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September 24, 2008

District Court embraces a sentencing approach to dealing with prosecutorial misconduct (and highlights the impact of effective scholarship)

I am pleased to report on a fascinating district court opinion issued today, US v. Dicus, No. CR 07-32-MWB (N.D. Iowa Sept. 24, 2008) (available for download below).  Among the fascinating facets of the Dicus opinion is its incorporation of the insights of a new piece of scholarship (recently discussed here) by Professor Sonja Starr titled "Sentence Reduction as a Remedy for Prosecutorial Misconduct."   Here is how the Dicus opinion starts and ends:

At a sentencing hearing on September 9, 2008, I announced that I was reducing the defendant’s sentence from the high end to the low end of his advisory guidelines range as a sanction for the prosecution’s serious breach of the defendant’s plea agreement. I would otherwise have sentenced the defendant at the top of his guidelines range based on his sales of marijuana to minors, which was a factor not reflected in his advisory guidelines range.  However, the Chief Judge of our district had already found the prosecution’s breach of the plea agreement to be prosecutorial misconduct, and I imposed the sentence reduction, at the defendant’s request, as the appropriate sanction for such serious misconduct. I now enter this memorandum opinion and order to memorialize more fully my rationale for granting a sentence reduction as a targeted remedy for serious and recidivist prosecutorial misconduct....

In this case, I find that a reduction in the defendant’s sentence, albeit one to the low end of his advisory guidelines range, when I would otherwise have sentenced him to the high end, is the appropriate remedy for the prosecution’s serious violation of the defendant’s plea agreement. Such a remedy provides both deterrence for the prosecution’s misconduct and an incentive to defendants to raise such misconduct.  Such a remedy also serves the “interests of justice” and shows “appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty.”  Santobello, 404 U.S. at 262-63.  Finally, the reduced sentence in this case still serves the purposes of sentencing, upon consideration of the pertinent § 3553(a) factors, in that it is sufficient, but no greater than necessary, to achieve all of the appropriate sentencing purposes.

Download dicus_prosmisconduct_092408.pdf

September 24, 2008 at 12:20 PM | Permalink


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Anything Judge Bennett writes about prosecutors should be taken with a canister of salt.



Posted by: | Sep 24, 2008 1:19:08 PM

As I read the opinion another judge found prosecutorial misconduct on two occasions - including the 8th Circuit..but I guess you blame Bennett for that...why not address the merits of the opinion.I suppose you have it in for Professor Starr, too. Let's address the merits ..seems like a "targeted remedy" and thoughtful remedy. Let's have some good give and take on the merits of Professor Starr's article and this opinion. any why don't you identify yourself rather than hiding at least Bennett put his name on it.

Posted by: Jason G.-law professor | Sep 24, 2008 1:40:11 PM

Well, I think the situation is a little different now than in 2004. In this case it is not Judge Bennett who found misconduct but the Chief Judge, Linda Reade. Although it is perhaps not surprising that Judge Bennett would try and get his digs in given his history, it seems at least in this instance he has allies.

In any event, I question whether this sentence reduction will have the effect he hopes. It seems to me that a rational prosecutor will not be deterred from misconduct by a sentence reduction that remains in the guideline range.

Posted by: Daniel | Sep 24, 2008 1:52:44 PM

Without reading the article, I wonder why this prosecutor was not fired, arrested, reported to the Bar and subsequently disbarred. There are too many bad apples in the prosecutor's office to just sentence defendants to the low end of the spectrum. Disbar these people and prevent them from ever hurting the system again.

Posted by: babalu | Sep 24, 2008 2:24:47 PM

"I wonder why this prosecutor was not fired, arrested, reported to the Bar and subsequently disbarred."

In addition, I'd like to know why, after I passed a certain age, the Easter Bunny and Santa Claus ceased visiting?!

Prosecutors have complete immunity for their actions. Indeed, the point of the article Doug referenced is that it's SO unlikely prosecutors will be held accountable, much less that the exclusionary rule would ever be applied in the face of their misconduct, that sentence reduction could be a type of sanction judges might actually use instead.

