In curious juxtaposition to the recent pronouncement by Gage County, Nebraska Attorney, Randall Ritnour, that he will no longer plea bargain, comes this post from Doug Berman quoting the Iowa City Press Citizen.

Sgt. Mike Brotherton, who leads Iowa City’s gang and drug team, said he sees the same disparity between charges and plea deals. While it is frustrating for officers, Brotherton said there are further reaching implications.  “What you don’t see is what the consequences are,” Brotherton said. “What’s the end result? Very, very few go to prison.”…

Brotherton has found at least one way to avoid this issue — he takes cases to the federal court system.  However, it’s not easy to elevate a case to that level, he said.  In drug cases, there must be sizable quantities of drugs involved.  If a weapon is involved, the case can possibly go to the federal level as well.

These criteria are based on guidelines for crimes that are indictable at the federal level and ensure that the federal courts only get cases that are appropriate for their jurisdiction.  All types of robberies are prosecuted at the state level, but bank robberies often are prosecuted federally because of their federal protection.

There was a time when the notion of an overlap between federal and state jurisdictions would cause nothing but laughter.  The feds didn’t dirty their hands with the sort of petty, common crime handled in night court.  Federal criminal practice was very limited, addressing only those offenses that went far beyond local jurisdiction and dealt with true issues affecting interstate commerce.  Over time, however, the commerce clause was forgotten and the chaos theory of cause and effect prevailed. 

Congress, seeing the virtue of campaigning on “tough on crime” issues, refused to let only the local politicians get media play, and voted for law after law that poaches on local criminal territory until the two are essentially indistinguishable.  Granted, the feds still limit their interest to cases with more zeros involved, but that’s only because there aren’t enough judges to handle people who spit in the subway.  If there were, Congress would pass a law about it too.

In the late 1980s, if memory serves, federal day began in the Southern District of New York.  That was the one day a week that drug cases made by city cops would be taken over by the United States Attorney’s office.  The same case that on Tuesday would be arraigned on the lobster shift at 100 Centre Street went instead before a Magistrate Judge a mere 3 doors down Foley Square, for no better reason than it was Wednesday.  The poor schmuck’s life was altered forever by the fortuitous day of the week.  And there was nothing we could do about it.

For those who believe that the sentencing guidelines provided some level of rationality to the criminal justice system, pay attention to Sgt. Mike Brotherton of the Iowa City Brothertons.  He knows better.  He knows that passing through the door of one courthouse versus another will have a huge impact on whether, and how many, years are spent in prison.  If he wants to “get” somebody, he tries to turn it into a federal case.  Hey district court judges, did you know that your dockets were so heavy because your sentences were heavy too?  Do you care?  Is the sheer negative kismet of winding up in federal court really a good reason for an additional 121 months in prison?

Where there used to be a system based on jurisdictional distinctions, there is now one based on sentencing disparities.  Only the most trivial offenses, barely crimes at all, can’t find a way through into the federal courthouse.  The only limitation is whether a conviction will bring the United States Attorney enough glory (or cash at forfeiture) to make it worth his while.  So whose idea was it to “rationalize” sentencing across the nation, when we can’t even rationalize it down the street?

The cops know this.  The criminal defense lawyers know this.  The prosecutors know this.  Now you know too.