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As I write, Congress, at the behest of the Department of Justice, is considering a bill that will minimize the already limited discretion federal judges have in sentencing matters. If the bill passes the Republican-controlled Congress, there will be a further shift of power to the prosecutor, who already determines who to charge, what to charge, and, often, what the sentence will be. The role of the judge in the vast majority of criminal felony cases, those which result in guilty pleas, will be limited in most instances to determining where in a narrow range — essentially determined by the prosecutor — the defendant should be sentenced.
The practice of criminal law in the federal courts is already far different than it was some years ago before the Sentencing Guidelines were enacted and, largely as a result of the Guidelines, the United States attorney was given effective control of sentencing decisions. The adversary system that we learned about in law school has been replaced by an administrative system in which one party, the prosecutor, invariably has the stronger negotiating position.
In 2001, approximately 97 percent of all indicted federal defendants pleaded guilty. Approximately 17 percent provided “substantial assistance” to the government and received downward departures pursuant to U.S.S.G. Section 5K1.1, the sentencing provision that allows the judge, upon the prosecutor’s application (and only upon the prosecutor’s application), to sentence a defendant below the guideline level. The 17 percent does not include those who attempted to cooperate but had insufficient helpful information or otherwise did not cooperate to an extent or in a manner satisfactory to the prosecutor.
Thus, in 2001, for every case he or she tried, the average federal practitioner pleaded 33 clients guilty, at least six of whom were cooperators.
Following the enactment of the Guidelines, there has been a considerable increase in the percentage of federal defendants who plead guilty. The Guidelines themselves establish a “punishment” of two to five levels if a defendant is convicted after his exercise of the constitutional right to trial. He loses the two- or three-level reduction he would have received for “acceptance of responsibility” by pleading guilty and, if he testifies, he will likely receive a two-level enhancement for obstruction of justice because his testimony may well be considered perjurious. Additionally, despite Department of Justice regulations limiting charge bargaining, prosecutors routinely threaten to charge more serious crimes with higher Guidelines unless the defendant pleads guilty.
Perhaps most significant among the changes in the criminal justice system is the enactment of Section 5K1.1. That provision hovers over nearly every criminal case. Indeed, a federal judge has held that an attorney’s failure to broach cooperation with a client is constitutionally ineffective assistance. In addition to the 17 percent of federal defendants who received Section 5K1.1 downward departures in 2001, many others who sought to earn such departures by cooperating were either too late or, in perhaps the worst situation for any defendant in the federal system, were unable to give up someone else either because their cooperation was not necessary or there was simply no one else to give up. Although approximately 20 percent of federal defendants receive downward departures for grounds besides cooperation (the grounds the Congress is considering limiting,) the real “safety valve” for a defendant to avoid a substantial period of federal incarceration is Section 5K1.1.
An unintended result of the Guidelines is that the bar for prosecution has been lowered considerably. Immediately after being retained, some defense lawyers rush their clients to the prosecutor’s office to seek a deal out of fear that a co-defendant might get there first and take, as prosecutors love to say, the “last seat on the train.” Prosecutors sometimes indict on weak evidence in the belief that at least one defendant, fearful of the harsh potential sentences, will choose to cooperate and buoy their case. Sometimes actually innocent defendants decide to plead guilty, and often to cooperate, out of fear that otherwise under the Guidelines they will receive substantial prison sentences.
Most judges, and many prosecutors, understand what the Guidelines have done to the criminal law. The Congress and the public do not. We must make every effort to educate them in order to retain what is left of the adversary system in the federal courts.
