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But because of their inordinate power, even more rides on individual prosecutors and their supervisors. Prosecutorial discretion in deciding what cases to pursue and what charges to bring is indispensable to balance the many factors that must be considered in each case. When used judiciously it can deliver consistent and tailored results. Because adversarial trials are an important bulwark against official overreaching and protect the fundamental right to liberty, US trials are presided over by independent judges, defendants have the right to counsel, the government has the burden of proof, the defendant has the right against self-incrimination, and numerous evidentiary and other rules seek to ensure the fairness of the trial process.
Appellate review provides additional layers of transparency and protection. In contrast, plea bargaining in federal drug cases offers little or no guarantees of transparency, discovery, and fair play. Judicial and appellate review of the plea bargaining process is also limited and superficial. Nevertheless, plea bargaining has become ubiquitous in the United States.
Its defenders argue that plea bargaining permits more efficient resolution of criminal cases. The assumption is the parties are rational economic actors and they jointly agree on a plea that enables the defendant to avoid the anxieties and uncertainties of a trial and to save the government from having to expend the resources necessary to try the case and to spare it the possibility of an acquittal. They also consider plea bargains legitimate to the extent they allocate punishment fairly, i. Prosecutors can put such pressure on defendants to plead that even innocent defendants may succumb.
A recent analysis of trial data suggests that even defendants with strong cases and good chances of acquittal at trial are choosing to plead because of the enormous sentencing benefit of doing so compared to the sentencing risks they face should they lose at trial. Prosecutors face professional and institutional pressures that encourage them to secure convictions through pleas.
Pleading benefits us by saving resources. Defense counsel can do their best, but in federal drug cases they have relatively few bargaining chips and they have to counsel their clients accordingly, including clients who strongly reject guilty pleas. And everyone knows it. The process by which the guilty plea is secured can vary considerably in practice.
The greatest likelihood of a defendant getting a good plea offer often occurs between the initial complaint and the indictment. The plea may follow a single offer from the prosecutor; it may take numerous plea offers before the defendant agrees. There is no transparency to the plea process.
There are no formal rules governing whatever give and take occurs. While some federal prosecutors may reveal their evidence to defense counsel to stress the strength of their case and the wisdom of a plea, others do not. Defense counsel may have to evaluate the risks of trial in the dark.
Under the Federal Rules of Criminal Procedure, the prosecutor may agree in a plea agreement that the government will,. Some prosecutors refuse to offer any concessions in exchange for a guilty plea unless they want the defendant to cooperate with them. Defense lawyers told us that when prosecutors refuse to offer concessions, and they do not believe their client would escape conviction after a trial, they may advise their clients to plead guilty to the charges in the indictment without a plea agreement. When a prosecutor will consider a plea agreement, the negotiations typically involve one or more of the following: fact-bargaining, charge bargaining, and sentence bargaining.
A prosecutor should not stipulate to facts he suspects or believes to be false as part of a deal with the defendant; he should not deliberately mislead the court—or the probation officer who prepares the presentencing report the judge will use to help determine the appropriate sentence.
The prosecutor may agree to recommend or not to oppose a reduction for minor or minimal role even when the facts do not support that recommendation.
Criminal and Civil Enforcement
The pressure is placed upon the defendant by bringing a multi-count indictment and then trading away charges or counts more difficult to prove in return for a guilty plea to other counts or lesser charges. If the defendant agrees to waive her right to trial, the prosecutors then agree not to file the additional charges. Federal judges have little to do with the plea process itself; indeed, federal law prohibits them from participating in plea negotiations.
Joseph Ida was indicted in March and, along with other defendants, charged with being part of a cocaine and marijuana distribution conspiracy in New York City. The charges carried a year mandatory minimum and a maximum of life. As shown in the chart below, the government made four plea offers to Ida. Under the terms of the first offer, Ida would plead guilty to conspiracy to distribute kilograms of cocaine with a mandatory minimum sentence of 10 years and a guidelines sentencing range of 8 to 10 years 97 to months.
Ida pled guilty and on August 9 , he was sentenced to 63 months.
Prosecutors are not gladiators fighting for victory in a criminal justice arena. They are representatives of the United States. Most legal and ethical obligations of prosecutors address misconduct and malfeasance, e. Federal prosecutors should not file criminal charges or threaten to do so in plea bargaining when they do not believe the charges are supported by the evidence.
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But if the evidence is there, prosecutors may file or threaten to file whatever charges they choose. But the absence of utter arbitrariness is not the same as ensuring justice. To our knowledge, the Department of Justice has never explicitly encouraged or directed prosecutors to exercise their charging and plea negotiation authority to secure just sentences for all convicted defendants.
