So if a prosecutor and a defense attorney agree that a particular case merits a particular sentence, should a judge be permitted to impose a harsher sentence. That's the question being argued in a case in which the government and defense agreed to a sentencing range of 57-71 months for a defendant who pleaded guilty to alien smuggling (which resulted in the tragic death of a 7 year old boy during the chase on the high seas). Judge Moore has indicated that the agreed upon sentencing range (which is based on an enhancement for death) is not sufficient and has asked for briefs from the parties as to why he should not go higher.
The question is an interesting one. If, as Chief Justice Roberts has suggested, judges are merely umpires who are supposed to call balls and strikes, then why should the umpire call what the parties have deemed a strike as a ball. In other words, it is the government (who represents the people) and defense (who represents the defendant) who know the case the best and who have fought -- under our adversary system -- to reach a result that both sides could live with. Why shouldn't the judge enforce that agreement? Thoughts? Here's the AP story on it.
UPDATE -- The first comment lays out the case for the judge taking such action. Interestingly, according to Jay Weaver, AUSA Dana Washington explained to the judge that the sentence was reasonable and that the sentencing guidelines took into account the death. He cited to a previous case in which Judge King was reversed for departing upward to life. If the prosecutor, who represents the people, believes the sentence is enough, should the judge (umpire) take a different position?
(Disclosure -- I represented a co-defendant in that King case in which we also secured a reversal in the 11th Circuit on another issue. My client ended up with about 4 year sentence because the 11th Circuit concluded that the events on the boat were not foreseeable to my client)...
The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
3 comments:
Couldn't disagree more. The Judge is responsible for sentencing. In some cases he may think the agreed upon range is too high or too low. As long as it is an exceptional situation, as this case appears to be, then the Judge is upholding his responsibility properly. There is already too much discretion in the Government's ability to frame a sentence. Judge Moore is clearly trying to remind the Government here that sentencing is ultimately his responsibility.
Unless the venerable and solidly-recognized principle of prosecutorial discretion is overlooked, the discussion should be: Can a federal judge interfere with prosecutorial discretion? If the government never filed charges, or if it filed reduced charges, could a federal judge overrule those decisions? No, according to two centuries of federal jurisprudence. So the question is, has the federal bench finally shifted so far into the prosecution camp that all that prosecution-discretion stuff is obsolete? Or, having moved into the prosecution camp, have federal judges now decided to usurp that power as well. In Judge Moore's court, the answer is plain and obvious.
This independent role of the judges has long bothered me. There are two parties in a criminal case, just like a civil case. In a criminal case, the executive branch is responsible for enforcing the laws. If the plaintiff asks for a pound of flesh and no more, under what authority (other than assumed authority) does the judge have to disregard the executive branch and start enforcing the laws?
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