbelievably simple-minded, and illogical at best.

"Plead guilty, even if you're innocent, because the American system of justice won't treat you fairly" is woefully bad advice. No evaluation of the case. No evaluation of the proof. No mention of the fact that the defendant can CHOOSE to be tried by a judge, if the defendant fears the American jury. No evaluation of a LIKELY sentence. No discussion of the right to appeal. Just a blind condemnation of our system of justice, and the foolish advice to spend four years in prison if you're innocent just because of a fear of a long sentence if you're found guilty. I assume these very editorialist don't drive cars out of fear of accident and don't go out in the rain out of fear of being struck by lightning. I assume they just stay at home, sucking their thumbs, fearful of all the horrible things that could happen to them in this world. Or maybe they intentionally aren't telling the whole story.

The FT article subverts our system of justice out of purely parochial, xenophobic fear. These defendants were clearly not fearful of the fairness of the American legal system when they were doing deals that were protected by our legal system. Only now, when faced with an allegation of criminality, do we hear arguments from these Brits that the American legal system is unfair.

The Brits want access to our markets. They want access to the protections of our law. This is all good. (And I feel the same way about Americans seeking to do business in foreign countries.) It is disingenuous, however, and, as pointed out above, calumny, and pure selfish interest, to complain about the American legal system only when accused of criminal wrongdoing. It's one system of justice. The same system that makes contracts enforceable, that criminalizes fraud AGAINST the Brits, that creates and recognizes corporations, and that regulates corporate securities to create efficient, functionining securities markets, is the very same legal system that tries individuals accused of fraud.

These defendants knew what they were doing, and they knew the legal environment that they were doing it in. If they don't trust American juries, they can waive a trial by jury. If they don't trust American judges (trial and appellate) or juries, what the hell were they thinking when they came here to do business? The FT wants to act like these are little British babes in the fearsome American jungle. Pure hogwash. I'd be embarassed to even insinuate that these men did not fully know what they were getting into when they did business here. If you can't stand the heat, get out of the kitchen. Better yet, never get into the kitchen if you aren't willing to take the heat.

Finally, as we examine the weaknesses in our system, it is important to remember that perception is NOT reality. If foreign perception of our legal system is false, we shouldn't change the system based on their false perception. If, however, foreign or domestic perception of the system shows true weaknesses, then those need to be addressed.

Undermining our system of justice, however, in an attempt to protect these particular defendants from even having to face the accusations against them in open court, should be beneath the FT.

Posted by: Mark | Nov 30, 2007 12:12:35 PM


Let me take your note one point at a time:

"You are not the first to defend a career based on what amounts to defective practice and philosophy, especially when dictated by higher authorities."

You're assuming a lot here, and your assumptions are incorrect. First, I am not "defending" my career, since this forum is (hopefully) about ideas, not persons. I use episodes from my experience as evidence to support my arguments, sure -- others have done the same, and who wouldn't? But the forum here is still about ideas, not about me or any other commenter.

Second, your criticism would be wide of the mark even if it were about me. The assertion that my "practice" was defective is merely a conclusion -- where's your evidence? For that matter, you don't know what my "practice" was, beyond knowing that I was an Assistant United States Attorney.

As I said before on this forum, I argued more than 100 cases in the U.S. Court of Appeals for the Fourth Circuit. Not all of them are published, but quite a few are. When you find my name on a single one in which the Court found that I had used improper pressure of any kind whatever to induce a plea, I want you to post that case right here in bold letters. I can tell you, though, you'll be looking a long time.

"No-one would dispute that there are those who positively benefit from plea-bargaining."

Then perhaps it would be prudent to re-think the proposal that plea bargaining be banned.

"But equally it is entirely disingenious to deny that there will be those cases, and for the reasons given in the article, perhaps many cases, where the innocent will be trapped into an acceptance of a guilty plea when actually innocent."

The government bears the burden of convincing a unanimous jury of 12 impartial people -- who the defense lawyer has a considerable say in selecting -- that every element of the offense has been proved beyond a reasonable doubt.

