This is a must-read opinion about the trial penalty and why so few cases go to trial. He explains why the acceptance provision in the Guidelines, 3E1.1(b), is an unconstitutional penalty imposed on a defendant for exercising his constitutional right to trial.
Judge Rakoff promises defendants that if they proceed to trial, they will not receive a higher sentence than if they plead guilty. That's how our system should work, of course. But it's still pretty amazing that he does this in an effort to eliminate the trial penalty.
I got to know Judge Rakoff a bit when I interviewed him for the podcast a few years ago. He's a unique and impressive guy.
13 comments:
How is trying to get off scot-free, making victims relive what might be the worst moment of their lives (if still alive) and not saying sorry, making amends at the earlier possible opportunity equally blameworthy as someone who does all those things, if everything else is equal?
Deterrence turns on likelihood of punishment along with its severity. Any move that makes the likelihood lower makes the need for severity on those convicted to be greater to achieve equal results. This is shortsighted and will lead to longer sentences across the board, just not in Judge Rakoff’s courtroom.
Your analysis totally eviscerates the presumption of innocence.
There is no "trial penalty." A penalty would mean adding points on top of the base offense level as a punitive measure for going to trial -- as we do for gun enhancements or loss amount, etc. Offering a partial reward, in the form of a lower guidelines range, to those who admit to their crimes is just that: a partial reward for those who admit to their crimes.
Plea deals aren’t about accepting guilt, regardless of what you tell yourselves. It is about getting a better deal than forcing the Gov’t to prove their case and be punished for making them work for the outcome.
It is unfortunate that most judges play along with that game.
If the price of gas is could be $3 a gallon, but the gas station manager decides to mark it up to $4 a gallon and then advertise a 25% discount (bringing it back to $3 a gallon) to get more people to buy his gasoline, is there really a discount? You're arguing semantics. There is a cost to proceeding under the presumption of guilt and making the government meet their burden. Whether or not you want to call it a "penalty" or a "reward," the underlying facts don't change.
11:35 has it right.
If we eliminate what you call “the trial penalty” then the correct sentence ishlould be what a defendant receives without acceptance. See, what you call a trial penalty is really a discount on the just sentence for the crime. That is why the guideline is calculated before you discount for acceptance. So you propose doing away with the acceptance discount and have judges give no variance or consideration for acceptance of responsibility. Will you be happy when the defendant who pleads guilty and tries to make amends gets the same sentence he would have gotten had he maintains Ned his innocence and gone to trial? Will you be happy if your arguments about remorse, acceptance and rehabilitation have no effect on the sentence? What you ask is for the defendant who refuses to recognize what they did and goes to trial against damning evidence as a roll of the dice get the same sentence as one who cut his losses and began the process of rehabilitation the moment he was caught. That is unworkable unless you envision, as I suspect you do, a lower sentence for those convicted at trial and an even lower sentence for those who admit guilt. Then you can come back and point at that remaining disparity for a second bite at the apple, and on and on until every offender gets an unconditional discharge.
We have all seen judges give a defendant who goes to trial a break on the sentence because they credit their defense as in some way establishing mitigation or being worthy of a fact finding. The ability of a judge who sits a trial to give a sentence that judge views as just takes any possible merit away from your argument of a “trial tax.”
Rakoff is the guy who let jurors keep their phones and then used social media to say he was throwing the case out—no matter the verdict—while they were deliberating. Might be an impressive guy and be passionate about what he thinks is a trial tax, but he’s definitely not the brightest bulb anymore.
Solution get rid of Acceptance of Responsibility in the Guidelines and a sentence will be the sentence , defense bar will love that!
1:59 is on the money. To the defense bar, it's a trial tax. To the prosecutors, it's the appropriate punishment, now that there is no incentive to give a "discount" and give people the benefit of the doubt.
The arguments usually put forth by the defense bar aren't logically tenable. Let's eliminate the discount for taking responsibility and see what the defense bar has to say then. I can hear the wailing now
That wailing would be from prosecutors who have to work and go to trial.
And there arose a great cry in the land of the SDFL, for the angle of pleas visited upon the offices of the U.S. attorney’s office a great plague. Trial.
And those 98% of cases no longer were resolved by plea. Lo, defendants emerged from FDC 1, 2, 3 at a time. And no more did their high priests claim the power of never loosing a case. For 20% were set free by juries.
The cars and roaches parted on Miami Avenue as they made their way to the brightline and left, freedom in hand.
But the suited ones’ heats hardened and they pursued the people of freedom.
But fate saw fit to intervene and just as the last freed woman crossed the Avenue, a great heard of chickens appeared and swallowed those who would deny the presumption of innocence.
And, Judge Moore looked down upon the fungible herd and thought…this is good.
Prosecutors, agents, and judges burdened proving every case, no matter how strong, in weeks long trials were busier than ever. Victims and witnesses coming and going. The media reported victims multiplied as crimes committed by all the offenders that burdened law enforcement could not reach continued to crime, free and sure that even if caught they likely would not face justice because there is more crime than time, and even if they did, they could push to trial sure that in the end they would be rewarded the same. Yet, at 400 N. Miami the flow of cases remained markedly lower than what the defense bar called "the good old days." Cell phones did not ring, checks did not land, and Mercedes payments went unmet, as the defense bar saw the wellspring of cases dry up.
But there in a corner near the sleepy mag court stood a criminal defense attorney, lowering his rate yet again, still hoping to find that mythical creature from the past - a criminal defendant with funds to pay for a trial, because all criminal defendants go to trial. Resigned, our hero of reasonable doubt goes to find his place in long line of attorneys hoping luck will hand him a CJA. Nearby, a mass of people cried, wailed, and climbed over each other, in a desperate attempt to get a meeting with this year's first (and possibly only) white-collar defendant.
@ 1:41, the analogy (to the extent we can stick to simplified facts, and fully acknowledging the constitutional trial right complicates the model) would be "gas is $4 a gallon, but they offer a $1 discount for people who choose to join the gas station membership club. Mr. Smith does chooses not to join the membership club, so he pays $4." The gas station has not inflated Mr. Smith's price or penalized him. They have treated him neutrally according to their normal pricing scheme. Mr. Smith paid the correct advertised price. Insisting there is a "trial penalty" -- when it is, in fact, just being sentenced on the normal base offense level as determined by Congress -- is the dishonest semantic game. Now, there is PLENTY of room for valid discussion about whether pleading should be incentivized. For sure. But that discussion doesn't transmogrify the defendant's decision not to pursue an available reduction into a penalty imposed by the executive or the court.
And then there’s the other reason why it exists. If as little as 25% of defendants could convince their counsel into trials, and actually pushed for a speedy trial as is their right, the system would break and the USAO would be forced to prioritize their cases.
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