Thoughts on the Holder Address: Two Cheers for the New Paradigm

In August, Attorney General Eric Holder delivered a widely noted address to the American Bar Association that seemed to promise significant changes in federal prosecutorial policies.  I wrote these reactions for the Federal Sentencing Reporter.

Following decades in which the U.S. Department of Justice has consistently advocated for a rigid and harsh legalism in criminal justice policy—in which DOJ, in the name of abstract principles of national uniformity, has willfully disregarded the devastating impact of its charging, plea-bargaining, and sentencing practices on real-life human beings—Attorney General Holder’s ABA address seems a breath of fresh air. He calls for a more flexible federal criminal justice system, in which prosecutorial charging priorities are more specifically tailored to meet local needs, in which sentencing is more individualized to the offender and prosecutors sometimes forego mandatory minimum sentences, and in which individual U.S. Attorney Offices experiment with new diversion programs as an alternative to conventional case-processing. Holder believes—correctly, I think—that a more flexible and pragmatic system can achieve better public-safety results at a lesser cost than a system in which preserving the integrity of the federal sentencing guidelines is the overriding value.

Through Holder’s address, DOJ offers its most prominent and unequivocal endorsement yet of an emerging new criminal justice paradigm.   (more…)

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New US DOJ “Smart on Crime” Policy

AG Holder’s remarks to the ABA earlier this week, announcing new DOJ initiatives, are here.  The related “Smart on Crime” report is here.  Press coverage of the Holder speech focused on the announcement that federal prosecutors would no longer seek to have “draconian” mandatory minimums imposed on low-level drug offenders, but there are other interesting aspects to the new policy, including expanded compassionate release for federal prisoners and a new focus on reentry and collateral consequences.

It seems to me that just about everything here could have been said, and should have been said, two decades ago by AG Reno.  Still, better late than never . . . .

Ironic that this federal backing away from mandatory minimums occurs the very same week we see a push in Wisconsin for new mandatory minimums at the state level.

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“You’re Paying Me for My Discretion” vs. “We’re Soldiers in this Army”

Do we want prosecutors who feel themselves empowered to do justice as they see it on a case-by-case basis, or do we prefer prosecutors who think of themselves as bureaucrats or cogs in a machine, rigidly adhering to the mandates of a head prosecutor?  That’s the question that was foremost in my mind as I read Kay Levine and Ron Wright’s thought-provoking new article, “Prosecution in 3-D,” 102 J. Crim. L. & Criminology 1119 (2012).  The article analyzes information collected in interviews with dozens of prosecutors in three different offices, including the quotations in the title of this post, which seem to nicely distill competing viewpoints on the line prosecutor’s discretion.

Critics often lament the scope of prosecutorial charging and plea-bargaining discretion, which can be difficult to reconcile with rule-of-law ideals.  However, Levine and Wright’s research makes clear that prosecutorial discretion is not a monolithic phenomenon, but may function quite differently in different offices.  They focus particularly on the significance of two variables relating to office structure.  They summarize as follows:   (more…)

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Federal Criminal Cases, 1928-1930: Surprisingly Similar to Today, But Also Very Different

In anticipation of the conference here next month on the Wickersham Commission, I’ve been reviewing the thirteen voluminous reports the Commission issued in 1931 on various aspects of the criminal-justice system.  One that holds some interesting surprises is the “Progress Report on the Study of the Federal Courts.”  The heart of this report is a fascinating, detailed statistical analysis of the criminal cases in the District of Connecticut for fiscal years 1928-1930.

One thing that strikes me as remarkable is the almost complete absence of trials — the system was dominated then, as now, by guilty pleas.  Old-timers today will sometimes tell you about a golden age of trials in the federal system in the 1970’s.  In that decade, guilty plea rates hovered between 77% and 82%.  After 1981, the rate climbed steadily, reaching more than 96% of adjudicated cases in 2009.  But this, apparently, is not a new phenomenon.  Among 740 criminal cases filed in the District of Connecticut between 1928 and 1931, only nine went to trial.  That’s right, only nine trials in three years.  (Eight of these, by the way, took less than one full day to try.)  The guilty plea rate in adjudicated cases was over 98%.

After doing some digging for national data, I discovered that the guilty plea rate rose steadily between 1916 and 1933, reaching a peak of 91%.  (See Ron Wright’s helpful data compilation here.)  So, Connecticut seems not to have been terribly atypical.

The Connecticut data are, in fact, strongly reminiscent of a modern “fast-track” plea-bargaining system.  (more…)

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Your Constitutional Rights Are Much Weaker Than You Think They Are — So What?

Michael Cicchini has an entertaining (in a dark, ironic sort of way) new book.  The title pretty clearly indicates Cicchini’s perspective: Tried and Convicted: How Police, Prosecutors, and Judges Destroy Our Constitutional Rights.  The heart of the book is a survey of our basic constitutional rights, one chapter per right.  A central theme in this survey is that the courts have interpreted the familiar Fourth, Fifth, and Sixth Amendment rights such that they are, as Cicchini puts it, “soft law” — “vague, malleable, and subject to a tremendous amount of discretion under a facts-and-circumstances type of analysis.”  (11)  In his view, this approach to constitutional rights stacks the deck in favor of police and prosecutors and against defendants.  The soft formulation “allows the police to create the facts and circumstances necessary to circumvent — or, more accurately, destroy — constitutional rights.”  (15)  Prosecutors and judges, Cicchini observes, may do the same.