Have you actually seen a trial in federal court? Let me respectfully suggest that you visit the local federal courthouse for a week or so -- or more time if you have it -- sit yourself down in the audience, and draw your own conclusion about whether what you are seeing is a "trap" for an "innocent person" devised by some unaccountably thuggish prosecutor, acting on orders of an even more thuggish superior, and of course with the connivance of the judge.

"You are simply living proof of the point of the article - that the law no longer practices on the basis of an assumption of innocence until PROVEN guilty."

Please see above.


Posted by: Bill Otis | Nov 30, 2007 12:38:11 PM


I thought your post was devastating -- devastating on the merits, and yet more so because you come from the defense side.


Posted by: Bill Otis | Nov 30, 2007 12:48:47 PM

You know what you are saying is so far from the truth. People plea guilty because of the enormous pressure the dept of justice puts on them. You have one side with the ability to seek enhancements and add things like they were ordering off a menu and you have federal judges who still thing there hands are tied for guideline sentences because the appeal courts look at everything they do or a us attorney as soon as there is a below guideline sentence challenges it ignoring what the supreme court ruled.

So answer this one take a plea deal or just plead guilty without a deal no trial just a guilty plea. Why should the guidelines calculations change? Why should the us attorney then seek numerous enhancements why?

Posted by: | Nov 30, 2007 1:16:00 PM


An unfortunate but typical reaction to any criticism (implied or specific) from abroad. However, it is fatally weakened by your failure to address any of the points made head-on:

Plea-bargaining is effective because of four salient features of American justice:
the exceptional severity of punishment;
the justified terror of what might happen in prison;
the uncertain outcome of fighting cases before juries;
and the possibility of obtaining a far lighter sentence by agreeing to pleas of guilty.

1. It is impossible to deny the first. The maximum sentence of 35 years is greater than that usually reserved for murder or manslaughter! We see and discuss here on this blog countless instances of excessive sentencing. Is it all a figment of our imagination?
2. US prisons are now notorious for the institutional violence that occurs, let alone violence amongst inmates where prisons gangs are allowed to operate. The abandonment of any pretense of rehabilitation, and the poor conditions within, will certainly induce terror on the part of those yet to encounter them. Of course some prisons are better than others .
3. US juries are perceived to have far less direction from the bench than their UK counterparts, and therefore much more susceptible to influence from the sparring success of opposing attorneys. Added to the means of construction of the juries, which at times may be seen to be biased in favor of prosecution (because of the character/belief picking that goes on), an innocent party will have less confidence in a correct or fair verdict.
4. a far less sentence is certainly likely through plea-bargaining.

In short, it is no wonder that critics in the UK, rightly or wrongly, perceive plea-bargaining as an exercise in economy at the expense of justice.

The concept of justice is a universal one, and we should not be surprised if, when our system is seen to be so out of step with international norms, that it attracts comment - however uncomfortable. The resort to nationalistic rhetoric in an increasingly global economy and global society can only attract more.

If you can rebut these accusations and perceptions, well and good. But attacking the "Brits" basically as interfering nannies is a bit silly. Just because that is the way it is in America, at the present time, doesn't always make it right and above criticism - especially when we do it all the time ourselves anyway.

Posted by: peter | Nov 30, 2007 1:33:12 PM

Ignored in all of this defensive rhetoric are the NatWest pleas, with the "crime" to which they pled seemingly not one at all. Also, about the comfort taken in the Soviet comparison, I thought that statistically the rates of incarceration in the US now are comparable to even the darkest times in that other dark empire.

Posted by: Anonymous | Nov 30, 2007 1:56:00 PM


I didn't intend personal criticism, but to reflect the auto-defensive reaction of people when confronted with criticism of a system they have previously contributed to.

On your other points:

Rightly or wrongly gained, the perception that the 12 "impartial" people on the jury may not be so impartial, given the sometimes lengthy scrutiny and sifting that goes on, and the sometimes strange composition that results in some quarters at least, needs to be addressed. Or at least, an understanding that our friends in the UK and elsewhere might have valid reason for doubt.

The "trap" referred to the practice of plea-bargaining, not the conduct of the trial.