I think this is a great idea for district judges, actually. Judge Bennett even directly referenced Starr's article in the decision! Very cool.

Posted by: Gritsforbreakfast | Sep 24, 2008 2:34:16 PM

“Prosecutors have complete immunity for their actions.”

No they do not. They only have absolute immunity for charging decisions. They have qualified immunity for most of their other official actions.

Moreover, they have no immunity from bar actions or discipline within their office.

But, it isn’t clear how egregious the prosecutor’s conduct was.

All in all, I don’t think that sentence reductions are the right approach to prosecutorial misconduct in most cases. If a prosecutor engages in misconduct, the logic goes, that the state should not be entitled to whatever it seeks to do. In most cases, the state seeks to put a poor person in jail. So, the correct remedy is dismissal of the indictment, or maybe vacation of a conviction.

Trying to split the baby doesn’t help matters, since it acknowledges that the government still gets to put a poor person in jail, it just has to pay a certain “misconduct tax.” While this might appear just in some law-and-economics class, it doesn’t actually deal with the underlying issue that prosecutorial misconduct is a shorthand for the violation of a certain constitutional right.

The comments at “Sep 24, 2008 1:19:08 PM” were silly and likely left by a non-lawyer. Obviously, the finding of misconduct was made by a different judge here, the question is what the correct remedy was.

Posted by: s.cotus | Sep 24, 2008 4:15:25 PM

I don't see how this sentence doesn't get reversed if the government appeals. While the idea is unique and perhaps a justifiable branching off from the exclusionary rule, precedent in that circuit seems to say it's inappropriate to grant any relief when the defendant received exactly what he bargained for in the plea agreement.

I don't see a Circuit court buying the argument that no relief is okay if the trial court declines to impose an enhancement, but relief is appropriate when an intervening law guarantees that no enhancement will apply. Either way, the defendant gets the benefit of the bargain.

It's like a breach of contract case with no damages -- we don't penalize the breaching party to prevent them from breaching another contract with another party at some point in the future.

Posted by: NewFedClerk | Sep 24, 2008 4:25:35 PM

Give this district court judge a break. This is a judge that affirmed two death penalty verdicts - rejecting claims of prosecutorial misconduct- that easily could have been decided the other way. I would bet a small fortune that this judge is personally strongly opposed to the death penalty. Let's keep the discussion on the merits or lack thereof of the opinion and the law review article.

Posted by: Frank W. | Sep 24, 2008 5:32:15 PM

I've read the Starr article, and it makes a very persuasive case for sentencing reductions in these circumstances.

I'm also thrilled to see the bench taking legal scholarship so seriously. This raises the question what else we can do to make sure articles like this one come to the attention of attorneys and judges who are involved in the relevant cases (that is, in addition to Doug Berman's efforts to highlight these articles here at SL&P). For more on that thought, see: http://prawfsblawg.blogs.com/prawfsblawg/2008/09/thoughts-on-dis.html

Posted by: CBHessick | Sep 24, 2008 6:01:55 PM

"It's like a breach of contract case with no damages -- we don't penalize the breaching party to prevent them from breaching another contract with another party at some point in the future."

This is exactly the problem. It's amazing to me that when an ordinary person commits a crime one of the justifications for sentencing is the deterrent effect. Yet when a government actor commits some violation, we seem to think that this same justification shouldn't apply.

I quite agree with S.cotus remarks of the failure of the idea of a misconduct tax. Sentencing reduction will do nothing to deter misconduct unless the reduction is significant and harsh. I am a little leery of dismissing the indictment entirely, but a token sentence of one day in jail seems to me to strike a better balance. The criminal still has his record, and the prosecutor still gets his conviction, but there is a real penalty for misconduct.

Posted by: Daniel | Sep 24, 2008 9:38:38 PM

I agree. The only remedy is dismissal of the indictment.

