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December 4, 2011

Insightful commentary questions why Blago is getting huge break from federal prosecutors

Alison Siegler, who directs the Federal Criminal Justice Clinic at the University of Chicago Law School (and who once honored me with an invite to her class there), has this fantastic new op-ed in the Chicago Tribune, which is headlined "The advantage of being Blago." Here is the text, every line of which merits emphasis:

Rod Blagojevich is a lucky man.  He is lucky that the U.S. attorney's office is asking U.S. District Judge James Zagel to send him to prison for only 15 to 20 years.  He is lucky that the prosecution is not asking for him to do 30 years to life in prison, which is the amount of time called for by federal sentencing guidelines — the laws that set punishment in federal cases based on the severity of the crime.

Blagojevich is especially lucky that he is not my recent client, a drug-addicted man who grew up on the South Side and pleaded guilty to selling two ounces of drugs to a government informant for $200. I represented this man, and the same U.S. attorney's office asked Zagel to follow the sentencing guidelines strictly and send him to prison for up to 27 years. Luckily for Blagojevich, the prosecutors filed a motion asking for a far lighter sentence for the former governor who, they themselves contend, deeply damaged the integrity of the political system by trying to hand over a U.S. Senate seat in exchange for $1.5 million in donations and then blatantly lied about his conduct on the stand.

The U.S. attorney's office is treating Blagojevich shockingly differently than it treats poor, minority defendants charged with less serious crimes. I have been representing indigent defendants in Chicago for nearly a decade, and in almost every one of the hundreds of cases I have litigated, the U.S. attorney's office has asked for the guidelines sentence, which is usually quite harsh. But in Blagojevich's case, the prosecution has asked the judge to chop the guidelines sentence in half.

It might be different if the prosecution's request for a sentence below the guidelines were supported by facts about Blagojevich or his offense that merit leniency. But the prosecution argues strenuously that Blagojevich's personal circumstances do not warrant mercy and that his crimes were heinous and driven by greed. They wax rhapsodic about his "extensive corruption of high office." And then they inexplicably request a sentence that is fully 10 to 15 years lower than the sentence they would request if this were an ordinary case.

Perhaps the prosecution's request in the Blagojevich case is driven by a sense that the guidelines sentence is not always the just sentence. If so, the prosecutors should also take a hard look at their practice of requesting guidelines sentences for indigent defendants, and should question whether it is fair to demand that a man spend up to 27 years in prison for selling a small amount of drugs to their own informant.

Otherwise, the prosecution's sentencing request is not fair. The inescapable message the request sends is that the lives of privileged defendants who have been given every opportunity and have nevertheless flagrantly violated the public's trust are worth more than the lives of impoverished defendants who have caused far less societal harm. This message undermines the public's faith in the fairness of the system and reinforces the perception that there are two very different kinds of justice, one for the haves and the other for the have-nots.

Before sentencing day(s) this coming week, I will have a series of addition posts that will discuss some of the additional insights we can and should take away from the run up to Blago judgment day.

December 4, 2011 at 09:23 AM | Permalink


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1. Ms. Siegler does a lot of speculating about why the USAO made its recommendation for Blago, but, so far as her article reveals, she never did the one thing you'd expect from someone teaching at a law school: ask. Some of us think inquiry is better than speculation.

2. Since speculation is the order of the day, however, here's mine, having been at the business for quite some time.

The government asked for a below guidelines sentence because it thinks, based on experience, that this is in the ballpark of what it can actually get from this judge, and that if it asks for something higher, the judge will just disregard its recommendation entirely.

Ms. Sieler, like so many others, likes to see racism behind every prosecutorial decision, never -- so far as her words reveal -- thinking that practical realities and experience with a particular judge tell the tale.

The idea that the Obama/Holder-appointed US Attorney in a thoroughly liberal and heavily minority city like Chicago is a racist is absurd, but Ms. Sielgler is evidently too invested in her racism-is-everything world to see it.