The claim that the practice of law is no longer based on the assumption of innocence perhaps (rightly) stems from the huge numbers of cases in which innocence is actually being proven after conviction; also because plea-bargaining circumvents the testing of evidence in a court of law; and because the current sentencing regime is seen to be punitive to the point of mental torture - some sentences (far too many) seem totally gratuitous, with little regard for the on-going life prospects of the individual (however young or old etc), or for family stability, or for the realistic endangerment to the community. These are charges that should be addressed, not defended per se.

Posted by: peter | Nov 30, 2007 2:09:43 PM

"the ease with which a prosecutor might twist evidence against you before an uninformed (perhaps prejudiced) jury."

That is just ridiculous.

Posted by: lawdevil | Nov 30, 2007 2:42:00 PM

This is interesting on many levels. It is true that 9/11 made it possible for our Justice Department to ask for renegotiation of extradition treaties with foreign countries. It also made it much easier for the United States to impose greater scrutiny of foreign banking practices. Many countries have tightened banking regulations and made accounts more accessible to US Treasury. This may account for the increasing use of middle eastern financial institutions.

Our Justice Department and Law Enforcement seems unduly harsh to most Western European Countries. They do not impose such harsh punishment for life style issues or for financial crimes. I don't know the statistics, but our prisons are filled with non-violent offenders who were indicted as a result of sting operations. These operations are manufactured crimes. The British would never think that government money could be well spent having a law enforcement officer sitting in a booth in a public rest room waiting all day for a signal. Actually, entrapment testimony is not considered worthy. This is not the case in our Justice system.

The informant system, well entrenched is another form of evidence that is not respected. Tainted testimony is frequent when witnesses are paid in either money, goods, or reduced sentences. I do think that if we do not rethink these practices extradition will not continue to be a given. We also have a history of not respecting the stipulations that other countries put on the extradition. We over ride the indictment that is used for the extradition and immediately issue a superseding indictment as soon as the individual lands on our soil.

It is not difficult to see that we have corrupted law enforcement. We have such a high percentage of our population in jail and it has become a self perpetuating system. As a larger and larger portion of the population interfaces with this system there is indeed some questioning.

Posted by: beth curtis | Nov 30, 2007 3:28:32 PM


I'm the one who compared the criticism of the United States heard now in some (but scarcely all) foreign quarters to the criticism we used to hear from the Soviet Union, so I was interested in your remarks.

You don't deny that the criticism in both instances sounds awfully similar. Instead, you say this: "[S]tatistically the rates of incarceration in the US now are comparable to even the darkest times in that other dark empire."

My goodness.

First, since you don't give the rates of incarceration in the Soviet Union during the Cold War, there is no way to evaluate your claim.

Second, even if there were published rates, they would be of dubious value, since the Soviet Union lied with breathtaking scope and frequency about its internal repression, as the documents that came to light after its collapse have shown.

Third, incarceration rates by themselves tell us very little. Are people being incarcerated because they are deemed by the secret police to be enemies of the state, or because they commit crimes adjudicated in open courtrooms through an authentically adversarial system? Are they incarcerated in secret cities on the Gulag, or in prisons where they get mail, visitors and access to law libraries and lawyers? Is incarceration brought about by the animus of the local Commissar, or by the judgment of an independent judiciary?

Fourth, when you refer to the Soviet Union as the "other dark empire," do you mean seriously to suggest that the justice system in the United States is similar to what went on in the USSR? Your language seems chosen to make that equation, which no fair-minded person would accept.

It is claimed by some of our commenters that people who believe the United States is, on the whole, a fair and decent society are responding to foreign criticism reflexively and defensively. The opposite is true: The criticism, which has a distinct holier-than-thou ring to it, is what strikes me as reflexive, and reflexive in the same way the Soviet criticisms were.

It's the old, cookie-cutter "Blame America First" view of things that Jeanne Kirkpatrick put her finger on. This attitude was wrong in 1980, when she coined the phrase, and it's wrong today as well.


Posted by: Bill Otis | Nov 30, 2007 5:41:22 PM

"Are people being incarcerated because they are deemed by the secret police to be enemies of the state, or because they commit crimes adjudicated in open courtrooms through an authentically adversarial system? Are they incarcerated in secret cities on the Gulag, or in prisons where they get mail, visitors and access to law libraries and lawyers? Is incarceration brought about by the animus of the local Commissar, or by the judgment of an independent judiciary?"

