Monday, May 11, 2020

"Why would federal prosecutors exercise the tremendous discretion entrusted to them with such a lack of compassion?"

That’s how Judge Charles Breyer ends this must read opinion in which he rejects a plea agreement where the government tried to get a defendant to agree to waive bringing a compassionate release motion until 180 days after asking BOP.

Breyer makes so many good points in his Order:

— that Congress said compassionate release should be available after 30 days, not 180.  So why should DOJ undue that provision.  (And even the 30 days can be waived in an emergency like this pandemic).

— Compassionate release isn’t only available in times of global crisis, like corona.  But there are lots of other times both for the individual and for other people in the family: “A terminal diagnosis. The death of a parent caring for his or her children alone while their other parent is imprisoned. An accident that renders a person unable to feed, bathe, or move without assistance. Compassionate release exists to address these calamities as well."

— It’s not good enough to say that this is a contract with parties bargaining because those parties are not on equal footing:  "It is no answer to say that Funez Osorto is striking a deal with the Government, and could reject this term if he wanted to, because that statement does not reflect the reality of the bargaining table."  This is one reason why courts should be able to reject plea deals when they are too harsh but not when they are too lenient.  Courts are there to check the government’s immense power, as Breyer is doing in this case.

Read the whole thing.  In the meantime, here’s the introduction and the conclusion:

Must a term of imprisonment be set in stone, no matter what happens after it is imposed? Should a court be able to reduce a sentence when unforeseeable tragedies change its consequences? What if the defendant’s children are effectively orphaned by the death of their other parent? What if a debilitating injury makes it impossible for the defendant to care for him or herself in prison, or recidivate outside of it? What if a terminal diagnosis turns a brief term of imprisonment for a minor crime into a life sentence? What if a global pandemic poses a mortal risk to an immunocompromised inmate who nobody intended to die in jail? When should a court be able to consider such events and revise a previously imposed sentence accordingly? How difficult should it be for a defendant to request this type of relief?
Congress has provided one set of answers to these questions, in the First Step Act of 2019. See 18 U.S.C. § 3582(c)(1)(A). The United States attorney’s office has very different answers in this case, for this defendant. See Plea Agreement (dkt. 206) ¶ 5. Because those answers undermine Congressional intent and all but foreclose this defendant’s ability to request a critical form of relief, the Court rejects the proposed Plea Agreement.
It is no answer to say that Funez Osorto is striking a deal with the Government, and could reject this term if he wanted to, because that statement does not reflect the reality of the bargaining table. See Erik Luna & Marianne Wade, Prosecutors as Judges, 67 Wash. & Lee L. Rev. 1413, 1414–15 (2010). As to terms such as this one, plea agreements are contracts of adhesion. The Government offers the defendant a deal, and the defendant can take it or leave it. Id. (“American prosecutors . . choose whether to engage in plea negotiations and the terms of an acceptable agreement.”). If he leaves it, he does so at his peril. And the peril is real, because on the other side of the offer is the enormous power of the United States Attorney to investigate, to order arrests, to bring a case or to dismiss it, to recommend a sentence or the conditions of supervised release, and on and on. See Robert H. Jackson, The Federal Prosecutor, 24 J. Am. Judicature Soc’y 18, 18 (1940). Now imagine the choice the Government has put Funez Osorto to. All that power—and the all too immediate consequences of opposing it—weighed against the chance to request release in desperate and unknowable circumstances that may not come to pass. That Faustian choice is not really a choice at all for a man in the defendant’s shoes. But the Court has a choice, and it will not approve the bargain.
That leaves only one question, which is why? Why would federal prosecutors exercise the tremendous discretion entrusted to them with such a lack of compassion? Defendants released through the compassionate release program are less than a tenth as likely to recidivate as the average federal prisoner. Inspector General Report at 49–50. And the Department of Justice itself estimates that broader use of compassionate release could save taxpayers millions and free desperately needed space in BOP facilities. Id. at 45–48. The waiver of compassionate release is senseless.
The order reminds me of one of the first cases I had as a young public defender before Judge Norman Roettger.  For those of you who don’t know Roettger, he had a handlebar mustache and wore a gun around his ankle in court... The young prosecutor at the time put in an appellate waiver into the plea agreement as was his orders from above.  I told him we couldn’t agree to it.  But the prosecutor told me that he had no discretion to take it out.  Either we go to trial, plead straight up to the indictment, or agree to the provision.  I couldn’t understand why the prosecutor was being so difficult about it.  My supervisor at the time told me that Judge Roettger was vocal about not accepting these provisions and that we should just set it for plea and let the judge know what was happening.  So we show up for court and tell the judge about the proposed deal.  He asked the young prosecutor: “So do you work for the Department of Justice of the Department of INJUSTICE!!?? What if I commit legal error?  Shouldn’t the defendant be permitted to appeal and correct that legal error?!”  He then made the prosecutor scratch out that provision in front of a packed courtroom and took the plea agreement without it.  Quite a moment, especially for a young lawyer who was nervous about the gun making an appearance.


Anonymous said...

We’ve seen local judges land on either side of this argument recently, with or without the Prosecutor help or objection.

At which point should these decisions be subject to appeal?

Specially when the AUSA actions are contrary to stated department policy?

Anonymous said...

When Judge Roettger sat in the old Fort Lauderdale City Commission courtroom which was a three-sided glass affair, one day when I was a young lawyer, we returned from lunch, and as I entered the courtroom, a marshal pulled a gun and pointed it at the floor and asked me what I was doing there. Judge Roettger was on the bench. He looked down at me, motioned for me to sit down, and completed a sentencing. When he was done and the defendant was out of the courtroom the judge said; "Sorry about that. There is a contract out on me if he gets sentenced. $175k in the courtroom; $50k outside." The little gun probably would not have helped. The judge was as cool as a cucumber, though.

Rumpole said...

My word is this a great order or what?

Anonymous said...

Roettger loved his Marshall "Sandy". Anyone who crossed her in any way was in a heap of trouble with Norman. I had a cocaine conspiracy case back in the 80s. The AUSA advised me that she was going to dismiss the indictment as they needed to flip others to make a case. I had a bad feeling about it so I packed my clothes and took my file with me to WPB. Norman refused to dismiss the case saying "you indicted him so try him"/ The main witness had a convenient loss of memory on direct exam. Norman took him into chambers without counsel or the AUSA. Norman raged at him and scared the hell out of him. When he returned to the courtroom he suddenly remembered everything against my client and the co def. In fact, he called the attorney for the so-defendant a "bantam Rooster for the way he was bobbing around the courtroom. He was certainly one of a kind and did not kiss the Governments ass.

Anonymous said...

Contrast with this prosecutor's office. "We just do what BOP tells us to do." Disgraceful.

Anonymous said...

Thank God Paul Manafort is home save and sound after doing less than Martha-Stewart time. I hope nobody tries to suggest that he got preferential treatment because he is a rich white man.

Anonymous said...


Who is your all time favorite WHITE MALE?

Anonymous said...

Funny you should ask. More great news for white men. BOP releases Paul Manafort! For those of you following at home, BOP initially told many, many incarcerated people that they would be released to home confinement. After they told them, BOP changed the rules and said you can't be released unless you've served 50% of you sentence.

You may ask then how is Manfort getting released? He hasn't served 50%? Exactly.

As to my favorite white man? Very tough question. Gun to my head I would have to our President. He has the best words and is a stable genius. And he never put his feet on the Resolute desk, worn a brown suit, or took a selfie like Obama.