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September 26, 2011

"Sentencing Shift Gives New Leverage to Prosecutors"

26prosecute-graphic-popupThe title of this post is the headline of this lengthy front-page article appearing in today's New York Times. Here is how it gets started:

After decades of new laws to toughen sentencing for criminals, prosecutors have gained greater leverage to extract guilty pleas from defendants and reduce the number of cases that go to trial, often by using the threat of more serious charges with mandatory sentences or other harsher penalties.

Some experts say the process has become coercive in many state and federal jurisdictions, forcing defendants to weigh their options based on the relative risks of facing a judge and jury rather than simple matters of guilt or innocence. In effect, prosecutors are giving defendants more reasons to avoid having their day in court.

“We now have an incredible concentration of power in the hands of prosecutors,” said Richard E. Myers II, a former assistant United States attorney who is now an associate professor of law at the University of North Carolina. He said that so much influence now resides with prosecutors that “in the wrong hands, the criminal justice system can be held hostage.”

One crucial, if unheralded, effect of this shift is now coming into sharper view, according to academics who study the issue. Growing prosecutorial power is a significant reason that the percentage of felony cases that go to trial has dropped sharply in many places.

Plea bargains have been common for more than a century, but lately they have begun to put the trial system out of business in some courtrooms.  By one count, fewer than one in 40 felony cases now make it to trial, according to data from nine states that have published such records since the 1970s, when the ratio was about one in 12.  The decline has been even steeper in federal district courts....

The decrease in trials has also been a consequence of underfinanced public defense lawyers who can try only a handful of their cases, as well as, prosecutors say, the rise of drug courts and other alternative resolutions.

The overloaded court system has also seen comparatively little expansion in many places, making a huge increase in plea bargains a cheap and easy way to handle a near-tripling in felony cases over the past generation.

But many researchers say the most important force in driving down the trial rate has been state and federal legislative overhauls that imposed mandatory sentences and other harsher and more certain penalties for many felonies, especially those involving guns, drugs, violent crimes and repeat offenders.

Stiffer punishments were also put in place for specific crimes, like peddling drugs near a school or wearing a mask in certain circumstances.  And legislators added reams of new felony statutes, vastly expanding the range of actions considered illegal.

These tougher penalties, by many accounts, have contributed to the nation’s steep drop in crime the past two decades.  They have also swelled the prison population to levels that lawmakers in some states say they can no longer afford, and a few have rolled back some laws.

September 26, 2011 at 08:17 AM | Permalink


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This still approaches the issue from a position I find somewhat odd. What is the ideal conviction rate? As I see it, the ideal conviction rate is 100% with a 0% error rate. Of course we aren't going to acheive either of those, but are we getting closer on both, only one?

As Bill says, the reason the vast majority of defendants in the federal system plead is that they are guilty and know that the prosecution could prove it beyond reasonable doubt. Of course, federal prosecutors are in a position where they can pick and choose what cases they'll prosecute and they tend to take only the absolute strongest cases. I don't really see that as a bug though. Do we want prosecutors throwing resources at cases that even they aren't sure about? That seems silly to me.

I for one do not want a criminal justice system where a fair trial means that the defendant has a 50% chance of walking, that would indicate that prosecutors are not doing an effective job of evaluating their cases before bringing them, rather than indicating that the defense attorneys are somehow doing a stellar job.

Posted by: Soronel Haetir | Sep 26, 2011 8:54:21 AM

And the Times considers this breaking news because . . . ? This story could have been run (and written) at any point during the last 25 years or so.

Posted by: LShulman | Sep 26, 2011 9:04:31 AM

Some helpful advice for readers of this blog:


Posted by: anon | Sep 26, 2011 12:03:01 PM

well soronel i think the entire sytem is illegal. when the u.s. supreme court decided against the constuiton to allow plea bargains it was to be used in LIMITED tough circumstances. NOW it is 90% of ALL criminal convictions. Which is in fact a DIRECT constutional violation of the CONSTUTIONAL RIGHT to FACE YOUR ACCURSERS!

Posted by: rodsmith | Sep 26, 2011 12:36:04 PM

plus what's that old saying

"absolute power corrupts ABSOLUTELY!"

our govt and court sytem has been heading that way for decades!