Brave stuff Bill, given Guantanamo and associated CIA led actions around the world. And you wonder that such comparisons are made?

Posted by: peter | Dec 1, 2007 1:48:34 AM


The enemy combatants detained at Guantanamo are very different from 99.9% of the federal prison population. Whether and to what extent they are due the procedural protections given the 99.9% will be clarified by the Boumedine case, to be argued next week I believe, and by the Fourth Circuit's en banc ruling in Al-Marri. I suspect, although I don't know, that Congress and the courts will continue to hash out their legal status for a good long time.

Enemy combatants have never been thought to possess the same rights as domestic criminal suspects, and were not treated as such suspects in WWII, when we seized many, many more of them than there are detainees at Guantanamo.

But even were it otherwise, for you to support the notion that the federal criminal justice system is like the Soviet secret police and their Gulags holding thousands in Siberia -- all based on ONE-TENTH OF ONE PERCENT (if that) of the federal prison population -- is absurd on its face. It has exactly the same intellectual heft as asserting that I'm just like LeBron James because each of us has a thumb. It also bespeaks a remarkable, if at this point unsurprising, anti-American bias.

So let me ask you straight up: Do you or don't you agree with Anonymous's equation of the Soviet justice system with that of the United States -- a county that is, to use Anonymous's exact phrase, the "other dark empire"?


Posted by: Bill Otis | Dec 1, 2007 9:07:23 AM


Because I am critical of the justice system does not mean I am anti-American. I simply point out that, just as we view and may be critical of judicial and political systems overseas, it is to be expected that people overseas may view our systems with equal criticism. It is intellectually arrogant to dismiss such criticism on the basis that our systems are based on our laws, and therefore the opinions of outsiders are of no consequence. The US does in fact support and acknowledge a body of International Law. We do share a common legal ancestry if you like to put it that way with the British. It is reasonable to ask hard questions about the way law and practice has now so dramatically diverged along a course of extreme sentencing policy that results in the largest rate of incarceration in the (Western?) world. And of course retains the death penalty in contradiction to most of those nations we would expect to call friends and allies.
I agree with Anonymous to the extend that both the Soviets in the time of Solzenetzin, and the US today, had and have respectively, justice systems that were profoundly unjust, leading to the unjustifiable criminalization of sections of society; the imposition of intolerably long prison sentences; the abuse of universal (western) legal processes (ie the substitution of a full trial by, in the case of the US, plea bargaining); and the condoning of conditions of incarceration that in many cases are simply inhumane. I do believe that the judicial system has been corrupted by the close integration with politics, and I do believe that only radical reforms of sentencing policy by the highest Federal authorities, be they the Supreme Court or, more likely, Congress, will bring back a system we in this nation can call fair and in the interests of a civilized society. Outsiders are right to look askance at legal and penal processes that do so much damage to society, and in their eyes diminishes the concept of democracy that we happily attempt to export to the world. There is more, hopefully, to democracy than economic riches. It should describe an enriched social environment in equal measure - not a society that entombs its criminal elements in underground supermax prisons (Ohio); or tolerates severe sensory deprivations on death row (Texas); or denies basic access to innocence-proving DNA tests (Alabama and others); or which fails to distinguish between youth and adult criminality; and I could go on.
In my (humble) view, US Justice is at its lowest, darkest point since the Constitution was first drawn up. Doug and others prefer to think it can be salvaged from that point by tinkering at the edges to effect a repair. My belief is that a series of profound changes need to be made to jolt us back onto rails that will lead to true reform of the whole judicial and penal system. The abolition of the death penalty would be an effective starting point, closely followed by a review of other sentencing policy, and a rethink of the concept of supermax prisons and other centers of incarceration which today are incompatible with the concept of human rights. You may be thinking that pink elephants might be taught to fly before any of that will be achieved in the US. But maybe that was said of slavery and women's emancipation before reform was accepted. I just wonder where the leadership is going to come from.
Oh, and the term "enemy combatants" you will remember was something dreamed up recently, probably on the back of an envelope, to circumvent what had become inconvenient national and international law. It has no merit in that.

Posted by: peter | Dec 1, 2007 10:48:16 AM


Two points. First, while you include some tepid qualifers toward the front, your basic answer could hardly be clearer: You do in fact agree with Anonymous that Ameican justice roughly equals what was going on in the "other dark empire," the Soviet Union.

