It came by email yesterday. And then it came again, this time personalized just in case it was ignored the first time. Human Rights Watch produced a 126 page report about plea bargaining, because it hasn’t been discussed to death enough. I tried to ignore the press release, but I knew that it wasn’t going to work. I’ve come to despise press releases.
There was no way not to get sucked into this discussion again because people who were clueless, who had never defended a person accused of a crime in federal court and never negotiated a plea (or went to trial in a criminal case) would be all over this like flies on, well, stuff flies just can’t not be on.
So I started to read the report. And it didn’t take long before it devolved from calling for the reforms of the simplistic solutions that we have long sought, to reach the part that made my head explode. I didn’t want to read it. I didn’t want to know it was there. But there it was, on page 3.
Our recommendations would not eliminate plea bargaining. Prosecutors could offer modest sentence reductions to reward defendants who choose to plead guilty. But prosecutors would no longer be able to force defendants to plead to avoid grotesquely long sentences. They would be required to charge offenses carrying sentences proportionate to the defendant’s crime and culpability, they would be limited in the extent of the discount from those sentences that could be offered in exchange for the defendant’s willingness to plead guilty, they would be prohibited from threatening superseding indictments with higher charges in order to secure a plea and, finally, they would be prohibited from filing such indictments to punish defendants who refuse to plead.
This is where good intentions take us down the road to perdition, and it seems as if every time some organization with good intentions tries to help, we end up on the same road. So the answer to the disparity between low sentences (which, I might add, really aren’t nearly as low as they often appear from the outside of a case) on plea bargains and “grotesquely long sentences” after trial is (drum roll): make the sentences available for plea bargains longer.
What is obvious to those of us who have to actually deal with the reality in the trenches is that theories cut both ways. On the one side, there is the argument that the “grotesquely long sentences” are too long, which means that the “trial tax” is too high. On the other side, by seeking to align the two sentences, the only thing you accomplish is increasing the burden on the low end to make the sentences available on a plea longer.
Does Human Rights Watch seriously seek to compel prosecutors to charge as hard and fast as possible, leaving no leeway for bit players in larger crimes to cop out with less than the rest of their natural lives on the line?
HRW seeks to temper the abuse of outrageously long sentences by imploring the Attorney General to be more “reasonable”:
Establish just sentences as a Department of Justice goal for all drug offenders regardless of whether they plead guilty or go to trial. Define just sentences as those which are proportionate to the defendant’s individual conduct and culpability and which are no longer than necessary to further the purposes of punishment in each individual case.
What HRW doesn’t get is that the United States Attorneys think that’s exactly what they’re doing now. No AUSA thinks he’s Snidely Whiplash, doing evil merely because he can. On the contrary, prosecutors believe that what they do serves the interest of society and, to the extent there is any meaning to such a vague normative concept as a “just sentence,” that’s precisely what happens now. Sorry, but if “just” is your measure, then you’re just wasting pixels.
And aside from the elimination of mandatory minimums, and possibly the gun enhancement, I don’t suspect any judge anywhere will agree that he’s not imposing sentence in accordance with 18 USC §3553(a), as the law dictates he must. Since Booker, ending the tyranny of mandatory imposition of Guidelines sentences, this has been the rule.
Many of the recommendations of the HRW report are the same old stuff that FAMM, criminal defense lawyers, the ACLU and pretty much everybody at the table at the far side of the courtroom has been arguing for. For years. Nothing to see here.
But since the discussion has raised its stupid head again, and will likely go through another round of lawprofs and talking heads and people who have never actually had to do any of the things involved in the discussion opining about what should happen with the lives of people they’ll never know, it needs to be said again.
Keep your dumbass mitts off making reasonable plea bargains less reasonable.
Yes, we hate the trial tax as much as you do. Yes, we hate the grotesquely long sentences a lot worse than you ever will, as we actually look into the faces of the children who will never see their parent again. And the mandatory minimums are a nightmare. Yes, we know all this, and we know it a whole lot better than you.
But what we also know is that trials aren’t nearly as much fun as you think they are. We know that a year or two of wiretaps really suck, especially when the judge who signed the orders gets to decide the Franks motion. We know how juries really don’t believe the presumption of innocence, no matter what they say in voir dire, and that they really do believe that the clean-cut, all-American agents really wouldn’t arrest our ratty-assed clients if they hadn’t been guilty.
Yes, it’s the outrageously long sentences that impact recommendations to take a plea, but it’s also the overwhelming amount of evidence federal agents are able to amass, the inability to obtain discovery, the lack of funds to counter the evidence even when it’s wrong and misleading, the fact that our clients aren’t schooled in the art of testimony and can’t get on the witness stand without being made a lying fool on cross-examination. What do you plan to do about these problems, HRW?
So yeah, a lot of defendants cop out, and the trial is dying. We’re no happier about it than you are. But that clients can get a sentence a third of what they would face if the full force of Congress and the Executive branch drops a ton of shit on their head may be the only saving grace for human beings who don’t deserve to spend the next few decades in prison.
Don’t take that away.