Federal Judge Says Threat of Mandatory Sentences Used as “Chip” to Coerce Pleas

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


John L. Kane, Jr. is the Senior Judge of the United States District Court in Denver. This prominent jurist recently told the New York Times that criminal defendants are being ”coerced” into pleading guilty with threats of a harsher sentences should they decide to go to trial. “How many times is a mandatory sentence used as a chip in order to coerce a plea? They don’t keep records,” Judge Kane told the newspaper. “That’s what the public doesn’t see, and where the statistics become meaningless.” Judge Kane said that prosecutors “have grown more powerful than judges” and the end result is that “we hardly have trials anymore.”


The Times cited two groups with an interest in tracking statistics related to guilty pleas versus trials: the National Center for State Courts in Williamsburg, Va., found from available data that the percentage of felonies taken to trial in nine states dropped from 8 percent in 1976 to 2.3 percent in 2006. The Bureau of Justice Statistics, once again utilizing available data, found that the ratio of guilty pleas to trial doubled from 1986 to 2006. These figures are even more disturbing at the federal level. In the wake of the Sentencing Reform Act of 1984 (“SRA”) (here), the percentage of defendants exercising their right to trial in U.S. District Courts dipped to 3 percent in 2010 from nearly 15 percent before the SRA. The result: nearly 9 out of every 10 federal cases result in guilty pleas.


Writing in the New York Law Journal (Vol. 239, No. 7), attorneys Elkan Abramowitz and Barry A. Bohner discussed the disappearing criminal trials in federal courts in 2008. In their article, “Thoughts on Federal Plea Bargaining, Trials, Acquittals,” Abramowitz and Bohner hit the proverbial nail on the head with the following lead: “As one veteran prosecutor recently put it, ‘trials should be the showcase for how the criminal justice system operates.’ But as astute analysts of, and participants in, the criminal justice have observed, the number of trials (and acquittals) in the federal system has diminished in recent years.


“Ongoing discussions among commentators raise questions about whether this anti-trial culture or culture of accommodation is the result of the power imbalance between prosecutors and defense lawyers. Does the imposing combination of charging and sentencing options give federal prosecutors the power to shrink the number of criminal trials? Does the drop in the rate of acquittals indicate a problem with the quality of criminal justice? Is the trial lawyer becoming an endangered species?


“The number of federal criminal convictions resulting from guilty pleas continues to rise steadily. In 2004, the most recent year for which statistics are currently available, more than 17,500 individuals were charged with federal crimes. Of this number, 90 percent were convicted, an increase from 81 percent in 1990. Among these approximately 15,570 convictions, 96 percent were resolved by guilty plea. The proportion of convicted defendants who pleaded guilty has risen to an all-time high, from 87 percent in 1990 and 95.2 percent in 2002. These statistics hold true in state court as well.”


Abramowitz and Borher cited the detailed analysis of the diminishing criminal trial and increasing acceptance of plea bargaining in federal courts written by Professor Ronald F. Wright in the University of Pennsylvania Law Review (Vol. 154, 2005) in an article appropriately titled “The Distortion and the End of Innocence in Federal Criminal Justice.” Professor Wright coined the theory called “trial distortion” which is a critical assessment of those federal jurisdictions in which the sheer volume of guilty pleas does not reflect the “pattern of outcomes that would have resulted from trials. A healthy system would aspire to replicate through its guilty pleas the same pattern of outcomes that trials would have produced.”


As Abramowitz and Borher pointed out, Professor Wright’s “trial distortion” theory “focuses in particular on the number of acquittals in a given jurisdiction. When a system notices a downward trend in the number of acquittals, a warning light regarding the ‘truth finding function’ should be triggered. ‘Ideally, under the trial distortion theory, extra guilty pleas should produce the same mix of convictions and non-convictions that a system would produce if every filed case either went to trial or was dismissed.’” Professor Wright added that a drop in acquittals may indicate “very real problems with the quality of criminal justice.”


In support of his theory, Professor Wright pointed to the two significant advantages federal prosecutors enjoy to secure guilty pleas. The U.S. Sentencing Guidelines, created as part of the SRA, allow downward adjustments to defendants who provide “substantial assistance” to the Government and who demonstrate an “acceptance of responsibility” for their criminal conduct. The “substantial assistance” adjustment can awarded to the defendant only if the Government requests it and the “acceptance of responsibility” adjustment can be awarded to the defendant only if the sentencing judge determines it is deserved which is far too frequently governed by different biases and views among prosecutors and federal judges (here and here).