Second, while you disclaim any generalized anti-Americanism, I am content to let your posting, both in tone and content, speak for itself.


Posted by: Bill Otis | Dec 1, 2007 11:38:16 AM

I’m the Anonymous who checked in briefly earlier. I have no hope of matching the eloquence of either Bill or Steve, but would like to try to make a point or two in my own bumbling way. First, I wish to direct attention back to the pleas of the NatWest-Three. If one reads either the statement “they” – I put they in quotation marks as it was certainly a negotiated document of suspect evidentiary value – filed in support of their pleas and/or the Kirkendall blog, one should be very troubled about whether or not a crime was committed by them. I suppose one example of prosecutorial bludgeoning with its plea bargaining power doesn’t prove the system has been corrupted by that power, but we would at least seem to have a pretty good example of that power being abused here.

Second, this is not an isolated incident. I’ve seen it happen several times myself. I’ve also seen trials turned into farce by prosecutors who use their plea bargaining power to manipulate the evidence, both by coercing witnesses to give a pro-prosecutor version of the facts – or worse, fraudulent versions – and/or by silencing others who would have given exculpatory testimony. Though I suppose my experience is limited, and thus arguably of only anecdotal value, consider the research of Russell Covey, in particular his article “Fixed Justice” that Professor Berman linked a while back. Professor Covey writes there that “[t]he ubiquity of plea bargaining creates real concern that innocent defendants are occasionally, or perhaps routinely, pleading guilty to avoid coercive trial sentences,” citing later in his article evidence of just that.

About relative rates of incarceration, let’s consider the un-debatable fact that the rates here in the U.S. are grossly out of whack with the rest of the developed, and even developing, world. For example, according to a recent study the EU incarceration rate is 135 for every 100,000 people and the Group of Seven "US excluded" 96. The the rightfully, I'd say, excluded U.S. is at 738. Sure, we can start slicing and dicing those numbers, but the gap is yawning with one more than reasonable conclusion being that law enforcement is out of control in this country.

Finally, to equate being appalled with the US criminal justice system with anti-Americanism would seem to be the final retreat of those with a failing position to defend. As an American, and a lawyer, I am ashamed to see what my country’s criminal justice system has become. Steve only mentioned a few recent examples of shameful US law enforcement activity outside of our borders, but there are many recent examples of such activity within them. And to get back to the subject of Professor Berman’s posting here, plea bargaining, and using the words of someone much more eloquent than me, Professor John Langbein;

"I describe plea bargaining as a system of prosecutorial tyranny. What has happened is that a single officer, the prosecutor, now is in charge of investigating, charging -- that is, bringing formal charges -- deciding whether to prosecute, evaluating that evidence, [deciding] whether or not in his or her judgment you're guilty or not, and then basically sentencing you. So that in place of a system which our constitutions have all devised, which is one in which the power, the awful power, to inflict criminal sanctions on an accused, is dispersed across prosecutor, witnesses, a judge, jury, sentencing professionals -- instead of all that, what we have now is a system in which one officer, and indeed a somewhat dangerous officer, the prosecutor, has complete power over the fate of the criminal accused."

Posted by: Anonymous | Dec 1, 2007 12:29:27 PM

To those who may be interested:

It has been alleged that the term "enemy combatant" was "dreamed up" recently by the Bush Administration, "probably on the back of an envelope," to circumvent national and international law.

In fact, the term "enemy combatant" was used by the Supreme Court in its decision in Ex Parte Quirin, 317 U.S. 1 (1942). The Court used it in writing the following sentence:

"The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals."

The Quirin case upheld convictions and death sentences imposed by a secret military tribunal convened under the authority of President Roosevelt in July 1942. The convicted enemy combatants, all Nazi saboteurs, were executed on August 8, 1942, within a week of the judgment (although the opinon was not handed down until October).

Or to put it in a nutshell, the term "enemy combatant," far from being "something recently dreamed up" by the executive branch to avoid the rule of law, was an intentionally significant phrase in a Supreme Court opinion authored slightly more than 65 years ago.


