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Plea Bargaining, Relevant Conduct, and the Punitive Federal Criminal System

Tim Lee has an excellent article on Aaron Swartz and what Lee calls the “corrupt practice of plea bargaining.” Swartz, a co-founder of Reddit, co-author of the RSS protocol and “hacktivist”, took his own life last weekend in part, it appears, over his looming federal trial in which prosecutors had charged him with crimes that could’ve resulted in decades in prison.

What monstrous crime warranted a decades-long prison sentence? Swartz, who had access to an archive of academic journal articles via JSTOR, downloaded millions of articles with the intention, apparently, of making them freely available. The online service, JSTOR, did not wish to prosecute. The authors of the articles did not, apparently wish to prosecute. The publishers, it seems, did not want to prosecute.

But the United States Attorney in Boston, Carmen Ortiz, using a broadly written 1980s era law, did wish to prosecute, and likened Swartz, who at most should’ve been punished with a misdemeanor trespassing conviction, to a common criminal.

Swartz’s suicide has prompted outcry on the Internet, and prompted this response from his family:

Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts U.S. Attorney’s office and at MIT contributed to his death. The US Attorney’s office pursued an exceptionally harsh array of charges, carrying potentially over 30 years in prison, to punish an alleged crime that had no victims. Meanwhile, unlike JSTOR, MIT refused to stand up for Aaron and its own community’s most cherished principles.

The Swartz family’s statement points out some of broader questions at stake here about the fundamental unfairness of the American criminal justice system, particularly the federal system.

The federal system is uniquely punitive for four reasons.

Federal Criminal Laws Are Too Punitive

First, many federal laws have massive statutory maximums. If convicted, a federal judge can sentence someone up to the maximum possible penalty set out by Congress. These very broad statutory maximums were designed by Congress in the context of the United States Sentencing Guidelines, which are meant to establish a narrower sentencing range within which the sentencing judge can impose punishment confined by the broad statutory language of the offense.

So, if the statutory maximum establishes a maximum punishment of 20 years, but the Sentencing Guidelines, after considering all relevant factors, establish a range of 57 to 71 months, then you might think that judge can only the person to a period of time between 57 and 71 months.

Since U.S. v. Booker, however, the federal sentencing guidelines are advisory. So long as the sentence is “reasonable,” a federal district court judge can depart (upward or downward) from the Guidelines prescribed range to impose any sentence up to the statutory maximum.

While I am no fan of the sentencing guidelines, and approve of downward departures, the problem with upward departures is that nothing but very high maximums in many cases can limit a judge so long as he is “reasonable”. Reasonableness is in the eye of the beholder, or in this case Courts of Appeals, who afford a lot of discretion to federal district court judges.

Plea Bargaining is Unfair

Second, pleas in federal courts are problematic for two reasons. First, as in Tim Lee notes in the case of Aaron Swartz, the prosecutor has almost unreviewable discretion in deciding how to charge a crime. Does she charge every purportedly stolen journal article? Every time JSTOR was accessed? Or once for the whole criminal act? It’s almost completely up to her, so long as there is no obviously discoverable prosecutorial abuse.

Consequently, many federal prosecutors charge high, and offer what, from the vantage point of facing 35 years in prison, looks to be a very “reasonable” plea offer of six months or a year. And many defense lawyers are in the position of telling their clients that while the client’s case is very strong, a plea offer that “good” is too “good” to pass up. It’d be malpractice to say otherwise.

Only very strong willed defendants risk trial in such circumstances, which is why in the Eastern District of North Carolina, for example, while hundreds of criminal cases pass through the court system each year, only maybe a dozen or two go to trial each year.

Other countries have a different philosophy. Italy, for instance, reduces sentences by just one-third (patteggiamento) following a plea bargain. This limitation on plea bargaining means that a prosecutor has to think more carefully up front about how to charge, because if he or she over-charges the crimes, it may be impossible to resolve the matter by a plea bargain, and the matter may have to go to trial.