“The real power of these tools becomes clear when we notice that districts making heavy use of these techniques produced both higher guilty plea rates and lower acquittal rates,” Professor Wright wrote. “In these districts, the trial penalty, that is, the differential between the sentence after plea and sentence after trial, convinced more defendants to abandon worthwhile defenses. In short, the combination of charging and sentencing options gave federal prosecutors the power to distort trial outcomes.”


And what has been the result of the SRA and the “trial distortion” theory which has evolved from it? Richard E. Meyers II, a former assistant U.S. Attorney who is now a professor of law at the University of North Carolina, succinctly answered the question for the Times: “We now have an incredible concentration of power in the hands of prosecutors” which gives them so much influence that “in the wrong hands, the criminal justice system can be held hostage.”


This enormous power is enjoyed by state prosecutors as well. For example, the Times reported that Florida in 1990s passed a host of tough sentencing laws which essentially had the same impact as the SRA. Defendants who stand trial in that state face terms of imprisonment as much as 20 times higher than had they pled guilty. Prominent Florida criminal defense attorney Denis deVlaming told the Times that the first thing he does with a new client is “pull out a calculator to tally all the additional punishments the prosecutors can add to figure the likely sentence if the client is convicted at trial.” He calls it “justice by mathematics.”


There in lies the perpetual dilemma for criminal defense attorneys who favor a trial when a significant defense is available but who must convey to his client the immense power prosecutors have to secure stiffer sentences if the client elects to proceed to trial, and is found guilty. The U.S. Supreme Court has held, in Parker v. North Carolina and Brady v. United States, that the threat of a stiffer sentence does not render a guilty plea invalid because a defendant elects to plead to a lesser sentence rather than face trial. Prosecutors have used this license granted by the Supreme Court, in conjunction with tough sentencing statutes, to compel defendant to plead guilty, to accept a “plea bargain.” This process seriously undermines the role of the criminal defense attorney who is legally and ethically bound to convey to his client any “plea deal” offered by the prosecution. And while the defense attorney believes a credible defense is available to his client, he must inform the client that there is no way to predict what any jury will do. In effect, in many cases, the defense attorney’s role has been reduced to that of a guilty plea facilitator, seeking to minimize punishment.


deVlaming agrees. He told the Times that “the transfer of power to prosecutors from judges has been so profound” that the trial ritual has become “in some measure a lie.” University of Utah law professor Paul Cassell, a conservative former federal prosecutor and judge, underscored deVlaming’s observation by telling the Times: “Judges have lost discretion, and that discretion has accumulated in the hands of prosecutors, who now have the ultimate ability to shape the outcome. With mandatory minimums and other sentencing enhancements out there, prosecutors can often dictate the sentence that will be imposed.”


Of course, the National District Attorneys Association enjoys the increasing power status of prosecutors. Scott Burns, and current executive director of the NDAA, told the Times: “There have been so many laws passed in the various states that just about always there is some enhancement available to the prosecutor that can be used as leverage in negotiations.”  The former Utah prosecutor conceded to the Times that the plea-bargain process “clearly is coercive” but added that plea bargains are also “extremely lenient in many instances because prosecutors are taking several criminal acts off the table.”


But Burns is sensitive to the professional criticisms from his peers in the criminal justice system. He took pains to point out that prosecutors have more leverage because legislators have enacted laws prosecutors are “duty-bound” to uphold. “There are a lot of criminal laws that are passed that we all kind of roll our eyes at,” he told the Times. “Sometimes they are just repetitive; sometimes they are knee-jerk responses to some high-profile case, and therefore politically motivated.” Bill Cervone, the head of the Florida Prosecuting Attorneys Association added: “Our position is, ‘Please [lawmakers] don’t pass any new crime laws while you are also cutting our budgets.’”


We readily concede that many criminal defendants are guilty and choose to accept a plea deal that will reduce both their sentence exposure and length of incarceration. But we are also concerned about overzealous prosecutors who routinely overcharge and then use the threat of harsher punishment to secure a guilty plea.  It is obvious that this coercive process sends too many innocent defendants to prison. The New York-based Innocence Project reports that 25 percent of the DNA exonerations in this country involved “false confessions and admissions” with 23 of them having pled guilty to avoid a harsher punishment, such as the death penalty.


We are also disgusted that the enhanced power of prosecutors forces criminal defense attorneys to walk through the mine field of the plea bargain process in an effort to secure some kind of justice for their clients. It leaves an empty feeling in the gut when a client, out of fear and uncertainty, is coerced into pleading guilty by the threat of a harsher punishment hanging over his head like Damocles’ sword, especially when he had a legitimate defense but chose not to “roll the dice.” We agree with Judge Kane, folks – that’s not the way the criminal justice system is supposed to work.


By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization