At Popehat, Ken does something that needed to be done in his post delightfully entitled Crime: Whale Sushi. Sentence: ELEVENTY MILLION YEARS. A bit hyperbolic, since everyone knows that the sentence for whale sushi is never longer then 90,000,000 years, but Ken is allowed to stretch the truth a bit to make a point.
People reporting on federal criminal justice — whether journalists or bloggers — routinely report on the statutory maximum sentence that a defendant could hypothetically get, an oft-ridiculous figure calculated by taking all the charged crimes and adding up the maximum punishment for each. This is usually followed by some sort of pronouncement that THIS PERSON CHARGED OF MINOR CRIMES FACES MORE JAIL TIME THAN YOU’D GET IF YOU BEAT A TODDLER TO DEATH WITH AN UNCONSCIOUS NUN WHILE RAPING A BLIND LIBRARIAN, or words to that effect.Ken goes on to provide a working explanation of the federal Sentencing Guidelines, which (according to the USSC, at least) still provide the starting point for federal sentences. Every criminal defense lawyer who practices in federal court is well aware of the impact of the Guidelines. Indeed, one of the first things we do is get a working understanding of how the Guidelines would apply in a case, so that we can explain to our clients what they are facing.The problem is this number — the sum of the maximum sentence for all the crimes charged in a federal case — usually bears almost no relation to the sentence the defendant actually faces.
For those who think these stories of ELEVENTY MILLION YEARS influence plea decisions, they fail to comprehend that there are lawyers involved who, assuming they know their function, have provided a more accurate assessment. That said, the numbers under the Guidelines are often high enough to scare a defendant into a plea. The statutory maximums aren’t needed for that, even if we didn’t dispel the silliness off the top.
The fact is that stories of crime and punishment have long fascinated people, and so they are reported with abandon. By abandon, I mean inaccurately. Repeating statutory max’s is a common mechanism to catch people’s interest, to take the story from the sublime to the ridiculous. After all, who wouldn’t be astounded that whale sushi could land a chef in prison for ELEVENTY MILLION YEARS!!!
The problem is that it makes people stupider. This became painful during discussion of the Aaron Swartz suicide, where story after story recited that he faced decades in prison. Of course, there was no potential of that ever happening, but this framed the discussion and skewed any potential for meaningful discussion of what was wrong with the system. It detracted from focus on the real problems by presenting an absurd strawman problem. So many fine minds lost to such nonsense.
Whether non-lawyer or lawyer who doesn’t practice criminal law, the interest in the criminal justice system remains strong and broad. This is a good thing, as the more people interested means the more people who will pay attention to the things that go horribly wrong and the need to change for the better. But that positive is obscured when the wrong isn’t real, but just a rhetorical trick played by the ignorant or deceitful.
While many reporters simply don’t understand that these numbers are a meaningless sham, some do and play them up anyway. It creates controversy and gets them readers, and that’s more important than illuminating. Ironically, when a criminal defense lawyer tries to straighten out the misinformation, we’re frequently told that we’re the idiots who don’t get it. After all, how can so many credible sources be wrong?
Ken’s post was a public service. I wish I had written it, but deeply appreciate that Ken did so. If this takes some of the pizzazz out of the stories for you, and makes them a bit less fascinating, them’s the breaks. From where I sit, the stories are harsh enough when based on reality rather than some statutory max flight of fantasy. Better we discuss the real issues than engage in fantasy.Since Ken’s busy, I’m just writing to thank Instapundit, Boing Boing, Volokh, Will Wheaton, John Scalzi, Something Awful, Mark Cuban, Radley Balko, Gawker, Deadspin, Ars Technica, Hot Air, Zero Hedge, and James Taranto at the Wall Street Journal’s Best of the Web Today for all the links to this post. We hope your readers will stick around.
Special thanks to Paul at the New York Times (you know who you are) and all the guys at Reddit who pushed this post to the front page. Keep rockin’.
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In your experience, what % of defendants understand the guidelines and what % remain genuinely freaked out by the possibilities?
I asked Ken the same, and he answered “Maybe 5% ‘understand’ the guidelines in any significant way. They all remain freaked out, no matter how you assure them.” Gideon further chimed in that clients had to be told of these possible maximums no matter how unlikely, and it was appropriate to do so anyway because “they will get launched in state courts after trial.”
The numbers thus might be bogus as between lawyers, but they are still quite real to defendants, and they inform the defendant’s decision whether or not to plea. E.g., I don’t think it’s a stretch to conclude that “35 years” (or 50 with the superseding) was indeed rattling around the vast reaches Swartz’s mind as a possibility, no matter how many times he was told otherwise.
Uh oh. If I respond, will you complain that I’m stalking you? Nonetheless, I will risk your slings and arrows.