The reality is that prosecutors simply have too many cases to cavalierly go to trial on every one. In the United States, going to trial on more than 5 percent of the cases would cripple an already overloaded federal and state criminal system.

Relevant Conduct is… Wrong

At the sentencing hearing, and following a conviction or plea deal involving certain crimes, including pornography, drug, and firearms offenses, a federal district court judge will hear about “relevant conduct.” While the government has the burden of proving relevant conduct, the standard is not “beyond a reasonable doubt.” Instead, the standard is the much lower “by a preponderance of evidence”.

The judge is allowed to consider any relevant conduct, even if it is uncharged. For instance, if the defendant is alleged to have distributed not just the 10 grams of crack in the indictment, but an additional 10 kilos over the past 4 years, the person can face punishment for all 10 kilos up to the statutory maximum. This punishment can be imposed merely on the basis of either a cooperating witness – snitch, or co-defendant’s – often unsworn statements to a U.S. probation officer tasked with interviewing the defendant, co-defendants, and witnesses and drafting the Pre-Sentence Report (PSR or PSI).

Because those cooperating with the government have an incentive to maximize their cooperation, they will often say that the defendant being sentence was more involved in criminal conduct to make him look like the bigger culprit and to enjoy a larger cut off their own sentences.

To take another example, if the defendant is alleged to have killed someone, the person may be sentenced, up to the statutory maximum, for the homicide based merely on a preponderance of evidence standard even if the homicide is uncharged. Indeed, because there is a lower standard of proof at a sentencing hearing, the judge can sentence someone for conduct even if the jury found the person “not guilty” of that conduct.

“Relevant Conduct” makes going to trial that much more risky, since even if a defendant wins a partial victory on some counts, he may be punished more harshly than had he taken a plea because the judge can sentence him nonetheless for uncharged or unconvicted conduct.

And “relevant conduct” turns constitutional protections inside out, allowing judges to punish people even though they have never been found guilty by a trier of fact.

Federal Judges Have Too Much Discretion

I’ve described above the ways in which federal judges have too much discretion with respect to sentencing. The same goes for plea agreements. In state courts, plea agreements are largely negotiated between the state and the defense lawyer. These agreements can be very specific, including the exact time to be served, the fines to be imposed, and other conditions both sides agree to include. This creates an efficient system of resolution in many cases where both parties are in agreement about an appropriate punishment, even if both parties haven’t gotten all that they wish out of the plea agreement.

A Wake County District Court or Superior Court Judge, for instance, has the option to accept or reject the plea offer, but can’t unilaterally change the material terms of the plea. If he does attempt to modify the plea arrangement, the defendant can withdraw his guilty plea. In that instance, the prosecutor and defendant can take the plea agreement to another judge for approval.

I practice in the Eastern District of North Carolina. In this District, and I expect others as well, a plea agreement does not bind the judge as to sentencing. While the plea agreement can limit exposure in that the offenses will have specific statutory maximums and there is often a provision protecting the defendant against the use of any cooperating statements against him, the agreement itself does very little to prevent the judge from picking any “reasonable” sentence and imposing punishment as he sees fits.

In addition, at the Rule 11 colloquy, where the defendant pleads guilty, the defendant is specifically informed that he cannot withdraw his plea simply because of the sentence that judge ultimately imposes.

And these sentences are generally not subject to review unless they are illegal or “unreasonable.”

Aaron Swartz is the Canary in the Coal Mine

Attention being directed at the United States Attorney in Boston is appropriate, but a broader discussion is important about how the federal government approaches criminal law. Congress has gotten away with imposing progressively more harsh laws, to the extent now that so many laws carry such harsh punishments that we are warehousing people.

Larry Lessig, the constitutional law professor who was a friend to Aaron Swartz, had it right when he wrote last week that “I get wrong. But I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you.”



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