Posted by: Bill Otis | Dec 4, 2011 9:46:46 AM

I don't necessarily agree with all of her points, but the bottom line is that the USAO probably should explain itself here, and there is nothing wrong with people questioning the government here. Perhaps the USAO is motivated by the fact that Blago has already lost a lot. Who knows? As Bill indicates though, the first tack should be asking the question, rather than making thinly-veiled accusations of racism.

I don't think it can be forgotten that Blago tried to use government power to get people fired from their jobs. That's soft tyranny, and, in my view, means he ought to go to jail for the rest of his life. I think the USAO should have tried for more.

Posted by: federalist | Dec 4, 2011 10:56:39 AM

It is still unclear that Blago committed any crime outside of political horse trading. He was blatant and crude, but doing no worse than every other politician. So his sentencing is not really privileged, but represents scapegoating and grandstanding by the local federal prosecutor.

I strongly urge all innocent defendants to take on these Federal bullies. Demand all out discovery on all work and personal computers of both the prosecutors, and judge. Use every untoward utterance or image to seek their personal destruction. To deter. No one has ever done that. It will have to be done by a pro se litigant. The defense lawyer owes its job to the prosecution, and wants nothing to scare off or deter the federal bullies, and the little Caesars on the bench. It appears that attacking a judge is a bigger taboo than incest with one's mother in the legal profession. After all, the judge is the source of the make work jobs. Mothers are not.

Posted by: Supremacy Claus | Dec 4, 2011 12:45:15 PM

After I was convicted in the Abramoff scandal, the government told the probation officer that the appropriate offense level for me was a 43, a sentence of life in prison. (The government had recommended 4 years for Abramoff and 2 years for Michael Scanlon.) After agreeing to use the 2003 guidelines rather than the 2010 edition, the government said the range was 17 to 22 years. They did not concede that life was excessive, mind you, but just that the wrong edition of the guidelines has been used. The judge pushed back, noting that the government used a high calculation for loss despite not even trying to calculate loss for earlier defendants who pleaded guilty. As my attorneys argued, if the guidelines were designed to do anything, they were meant to treat similar defendants alike, and in my case, this goal was ignored by the government who argued that the willingness to plead guilty justified any discrepancy in recommended sentences. The judge concluded that the appropriate guideline range was 46 to 57 months. In response, the government sought 50 months and stated all the reasons why that was appropriate. The judge asked what the government would have argued had she agreed with them on the 17 to 22 year range. The prosecutor said he didn't know and that perhaps he would have sought something below.

I share all this to make this point: the op-ed writer is right that judges seem more willing to go below the guidelines for white-collar offenses than, say, drug offenses. But so are prosecutors, though they do not like to admit it. This consensus among reasonable prosecutors and reasonable judges to ignore the guidelines (in practice) is the product of the fact that the fraud guideline is ridiculous. It is so malleable as to be unworthy of respect. That flexibility might be helpful to prosecutors seeking to browbeat a defendant into a plea (much as mandatory minimums do for drug and gun offenders), but it does not promote parity or fairness.

-Kevin Ring

Posted by: Thinkaboutit | Dec 4, 2011 1:32:35 PM

Mr. Ring, yours is an interesting perspective.

What's your view of Blago's attempt to get editors at the Trib fired? To me, that calls for life. You simply cannot do that as an elected official (i.e., use government power to coerce someone's firing in the private sector).

Posted by: federalist | Dec 4, 2011 1:38:33 PM

Thinkaboutit --

Thank you for identifying yourself and giving some background. I admired your book about Justice Scalia.

Posted by: Bill Otis | Dec 4, 2011 1:58:31 PM

Siegler leaves out -- presumably purposefully -- a vital piece of information: What was her client's criminal history? By leaving out something so obvious, she invites us to believe that she is operating in bad faith, and that her client in fact has a huge number of prior convictions.

That may or may not mean her client's sentence was just. But by depriving us of the info needed to make a meaningful comparison, she eviscerates all the power of her argument. Shame on the Tribune editors for not demanding that she add that information before publishing the article.