I think Ken’s estimate of 5% who “understand” the guidelines is high. I don’t make odds, so I have no number of my own, but I doubt that it would be more than 2% who actually understand how the Guidelines work. That said, the majority (50+%) eventually come to a working grasp of the basic Guidelines that relate to their case, after it’s been thoroughly explained three times. Mind you, these aren’t always the smartest folks, but even so, they come to appreciate the nuts and bolts of the Guidelines.
Gideon’s view is less relevant, as he’s a state PD and doesn’t do federal defense. I’ve never mentioned the statutory maximums to a client, as they aren’t relevant or material. Aggregating the max’s for 16 offenses is an utterly meaningless number, unworthy of the time it takes to add them up. That’s just not how federal sentencing works.
As for the total of the max’s being “still quite real to defendants,” they aren’t. First, because no lawyer would allow his client to cling to an absurd number, and would immediately and clearly disabuse him of the notion that it means anything. Second, defendants are inclined to cling to the best case scenario, not the worst. If anything, the problem we face is their hope that despite the Guidelines, they will somehow get probation per the parsimony clause even if that’s as absurdly unrealistic as their getting the statutory maximum.
The lawyer’s job is to keep it real for the client, so that decisions are based on reality rather than ignorance or fantasy. Is it possible that a lawyer is so totally incompetent or unethical that he plays into a defendant’s fear rather than helps his client make a meaningful decision based on facts? Sure, it’s possible. But to suggest that is the norm, and hence defendants are making decisions with wildly inaccurate information “rattling around” in their mind is not the case.
I always tell the statutory max to the client, because (if there is press) they will see it in the press. If we get a plea offer from the government they will see it in the plea offer. If they plead, they will have to agree they know what it is.
But I explain why it is irrelevant.
As a matter of client management, I find it counterproductive to tell them “information” that doesn’t aid in their understanding. The max is such a thing. When it appears in the press, they know to laugh at it. When it appears in the plea agreement, they already know what the Guidelines are. When they appear for allocution, they can truthfully state they know what the max exposure is, having seen it in the plea agreement. But they are always clear what the real numbers are, so that every decision they make going forward is grounded in reality.
I make no such complaint here. I like discussing ideas, not people, myself least of all, and here we’re discussing ideas.
I’d wonder many of those same unduly optimistic clients are at other times unduly pessimistic. I’ve heard complaints from criminal-defense lawyers about clients being bipolar about their prosecution; that seems to a minority, and more common among first-time offenders who don’t have the same familiarity with the system.
I certainly don’t know that firsthand for criminal defendants, but it would mirror personal-injury work: most clients understand the general parameters, with a small minority vacillating between certain victory and total defeat. We try to identify them before we take their case.
Any thoughts where this custom of announcing the maximum came from, and why it persists? It seems to me it is the worst of all possible worlds: U.S. Attorneys are simultaneously exposed to attacks for accepting pleas that are but a fraction of the “maximum” and attacks for piling on decades of prison time for non-violent offenders, while the public remains wholly ignorant of their own laws. I think it also anchors people to accept much higher sentencing: if a member of the public thought that some minor drug dealing was going to be 40 years and it’s actually 8 years, well, gosh, that’s not so bad in comparison.
This pleases you? That’s nice. When you ask reasonable questions rather than pontificate about things you know nothing about, I’m happy to discuss things with you. See how it’s a two way street?
Yes, there are defendants who are unduly pessimistic, but that tends to go toward losing at trial. I cannot think of a single instance in which a defendant, having been informed of how federal sentencing works, thinks he might be sentenced to the statutory max (even once, no less on all counts, which is essentially an impossibility). It’s a non-starter. It doesn’t happen. The only instance is the extreme outlier case, a Madoff for example, and those are, by definition, extremely rare.
Yes, some defendants are “bipolar” in the sense that they swing from unduly optimistic to unduly pessimistic, but that almost always related to winning/losing, not sentence. No competent, ethical criminal defense lawyer tell the defendant that he is guaranteed a win, no matter what the facts or law. Most defendants lack the necessary tolerance for ambiguity inherent in criminal law. This ambiguity is what gives rise to the stress that many defendant’s can’t take, not the max sentence.
As for why prosecutors announce statutory max’s, bear in mind that they don’t issue press releases in most cases, but only those which they think will get some play in the media. When they do, they use them to send messages, including deterrence messages (don’t do it or this will happen to you) and self-aggrandizing messages (look how we’re protecting your safety). At that point, there is little they can offer that has any factual basis, and so they resort to the easy and self-serving reporting of the statutory max.
And sometimes it backfires on them, such as when the public isn’t as thrilled with their prosecution as they are. Prosecutors are not immune from being tone deaf or myopic. They have their own peculiar perspective. Though for the past few decades, tough-on-crime messages have played well with the public, particularly given the government’s propensity to incite fear among the populace so it can then fix it with increasingly severe and intrusive measures.