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A Rant: The Problem(s) with the Federal Criminal System

After a frustrating week, I’m going to lay it out for you about how our federal criminal justice system is, in particular, screwed up:

  1. Overbroad federal criminal statutes create ambiguity about what is a crime.

  2. Federal statutes have what I call “generational” sentencing ranges. 0 to 25, 5 to 40, 0 to 10 or 15 to life. Plead guilty to an offense involving a conspiracy to distribute more than 28 grams of cocaine, and you are pleading into a 5 to 40 sentence which will only be determined for you after you give up your trial rights.

    De minimis bad conduct – a guy that a jury would easily convict of selling a little over an ounce of cocaine could result in a 60 month sentence or a 360 month sentence. What will it be? Only Probation can tell in its all-mighty Pre-Sentence Investigative Report.

    In North Carolina criminal courts, I can tell you when you take a plea within a given 2 year range or so what you are going to get in almost all cases.

    In federal courts, your guess is almost as good as mine and, given what you may or may not have told me about the conduct for which you are now pleading, your guess could even be better. Also, buried in the discovery better not be mention of a gun. In other words, I can’t promise you anything, and the Judge will actually remind you at your Rule 11 arraignment that any promise I may have made is not binding on the court.

  3. United States Sentencing Guidelines are an unwieldy mess that look pretty statutory, but that actually provide few substantive protections against bad calculations (although things may be getting better).

    Note: The guidelines wouldn’t be so problematic if it weren’t for the absurdly large sentencing swings.

  4. The drug laws are a complete mess. Look, you may not agree with me that decriminalization is the path forward, but you’ve got to be kidding me that we need to be sending away career street dealers away for 10, 15, 20, or 30 years.

    Pablo Escobar… fine. But the guy sitting down on Bragg Street? Selling $40 worth of crack day in and day out because 1) he has made bad choices, 2) he has made bad choices, 3) and, yes, let’s admit it: this Government and this society have failed him for any number of reasons we don’t need to explore here?


  5. Relevant Conduct, a creature of the Guidelines, is a damn joke. I understand and appreciate the theoretical concept that at sentencing, the judge should be looking at the “whole person” and that relevant conduct allows the judge to look beyond the convicted offense to sentence the particular person “appropriately.” And so it does make sense that where there may have been a gun, more time may be imposed. Or the person who sold a mere 29 grams of cocaine should get a lighter punishment.

    But we are almost never talking about leniency. We are almost always talking about very high guideline ranges. We are almost always talking about Judges who have never been in a lock-up with a human being known as a “defendant” sitting from on high and choosing between very wide sentencing ranges and, at least where I live, sentence high.

What are the results of this system?

Too few cases are tried. Federal criminal justice is meted out in the dark. Even judges don’t know what’s going on in their courtrooms. The plea deals, foisted on defendants by very powerful (even if, sometimes, well-meaning) prosecutors, are basically unreviewed. “Take the plea or have a trial,” they say. “But you will lose your 3 points for Acceptance of Responsibility.”

We’ve got two generations of criminal lawyers – both prosecutors and defense lawyers – who are basically sentencing lawyers, not trial lawyers. Weak trial lawyering does not make for a healthy democracy.

Mass incarceration.



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