Somehow it doesn't surprise that NewFedClerk is disappointed that in a someone spending less time in jail.

Posted by: S.cute.us | Sep 24, 2008 10:23:44 PM

I thought the opinion and the law review article were excellent reads. This remedy is a "real" one and strikes an appropriate societal balance by encouraging defendant's to raise government misconduct by AUSA's knowing that DCJ will rarely, if ever, dismiss an indictment and courts of appeals even more rarely approve. Why is the all or nothing approach which in practice is never approved a better solution? This opinion strikes me as a former prosecutor to be exceptionally through, well reasoned and crafted and very nuanced and "targeted" to remediate the obvious repeat prosecutorial misconduct. This remedy makes a ton of sense to me.

Posted by: Joseph P. O'Malley | Sep 25, 2008 9:53:45 AM

Isn't there a difference. NewFedClerk, when the Department of Justice repeatedly breaches plea agreements as compared to a private party breaching a contract?
After all, DOJ claims on their web page that their mission is : "to ensure fair and impartial administration of justice to all Americans." When they obviously fail to do that should there not be some remedy? Doesn't it make more sense to have a reduction in sentence rather than an outright dismissal. As any lawyer who does federal criminal prosecution or defense knows dismissal never happens and when it does it hardly ever sticks. If the defendat's sentence can and often is enhanced for his/her misconduct post plea or arrest why is it imporper to reduce his/her sentence for DOJ repeat misconduct?

Posted by: Thomas K. Claxon | Sep 25, 2008 10:10:11 AM

I think NewFedClerk is just one of those kids that likes to see as many people in jail as possible so that he can feel powerful. He has no problem with the government breaking rules or mistreating people so long as more poor people are put in jail, as he sees them as the enemy. (Either that, or he thinks he can get a job as an AUSA after clerking, which is unlikely.)

Yes, there is a difference between plea agreements and contracts. Plea agreements are LIKE contracts, but they are NOT contracts. The law of contracts is helpful to interpreting or construing them, but they are still not contracts.

Consider this:

In general, a contracts can be entered into by any party (some states hold that some parts of contracts made by infants are unenforceable)
A plea agreement can only be made by someone facing a criminal charge, and it cannot be made by cops. Sure, some cops will insinuate this to poor people, but a real American knows that cops can’t make deals. Poor Americans don’t know this, which is why they are poor. No estoppel or agency argument will save a poor person. Nor should it.

Courts only get involved with contracts when one side claims that it is breached.
A plea agreement must be approved by a judge in order to be enforceable. If the judge does not approve it, the parties act as if the agreement never happened.

Contracts are generally assignable.
Try as some defendants like, one can’t assign their guilty plea to a 3d party. But, it would be cool, right?

Only in special circumstances is the remedy for breach of a contract “specific performance” as the preference in American law is for a remedy “at law.”
The normal “remedy” for breach of a plea agreement is specific performance.

Posted by: s.cotus | Sep 25, 2008 10:38:17 AM

Joesph writes, "This opinion strikes me as a former prosecutor to be exceptionally through, well reasoned and crafted and very nuanced and "targeted" to remediate the obvious repeat prosecutorial misconduct."

I take this comment seriously. I am not a federal prosecutor and have never been one. My question is simple. Do you honestly believe that a sentence reduction of this nature is enough to deter future misbehavior? I can honestly say that if it were I doing the misbehaving, it wouldn't deter me. But perhaps this is why I am not a federal prosecutor and have never wanted to be one.

Posted by: Daniel | Sep 25, 2008 2:43:13 PM

Maybe it would be easily to simply refer the prosecutor for disciplinary proceedings, so that he could be disbarred and never practice anywhere again.

Posted by: S.cotus | Sep 25, 2008 4:05:03 PM

As a former federal prosecutor, I can say that it would have given me some sleepless nights and deterred me from future similar conduct. Would it have deterred all of my colleagues? No.

Posted by: GAPO | Apr 8, 2009 7:58:07 AM

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