So What’s New?

A front page story in the New York Times trumpets Sentencing Shift Gives New Leverage to Prosecutors.  Oh my, did I miss something?  Did I miss something that so monumentally huge, and so fundamentally affects my very own practice area? 


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.

The articles goes on and on.  And I read and read.  And read.  And at the end of this lengthy article, I realized something.  It’s not me who’s been asleep, but the New York Times.

The slide began in earnest with the Supreme Court’s 1989 decision in Mistretta, holding the 1987 federal sentencing guidelines constitutional despite every decision below them reaching the contrary conclusion.  The concept was simple, create mandatory guidelines to assure consistency in sentencing across the country.  That the guidelines happened to be outrageously Draconian was merely fortuitous.

The upshot was that charging decisions dictated sentence, and federal judges were reduced to bean counters.  Some judges balked.  Some didn’t. It took a lot of weight off judges when it came to sentencing, and for those whose sleep cycles weren’t subject to moral influence, it was one less problem to deal with.

Though I was still a young lawyer back then, the writing on the wall was immediately clear.  The risk of rolling the dice just went from bad to unbearable.  Lawyers raced down to the United States Attorneys office, because the last rat to flip was the one who took the weight. 

It was an incredibly effective means of assuring pleas, and by the use of some artfully crafted language of dubious reliability, it allowed most of the players to sleep well at night.  Each cooperation agreement provided that the 5K1.1 letter was contingent on the cooperator providing the government with truthful information, as opposed to information that guaranteed the cooperators friends, children or mothers would be convicted.  Of course, no rat who happened to provide information that nailed his mother was ever denied a 5K1.1 letter because it might have been bit less than truthful.

And thereafter came the inevitable rush of state legislators trying to show that they could be as tough as any other re-elected official by an assortment of criminal justice initiatives designed to assure that defendants wouldn’t challenge their charges.  Mandatory minimums, three-strikes laws, zero-tolerance.  Cool names, bro.  And highly effective in coercing defendants to plead guilty and get out of prison some day as opposed to never.

And then the Supreme Court began a series of decisions with Apprendi, then  Blakely and eventually in 2005,  Booker, holding the mandatory sentencing guidelines that had fundamentally altered the balance of power between court and prosecutor were now merely advisory.  It took a while for this change to filter through the system because no one believed the Supreme meant what they said, their having something of a credibility gap when they came back later to smack a lower court for accurately applying rules.

Throughout this period of time, defendants chose not to go to trial because the price of losing was unbearably high. Today, the Times reports:



“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.

Now?  Unheralded?  This is suddenly “coming into sharper view, according to academics who study the issue?”  There are a few hundred thousand defendants who could have told you this, most of whom have not only made their decisions based upon this reality, but have already completed their unduly lengthy sentence.  A few have died of old age since paying their debt for their youthful indiscretions.

It would be fine, maybe even welcome, had the New York Times gone on at great length about how the residual culture of the criminal justice system still made taking a case to trial a game of Russian Roulette, or how the trial tax continues to coerce defendants who are innocent or overcharged into sucking it up.  But to contend, as the articles does, that this is some newfangled notion that was just discovered by academics, as if it’s the criminal justice version of the speedy neutrino, is ridiculous and insulting.

Prosecutor’s manipulation of charging decisions, as empowered by the wealth of potential crimes created hourly by legislatures and Congress, by hare-brained “tough on crime” regimens, and by judges disinclined to heed Nancy Reagan’s advice, have produced a system that unduly coerces defendants to take pleas rather than challenge accusations, with the full support of all red-blooded Americans.

And Francisco Franco is still dead.




3 thoughts on “So What’s New?

  1. Gloria Grening Wolk

    I agree with you completely–with one exception. I think it is the reporter who just discovered this, and his ignorant editor who discovered this as a result of his report. Note how the article fails to mention Silverglate’s book, and just a bare few of the legal scholars who have written about this repeatedly.

    That’s what the Times gets for laying off experienced investigative reporters and filling the ranks with newbies.

  2. John Neff

    All of the history that is fit to print seems to be the new motto. The discouraging thing about this is that most of the comments on the web version of the article suggest that the readers did not realize it was history.

Comments are closed.