“An Offer You Can’t Refuse” – How Prosecutors Force Plea Deals

This just in from the Center for Prosecutor Integrity:

In December, Human Rights Watch released a milestone report titled “An Offer You Can’t Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty.” The report appeared to get lost in the Holiday shuffle, because it didn’t garner much media coverage.  So CPI recently did a Summary of the report. The Summary details the 7 strategies that federal prosecutors use to pressure drug defendants to accept a plea, and also highlights a number of sizzling quotes from the report.  Our Summary concludes, ” The Sixth Amendment of the Constitution guarantees the right to trial by jury. This right should not be diminished or eviscerated by turning it into a trial “penalty.” Disproportionate sentences should not be imposed on the guilty, and the fear of a wrongful conviction should not be a burden to the innocent.”

The CPI summary can be seen here: http://www.prosecutorintegrity.org/reports/hrw-an-offer-you-cant-refuse/

The CPI summary has extracted a number of very telling quotes from the report, and they appear below:

1.      Prosecutors get the innocent to agree to a plea by threatening them with sentences that, in the words of Judge John Gleeson of New York, can be “so excessively severe, they take your breath away.”  In many cases, the prosecutor has complete discretion whether to use these bargaining tools (page 2).

2.      The “threat of a large trial penalty is unavoidably coercive, and contrary to the right to liberty and to a fair trial. In some cases, the sentences imposed on drug defendants who refused to plead are so disproportionately long they qualify as cruel and inhuman”  (page 11).

3.      “Mandatory minimum sentencing laws increased prosecutorial power, transferring sentencing power from judges to prosecutors” (page 31).

4.      “For the government, the guidelines are sacrosanct. Prosecutors insist they must be followed – except they will bend them whenever it suits their purposes.” – Attorney Gerald McMahon, New York (page 34)

5.      The “longer sentences exist on the books largely for bargaining purposes.” – NYU law professor Rachel Barkow (page 81)

6.      “It’s the luck of the draw with prosecutors in each office…some make deals, some won’t, some play fast and loose, charge big, and plead small.” – Anonymous assistant US attorney, Michigan (page 83)

7.      “While some federal prosecutors may reveal their evidence to defense counsel to stress the strength of their case and the wisdom of the plea, others do not. Defense counsel may have to evaluate the risks of ‘trial in the dark’” (page 84).

8.      “There is an inherent conflict of interest when prosecutors are de facto sentencers. They get reputations based on convictions. This is a big difference from federal judges who have no state in a case, who seek only to do justice.” – Judge Thelton Henderson, California (page 91)

9.      “Department of Justice policy has long encouraged prosecutors to charge defendants with the most serious offense (with the longest sentence) consistent with his conduct that is likely to result in a sustainable conviction” (page 92). This differs from the ABA ethical standard that prosecutors should not pursue charges if the punishment is likely to be disproportionate to the offense.

10.   “Prosecutors get kudos based on aggressive prosecutions. It’s not just convictions, but also length of sentence…That’s what earns you pats on the back.” – Former US Attorney (page 97)

11.   “Prosecutors try to be fair and offer good deals. But if you offer the defendant a good deal, and you’ve warned him about the consequences of going to trial, and the defendant doesn’t take the deal, then all bets are off.” – Former federal prosecutor, New York (page 99)

12.   “If you reject the plea, we’ll throw everything at you. We won’t think about what is a ‘just’ sentence.” – Anonymous former US attorney, Utah (page 100)

Let me add, as an editorial comment, that based upon my exposure to cases at the state level, these coercive strategies are not reserved to just federal prosecutors, but are also employed by prosecutors in general.

4 responses to ““An Offer You Can’t Refuse” – How Prosecutors Force Plea Deals

  1. “THREE FELONIES A DAY: HOW THE FEDS TARGET THE INNOCENT” BY Harvey Silverglate

    http://harveysilverglate.com/Books/ThreeFeloniesaDay.aspx

  2. The arrogance of power over the powerless is a systemic, ubiquitous, attitude, a problem those within the system ethically “put on the shelf” and do not acknowledge. They are “doing their job”, “protecting the public”. It is a discretion, from the accused standpoint, gives the police/prosecutor absolute power, before it can ever be heard by a jury. It is contrary to all democratic notions that absolute power is never to be in the hands of any individual.

  3. Pingback: Plea Bargaining – An Effective Tool for Prosecutorial Abuse of Power | Wrongful Convictions Blog

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