Federal Plea Bargains: Not Always Such a Great Deal

Because a substantial percentage of my criminal defense work in Boston involves federal clients and federal charges, I was not surprised to read in last week’s Wall Street Journal ("WSJ") that approximately 97% of all federal criminal cases that are prosecuted to a conclusion are resolved these days via plea bargains.  According to the WSJ, this represents an astounding 13% increase from the 84% resolution rate that controlled back when I was working as a federal prosecutor in Boston two decades ago.  The WSJ attributes some of the increase to the fact that the number of federal defendants has nearly doubled during the intervening time period as a result of "crackdowns" on crimes "ranging from drug trafficking to fraud."  The Paper also correlates the increase, along with the correspondingly startling conclusion that only 3% of all federal cases that are prosecuted to conclusion are, thus, resolved at trial, to a spike not only in the number of federal criminal laws now on the books, but also because of "stiffening" of possible maximum sentences by Congress and the U.S. Sentencing Commission, including fraud-based crimes which, in some instances (e.g., wire fraud and mail fraud) were increased from 5 to 20 years.  The WSJ hypothesizes that the built-in reward system for accepting responsibility and pleading guilty substantially in advance of trial afforded under the U.S. Sentencing Guidelines ("USSG") is a significant catalyst behind the increased prevalence of plea bargains.  Because I am all-too-aware of benefits available to federal clients as a result of the potential 3 point reduction for Guidelines totals when a defendant accepts responsibility by pleading guilty early under USSG § 3E1.1, I can, as an experienced federal criminal defense attorney, attest to the fact that both the "stick" of enhanced penalties, and the "carrot" of downward departures as a result of pleading guilty, are major contributing factors to this paradigm.

As the WSJ goes on to note, plea bargaining (and make no mistake, there is little to be "bargained" these days; "negotiation" is more apt), has become so routine that SCOTUS has recently issued related opinions holding that effective assistance of counsel is a constitutionally mandated protection, not only at the trial phase, but also in connection with pre-trial plea negotiations.  (See Missouri v. Frye, Lafler v. Cooper, and my related blog entry.)  Notwithstanding the High Court’s recognition of the availability of appellate relief for those federal defendants ineffectively advised to plead, or in some cases not advised at all or not informed about the consequences of a prospective plea, there remains a real concern, as Justice Antonin Scalia noted [as quoted by the WSJ], that the government’s ability to charge a defendant with so many different crimes (and thereby effectively ratchet-up the Guidelines calculus) can "effectively compel[s] an innocent defendant to avoid a massive risk by pleading guilty to a lesser offense."

There is no question this concern is both accurate and true.  Federal prosecutors do take advantage of a plethora of charging options in order to leverage favorable results that are less about making sure that "justice is done" and more about presenting defendants with no-win options they may not be able to refuse or increasing bottom-line prosecution statistics.  By the same token, though, laying the blame solidly on the shoulders of the prosecution (who, in case I haven’t been clear) do shoulder the bulk of responsibility for the Hobbsian choices most federal defendants are now making is not entirely fair.  Blame should also be assigned to federal judges, who despite repeated direction from SCOTUS about the USSG being solely advisory in nature and a "starting point only" for sentencing considerations, as well as but only one of a number of factors to be considered when determining the appropriate sentence, continue to rigidly adhere to Sentencing Guidelines "math" when imposing federal sentences.  (I’ve actually blogged about that issue before and have all but questioned the point of SCOTUS issuing its landmark decisions if they are, in the end, for all intents and purposes going to be ignored by habit-based jurists who continue to plug in numbers in order to plug up jails.)  An over-aggressive U.S. Department of Probation should also be cut in for a substantial share of the blame, given their own dogged commitment to Guidelines formulas and their aggressive propensity to find and apply every possible sentencing enhancement, despite obvious cues from both defendant and government that the parties have pre-negotiated most of the same out of the process.  The reality is with "fact bargaining" removed from the process, Probation is now free (and likely incentivized for its own unrelated purposes) to ramp up the Guidelines numbers to such a degree that defendants often have little choice but to "take the three points" and punt their futures.

So in the end, for those of us in the thick of it in terms of defending federal criminal charges, the numbers reported in last week’s WSJ article come as no surprise.  Nor do they suggest that federal criminal cases should routinely be resolved via white-flag waiving whimpers.  Each case must be assessed on its individual strengths and weaknesses; and while the potential Guidelines calculations, along with the presiding Judge’s sentencing proclivities, must always be considered, electing to resolve a particular case short of trial is not necessarily always in the client’s best interest.  To be sure, expanded charging options have increased the government’s ability to leverage pleas from risk-averse defendants.  Still, even as amended, federal laws are idiosyncratic enough and often narrower in terms of definition than state crimes are.  Because of this, federal prosecutors sometimes wind up trying to force "square pegs into round holes" in terms of attempting to apply certain fact patterns to specific federal violations.  This can result in theoretical infirmities that can, and should, be exploited to a defendant’s advantage in front of federal juries.  Moreover, because federal juries are drawn from a broader geographic cross-section than most state juries (which are usually drawn only from the county in which the crime allegedly occurred) federal jurors tend to be less parochial and sometimes slightly more impartial than jurors considering offenses committed in their extended "backyards" and "neighborhoods"; another moderate advantage for federal criminal defense attorneys.  The expanded geographic base from which federal jurors are drawn also broadens the background and experience of potential jurors enough to allow seasoned trial attorneys to hone-in on prospective jurors he or she feels might fit the juror "profile" he or she is seeking.  The fact that many federal prosecutions can tend towards the anti-septic, and are recently trending toward the white-collar side, can also provide a slight advantage from a defense-oriented perspective (which is not to say federal juries necessarily view such crimes as "victimless" and/or are not offended by white collar fraud, theft or larceny; they often are).  Moreover, the Federal Rules of Evidence’s inherent propensity toward allowing evidence that is both relevant and probative often provides assurances that the defendant’s case, as well as his rebuttal evidence, is likely to be heard; and, for the most part, federal judges do seem more inclined to allow the parties to "try" their respective cases without the degree of interference (and sometimes) judicial bias that can more often be an obstacle in State court.

Now, none of this is to say jury acquittals are far more likely in federal than in state courts.  My own professional observations, and I’m sure accompanying statistics, suggest they aren’t.  I’m also not saying that a guilty plea and its 3 point reduction, or providing substantial assistance to the government via cooperation, or the benefits offered by safety valve departures, aren’t often a federal defendant’s best available options; they routinely are.  All I’m saying is if you are charged with a federal crime, be sure to hire an attorney who is not only willing to weigh, assess and discuss all your options, but also one with the talent, experience, and gravitas to take your case to trial if, and when, that is your best option.  Statistics do have relevance, but in the end, you and your attorney have to view you and your case as standing alone.  To approach any case otherwise is not only to be blind to justice, but also to be blind to one’s client.

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