On the contrary, Department of Justice policy has long encouraged prosecutors to charge defendants with the most serious offense with the longest sentence consistent with his conduct that is likely to result in a sustainable conviction. But he also insisted that charging decisions should be made in the context of,. Indeed, equal justice depends on individualized justice, and smart law enforcement demands it.
In August , at a meeting of the American Bar Association, Holder publicly announced that federal laws were sending too many people to prison for too long, called for a rethinking of the role of prison sentences in promoting public safety and, more specifically, pledged his support for reform of federal mandatory minimum sentencing laws. Not waiting for Congress to act, he also issued a memorandum to federal prosecutors on charging and sentencing. As discussed below, his new charging policies, while welcome, are weakened by defective criteria and premises that may decrease their efficacy, even for the limited category of defendants to which they ostensibly apply.
In a speech before the American Bar Association in August, Holder acknowledged mandatory minimum sentences can lead to unduly harsh sentences for certain low-level drug offenders and he announced changes in charging policies for such offenders. He said,. Holder directed federal prosecutors to decline to file charges carrying mandatory sentences against certain low-level, nonviolent drug offenders. According to one analysis, only about of the more than 15, defendants convicted in FY might have received a lower sentence if the Holder memo had been in force then and fully implemented by line prosecutors.
Finally, we note that Holder acknowledges there may be charges filed that trigger mandatory minimum sentences for a defendant who prosecutors come to learn is a low-level, nonviolent offender. Holder notes the defendant could plead guilty to a lesser included offense. Such a scenario would leave the defendant forced to forgo trial in order to secure a fair sentence. Holder instructed prosecutors considering whether to file the enhancement to consider factors such as whether the defendant had a significant role in a criminal organization, used violence, the nature of his criminal history, and other factors.
Some current and former US Attorneys and assistant US attorneys describe a prosecutorial culture that values high sentences. One former US Attorney told us,. When pressed about the fairness of sentences that result from their decisions, prosecutors deflected responsibility for the outcomes, whether by plea or trial. Some prosecutors also told us that judges set the sentences. The sentence is a function of the charge. But when sentences are triggered by mandatory minimums and still powerful, albeit now advisory, sentencing guidelines that prosecutors can readily manipulate, prosecutors cannot legitimately disclaim responsibility for the sentences defendants receive.
There are certainly prosecutors who do seek reasonable sentences.
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Our office did a good job of avoiding unjust results…. We made decisions on the right basis. I will make choices to avoid outcomes that would be unfair.
Some prosecutors we spoke to took pride in making reasonable offers to lower or dismiss charges or to agree not to file higher charges to try to ensure low-level offenders do not receive lengthy sentences more appropriate for significant traffickers. We have no way to determine how many of the lower sentences obtained through plea bargaining are in fact fair, i. Our research does leave us sure that the intentional quest for fairness varies by individual prosecutors and by district. We are also sure that any quest for fairness ends once a defendant insists on standing trial.
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If a defendant rejects a plea offer and chooses to go to trial, prosecutors will at the very least try him on the original charges, even if they carry sentences the prosecutors believe are higher than necessary based on his conduct and culpability. A former prosecutor acknowledged,. Prosecutors endorsed the goal of using the sentencing differential to pressure defendants to waive their right to trial. We asked many prosecutors if they were troubled by the discrepancy between a plea offer of, say, 15 years and a post-trial sentence of 30 years or life without parole.
They were not. They see it as part and parcel of plea bargaining.
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He was fully informed and rolled the dice. Otherwise no one would ever plead guilty. Asked if the higher sentence post-conviction would satisfy requirements of proportionality and being no greater than necessary to serve the purposes of punishment, prosecutors essentially dodged the question. They fell back on the notion that defendants could have taken a plea and thereby avoided the higher sentence. Every time a prosecutor makes good on a threat to seek higher sentences for a defendant who will not plead has a chilling effect in other cases.
This is one of the reasons prosecutors carry out their threats. They want their threats to be effective at securing pleas in the current and future cases. To do so, they cannot get a reputation for bluffing or walking away from the possibility of hitting defendants who will not plead with higher sentences. Prosecutors may realize making good on their threat will lead to an excessive and unfair sentence, but maintaining their credibility often appears to take priority. The prosecutor told the judge,. In this section we present statistics that quantify the significantly longer sentences drug defendants receive if they go to trial rather than plead guilty.
We think they nonetheless illuminate the sentencing risk defendants face if they refuse to plead. As seen in Table 3, the mean sentence for all drug trafficking offenses in which conviction was obtained by plea was 5 years, 4 months, and the mean sentence for cases in which conviction was obtained at trial was 16 years, i.