(And what's with the silliness complaining that her client only sold drugs to a government informant. Does anyone think he wasn't also selling drugs to others? I hope instruction at the U Chicago federal criminal law clinic is better than this article leads one to believe.)

Posted by: problem | Dec 4, 2011 2:03:46 PM

Excellent point, problem.

Posted by: federalist | Dec 4, 2011 2:15:39 PM

"Rod Blagojevich is a lucky man. He is lucky that the U.S. attorney's office is asking U.S. District Judge James Zagel to send him to prison for only 15 to 20 years."

Yeah, compared to the DP he is lucky. What is at work here is soemething the conservatives call "moral realativism."

Posted by: Anon | Dec 4, 2011 3:51:57 PM

Anon --

"What is at work here is soemething the conservatives call 'moral realativism.'"

What do liberals call it? A Democratic-run DOJ giving a break to a corrupt Democratic politician? Chicago ward politics as usual? What?

While we're at it, would you be happier if the government were seeking a HIGHER sentence for Blago? If so, it would be the first time I've seen one of the liberals here speak up for a within-guidelines sentence (except when the defendant is a sleazy Republican). But, really, do you want Blago to get a higher sentence than the one the government is seeking? If so, why? If not, why are you complaining?

Posted by: Bill Otis | Dec 4, 2011 4:59:37 PM

"the lives of privileged defendants who have been given every opportunity and have nevertheless flagrantly violated the public's trust are worth more than the lives of impoverished defendants who have caused far less societal harm."

Their lives are worth more. Such has it always been, such will it always be, forever and ever world without end, amen.

Posted by: Daniel | Dec 4, 2011 5:23:28 PM

Specifically, what damage did Blago's crime cause? Shouldn't a crime cause damage? The lawyer profession causes massive damage to our nation, allowing 20 million serious crimes by protecting the criminal, destroying the family, knocking growth to zero, instead of its more natural 10%, plundering the assets of all productive males, directly causing 9/11.

Yet, it feels sanctimonious, and gets away with its all out insurrection against the constitution with its supernatural doctrines. The profession is a devastating criminal cult enterprise, yet remains totally immune, thanks to its self dealt immunities.

Posted by: Supremacy Claus | Dec 4, 2011 5:27:07 PM

Bill - thanks. I am glad you liked the book.
Federalist - I didn't follow the Blago case closely enough to know the evidence. But in terms of pressuring someone in the private sector to fire an employee, I can tell you that members of Congress have been known to do it. Both parties used to have a version of the K Street Project, in which members push companies and/or trade groups to get rid of people working against them. Also, when Cassidy & Associates hired Abramoff, Sen. Inouye, one of the most respected members of the Senate, told Gerry Cassidy he wouldn't work with the lobbying firm until they got rid of Abramoff. Is that unethical? Just politics, i.e., not wanting to associate with certain people? You can decide but it's not as uncommon as you might think. But with regard to the specifics of Blago, I simply don't know enough to comment intelligently as to whether that situation was different.

Posted by: Thinkaboutit | Dec 4, 2011 8:06:44 PM

"The idea that the Obama/Holder-appointed US Attorney in a thoroughly liberal and heavily minority city like Chicago is a racist is absurd...."

I doubt he is a racist, but the current U.S. Attorney for the Northern District of Illinois is Patrick Fitzgerald, and he was appointed by George W. Bush, not Obama/Holder.

Posted by: Anon | Dec 4, 2011 8:55:08 PM

Anon --

That's true, and a fair point, (1) Obama can remove Fitzgerald at will, and (2) Fitzgerald, far from having developed a reputation as a racist, developed his reputation by going after and nailing powerful whites like Blago and Libby.

Posted by: Bill Otis | Dec 4, 2011 9:28:51 PM

The client was charged federally for selling 2 ounces for $200.00!?!? What was he selling? MJ costs less. I have never seen the feds prosecute this type of case as it is described. I bet there was a gun and an extensive criminal record.

Posted by: scott | Dec 5, 2011 8:24:21 AM

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