Tag: sentencing

U.S. District Court Judge Jed Rakoff of the Southern District of New York, who was both a federal prosecutor and a criminal defense lawyer before becoming a federal judge, recently gave a talk at the University of Southern California law school on why innocent people plead guilty.

“We have hundreds, or thousands, or even tens of thousands of innocent people who are in prison, right now, for crimes they never committed because they were coerced into pleading guilty. There’s got to be a way to limit this.”

In a nutshell, the reasons many innocent people plead guilty are too much prosecutorial power (in charging decisions and plea agreements) and mandatory minimum sentencing laws.

“People accused of crimes are often offered five years by prosecutors or face 20 to 30 years if they go to trial. … The prosecutor has the information, he has all the chips … and the defense lawyer has very, very little to work with. So it’s a system of prosecutor power and prosecutor discretion. I saw it in real life [as a criminal defense attorney], and I also know it in my work as a judge today.”

The solutions, according to Judge Rakoff: Reduce prosecutorial discretion and eliminate mandatory minimums. I couldn't agree more.

It's very hard to explain to clients (and the public) that when a federal defendant goes to trial, unless he is acquitted of every count, he risks being sentenced not just for the counts he was convicted of, but also for the counts on which the jury found him not guilty.

Sentencing for acquitted conduct is expressly authorized by the U.S. Sentencing Guidelines.

The absurdity of the policy is illustrated very well by a sentence handed down this week by a federal judge in the District of Columbia. Antwuan Ball was convicted on a single count of distributing 11 grams of crack cocaine for $600.00. He was acquitted of racketeering, conspiracy, and every other crime, including murder.

The judge held Ball accountable for the conduct the jury found he did not commit, and sentenced him to 18 years. The Government had asked for 40 years, even though had Ball taken a plea deal before trial, and pleaded guilty to counts he was later found innocent of, it would have asked for 25 years.

This is stuff straight out of Alice in Wonderland. As Ball's lawyer wrote in a sentencing memo (available on PACER): [More...]