Posted by: Bill Otis | Dec 1, 2007 12:59:17 PM

Holly cow Bill, but "nutshell” seems the right choice of word here. Am I missing something or is the precedent you cite one that warns us to be very cautious before finding excuses to avoid the rule of law? Secret court convened in July, a decision in early August followed by execution within a week, and appellate review only afterwards? I guess there were other saboteurs massing but – we should all be grateful – were dissuaded by the executive’s quick action! Bravo!

Posted by: Anonymous | Dec 1, 2007 7:22:55 PM


The principal point of my post was to show that the phrase "enemy combatant" was not, as had been quite aggressively claimed by Peter, a recent concoction by the Bush Administration, but was instead introduced into the law of war fully 65 years ago by the Supreme Court.

I briefly summarized the case, Ex Parte Quirin, 317 U.S. 1 (1942), in order to give the context, and in particular to show that the Court's use of this locution was not mere happenstance.

So far as I am aware, a Supreme Court case that has never been overruled -- and Quirin has not been -- is a part of the rule of law, not an evasion of it.

If you doubt any aspect of my description of the case, I suggest you just go read it for yourself. You have the citation. I can tell you that the Court's review of the death sentences was completed before they were carried out. The opinion was not released until two or three months later, however.

As with the criticism of FDR's action in Quirin, and of Truman's using the atomic bomb on Imperial Japan, it's easy enough for those of us whose safety and freedom were preserved in significant part by those decisions to sneer at them from the safe distance of 65 years.

Easy, but unworthy. And wrong.


Posted by: Bill Otis | Dec 1, 2007 7:51:27 PM

Bill - ok, I put my hands up. I should have realized that a combination of two words was bound to have been used by someone in the past. The point is, to spell it out, a whole new meaning was assigned to the term - illegally, unsupported under US or International law, and more importantly perhaps leading to the (continuing) abuse and destruction of people in a manner totally inconsistent with the proclaimed values of the American people. We are supposed to be the "good guys". When we set aside those values as a convenience for a "war on terror", we lose the moral authority for that war, and lose also our own self-respect.
But we digress.

Posted by: peter | Dec 2, 2007 5:22:55 AM

A whole new meaning was assigned to them? Here's a few relevant snippets from Quirin:

"After the declaration of war between the United States and the German Reich, petitioners received training at a sabotage school near Berlin, Germany, where they were instructed in the use of explosives and in methods of secret writing. Thereafter petitioners, with a German citizen, Dasch, proceeded from Germany to a seaport in Occupied France, where petitioners Burger, Heinck and Quirin, together with Dasch, boarded a German submarine which proceeded across the Atlantic to Amagansett Beach on Long Island, New York. The four were there landed from the submarine in the hours of darkness, on or about June 13, 1942, carrying with them a supply of explosives, fuses and incendiary and timing devices. While landing they wore German Marine Infantry uniforms or parts of uniforms. Immediately after landing they buried their uniforms and the other articles mentioned and proceeded in civilian dress to New York City."


"By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals."

I don't see anything about the current application of the doctrine being dramatically different than it's original definition. While I think it's readily debatable whether the "war on terror" is a war, most challenging this status insist upon treating these folks as "prisoners of war," implicitly recognzing that conflict is ongoing.

For the Gitmo folks, the general allegations are that they were training (or aiding those training) in secret to blow up things in America -- seems fairly on point with those named "enemy combatants" some sixty-five years ago.

Posted by: JustClerk | Dec 3, 2007 1:00:22 PM

JustClerk -
I prefer the scholarship of these folk on the matter:

1.We're All Enemy Combatants Now
Aziz Huq directs the Liberty and National Project at the Brennan Center for Justice; co-author of Unchecked and Unbalanced: Presidential Power in Times of Terror (New Press, 2007); and recipient of a 2006 Carnegie Scholars Fellowship.

2. No Unlawful Enemy Combatants at Guantanamo
JURIST Contributing Editor Marjorie Cohn of Thomas Jefferson School of Law, president of the National Lawyers Guild

3. Remarks of Gabor Rona
International Legal Director of Human Rights First
Legal Advisor in the Legal Division of the International Committee of the Red Cross

Posted by: peter | Dec 3, 2007 4:26:42 PM

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