The result is a set of constitutional rights that are probably much less protective of defendants than many laypeople realize.  Cicchini identifies the major absurdities and unexpected gaps in the law.  I don’t know if Cicchini is an admirer of the late Christopher Hitchens, but his excellent blog features a quote from Hitchens, and Cicchini seems to take a similar delight in skewering hypocrisy and intellectual laziness.  Although the book is intended for a general audience, Cicchini’s acerbic prose makes it a good read even for someone who is already familiar with the legal issues he discusses.

But, aside from entertainment value, what is the point of demonstrating that the courts are, to put it charitably, inconsistent in their support of defendants’ rights?   (more…)

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Crimmigration and Discretion

For people like me who do not regularly follow immigration law and who are only dimly aware of the recent emergence of the new field of legal practice and scholarship known as “crimmigration,” David Alan Sklansky has a terrific new article with a wealth of data demonstrating the “vanishing boundary” between criminal law and immigration law, as criminal enforcement of immigration laws has skyrocketed and as deportation has increasingly become a favored tool of law enforcement in dealing with suspected criminals.  In addition to the fascinating data, Sklansky also supplies an insightful new explanation for the rise of crimmigration — one that centers on what he sees as a growing comfort level in the United States with the idea of giving front-line actors wide discretion to select from a range of law-enforcement tools in order to address threats to public safety.  I’d like to add another layer of nuance to Sklansky’s theory of discretion, but, first, here are some of the numbers from the article that I found particularly striking:

(more…)

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Felony Prosecutions Are Cheap

Earlier this week, the Bureau of Justice Statistics released the latest data from its periodic national surveys of prosecutors’ offices.  The report contains a lot of interesting information (albeit perhaps a bit dated — the survey was from 2007).

The number that struck me the most was $2,792 — what BJS reported as the cost per felony prosecution in large jurisdictions.  This seems to me a remarkably low number in light of the very high stakes in a felony prosecution, both for the defendant and the community (incarceration costs, for instance, may average in the neighborhood of $30,000 per inmate per year).  Is $2,792 in prosecutorial costs really enough to ensure reliable decisionmaking at the charging and adjudication stages of a criminal case? For the cost of a family vacation to Disney World, we are deciding to send people to prison for five, ten, twenty years or more?

From the standpoint of private litigation practice anyway, this would be an awfully small legal bill.  Admittedly, the comparison is problematic in many respects, but I don’t think it entirely irrelevant.

To be sure, the $2,792 both overstates and understates the costs in important ways.

(more…)

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Racial Disparities in the Federal Death Penalty: Uncovering the Key Role of Geography

The federal death penalty is plagued by two important types of disparity.  One is racial: as of last year, nearly half of federal death row inmates (28 of 57) were black.  The other is geographic: out of the 94 federal districts, just 16 have produced 75 percent of the death sentences, and 9 have produced nearly half.  Although both disparities have been much commented on separately, it seems they are actually connected.  Or so argue G. Ben Cohen and Robert J. Smith in an interesting new paper, “The Racial Geography of the Federal Death Penalty,” 85 Wash. L. Rev. 425 (2010).

Their thesis is simply stated.  A vastly disproportionate number of federal death sentences come from counties with high minority populations that are located in districts that are heavily white overall.  Think diverse urban cores surrounded by lily-white suburbs.  Given that federal juries are typically drawn from the entire district, this means that capital trials in these districts are apt to involve minority defendants being judged by white-dominated juries.  Having minimal racial diversity on the jury means that black defendants have little protection from the unconscious racial biases that most of us carry around.

The patterns are striking.

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CTA7: Sentencing Judge Cannot Consider Failure to Prosecute Coconspirator

On Friday, the Seventh Circuit ruled in United States v. Scott (No. 10-1597) that a judge sentencing one conspirator may not take into account the government’s failure to prosecute a coconspirator.  Here’s what happened.  In 2009, a federal grand jury charged Scott and a coconspirator with mail fraud.  Scott pled guilty and was sentenced to 63 months in prison, while, for unknown reasons, the government dismissed all charges against the coconspirator.  On appeal, Scott argued that the sentencing judge erred by not taking into account the unexplained dismissal of charges against the coconspirator.  In essence, his theory was this: federal sentencing law is intended to minimize unwarranted disparities as between similarly situated offenders, and the disparity between one conspirator getting a long prison term and the other one not even getting a conviction is a very profound one indeed.

The Seventh Circuit didn’t bite, holding categorically that “we reject the notion that a court may consider the coconspirator’s lack of a conviction under § 3553(a) because holding otherwise would deprive prosecutors of the opportunity to exercise any meaningful prosecutorial discretion in coconspirator cases” (8).

I agree, however, with Judge Williams’ concurring opinion that such a broad holding was unnecessary and regrettable.

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Prosecutorial Accountability, Internal and External

I am just one of the many commentators who have bemoaned the absence of robust accountability for prosecutors in a system dominated by plea bargaining.  (See, for instance, my papers here and here.)  Now, Ron Wright and Marc Miller, two of my favorite authors on criminal procedure, have an interesting new paper exploring prosecutorial accountability from a global perspective.

Wright and Miller contrast the traditional American and civil-law approaches to prosecutorial accountability: the U.S focuses on external accountability, while most of the rest of the world focuses on internal accountability.  Thus, in the American system, prosecutors are traditionally elected at the local level, which theoretically establishes accountability to voters.  Elsewhere in the world, prosecutors are subject to bureaucratic accountability through large, centralized justice departments.

Wright and Miller argue that the traditional distinction between the U.S. and civil-law approaches is breaking down, as American prosecutorial offices are growing more bureaucratic and European offices are becoming more responsive to the public.  “Systems with a blend of internal and external controls on criminal prosecutors are now the norm around the world” (3).

Wright and Miller provide a helpful overview of the traditional civil-law approach, which I find in many respects quite attractive.

(more…)

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