Posted by: rodsmith | Sep 26, 2011 12:39:08 PM

The odds are now tilted even WORSE toward going to trial for Federal Defendants because of asset forfeiture. The Feds seized my house,(not literally---real estate is seized by the Feds filing a lis pendens which effectively kept me from selling it or borrowing against it to obtain $ for legal fees), numerous bank accounts etc. It then took them 14 months AFTER the seizures to indict me (seize first, investigate later) and ANOTHER 18 months to bring me to trial, where I was acquitted of all charges. I faced a possible decade in prison for each of the 12 counts against me, plus the permanent loss of my home, my life savings etc. I was appalled to read the Grand Jury testimony (it was provided to me)---where the prosecutor stated "well, to be fair, her attorney has stated quite vehemently that she had nothing to do with this crime" (paraphrased)---and the State investigator who was cooperating with Feds stated bogus reasons he didn't believe that was true---all entirely circumstancial facts. It didn't stop the indictment.
I am so blessed to be able to afford private counsel who was able to competently get me thru a three week trial and get the right result from a jury....but the stakes were thru the ROOF if we had failed. I have minor children, I would have lost my home etc.
The point is, even MORE trials are not going to happen because now the Feds can sweep in, seize all the assets they can find on mere probable cause, and then take the position of "go ahead, fight us now---that we've taken all your money and assets." Again, the Government seized the bulk of my assets FOURTEEN MONTHS BEFORE ANY INDICTMENT---they can do it ex parte, via civil forfeiture, and then ex parte, stay the case. Unless you are flat broke and desperate, you can not even getting a hearing before the judge to protest.
The odds continue to be stacked incredibly high against defendants (and yes, I am getting my house back---but the fight over the bank accounts is still to come---three years and counting)

Posted by: folly | Sep 26, 2011 1:46:15 PM

I agree with Bill that the overwhelming majority of defendants are likely guilty or somehow involved. Because the rate of pleas is now close to 95%, it means that most defendants are serving reduced time for a fictional crime. A judge says, the prison is overcrowded. Lower the population by 25%. The executive branch say, release non-violent prisoners close to finishing their sentences. Only the indicted crime should be used to make that decision, and never the pled crime. If there is a three strikes law, always examine the first two crime indictment. I can imagine a violent drug kingpin is caught shoplifting, and gets a life term. He is a non-violent offender, as far as the adjudicated charge, but his release under a court order would be a huge mistake.

Innocent defendants or people guilty of trumped up, made up mala prohibita should always go to trial. The Supremacy offered, at its own expense, to seek the personal destruction of a federal prosecutor (a hobby of the Supremacy, to deter), and to have the indictment of an agency it served overturned on policy grounds. The agency declined, and accepted a truly bargain basement discounted payment plus a corporate compliance program. Five years later, the boss says, he wishes he had accepted the offer of the Supremacy. That corporate compliance program was far more disruptive and expensive then any total defeat in court, and the payment of an even higher amount than first feared.

If innocent, go to trial pro se. One has a better chance of an innocent verdict than by using a do nothing, lazy, prosecutor dependent, defense lawyer, often a friend of the prosecutor. One may seek advice from an experienced lawyer, although in some jurisdictions that advice may considered a type of misleading of the court and unethical (submitting a motion under one's name written by a real lawyer not named). Check with the local court for its attitude before seeking advice.

Then do stuff no defense lawyer would do. Do total e-discovery on all the computers of the prosecutor, looking for an improper motive such as racial animus, gender bias, conflicts of interest, etc. Do the same with the judge after any adverse ruling, looking for bias (never done in history, but high time these little caesars tasted their own medicine. Judges are lazy, slow shuffling, rent seeking government worker vermin as a generality. They are biased in favor of lawyer procedure, legally immune. They should receive no quarter, and get attacked from possible angles. To deter.). Demand recusals until they run out of judges willing to serve. Mount a campaign of personal attack on both. Call their mothers and demand to know why their spawns are persecuting innocent people. Attend their churches and propose they be shunned for their sinful, unChristian conduct. Prosecutors feel absolutely free to try to disgrace the defendant on TV. Return the favor.

Posted by: Supremacy Claus | Sep 27, 2011 8:05:56 AM

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