Monday, April 23, 2007

Posting Plea Agreements?

I'm quoted in the DBR article this morning criticizing the new policy in this District of not making plea agreements available online. Every other document in a criminal docket is available (unless it's sealed) except for plea agreements. Instead, you have to go down to the clerk's office to make a copy the old-fashioned way. This is a silly policy, which is only in place in this District (as far as I know). Hopefully it will be changed soon (the local rules committee is studying it).

If there are safety concerns for cooperating witnesses, then those concerns should be addressed in that particular case, but to have a blanket policy making it more difficult to get these documents.... Haven't we learned from the State scandal involving secret docs?


Anonymous said...

Mr. Markus,
On the other hand, my clients do not want their names, arrests, plea agreements, or anything pegging them to a crime. The internet as I've stated is a double-edged sword.

Respectfully, I disagree with your stance here. Yes, the documents are available to the public. However one can use a less restrictive means to protect my client's privacy -- ex: not allowing the world to more easily see their rap sheet or exactly what it contains.

On the other hand, I can see why the public may want this, but my clients without question do not.

I've posted a clip of my thoughts on gun control. I hope you take a moment to watch it. That's a real way to deter criminal conduct.

Mr. Spicoli (note address change)

Anonymous said...

In numerous other districts, plea agreements are not even filed with the court. The government retains the original, but nothing becomes public. On balance, being able to look it up in the court file doesn't seem so bad.

Spicoli said...

Hey Bud,
Cheap plug... how about writing something on our dingbat blog designed to take our minds off of work during the day. Listen to tunes and shrink the player. Watch Lenny Bruce's (quite topical) and Chris Rock's take on gun control. You deserve a break today.

Ok, back to unmoderated surfing.

Spicoli (we seem to be on the same page mr. anonymous -- quite obviously your birth name, like me).

Anonymous said...

This is absurd. Invariably, the people who might do a snitch harm are those who know he is cooperating without having to access PACER - those who are charged in the same case and those who did business with him. The only group that is protected by the practice of keeping plea agreements secret are the prosecutors who cut the deals.

Anonymous said...

In a world of sentencing guidelines that are taken as "gospel" (STILL) and mandatory minimum sentences, the judge presiding over the case is not the one with the power. It is the prosecutor who has the power to decide the charges brought against the accused as well as the type of plea deal they are willing to work out with the accused.

This varies GREATLY based on the particular prosecutor and the attributes of the accused.

For the very same offense, the very same prior criminal history (say this is a first time offender), and the accused is facing a MAN MIN of 25 years for being in mere possession of a controlled substance (FL Statute 893) where the weight alone triggers felony drug trafficking charges, not actually selling the substance. The famous words in that very "well written" FL statute state: "28 Grams or more of the narcotic hydrocodone/oxycodone or ANY MIXTURE THEREOF ties the judge's hands and s/he must sentence the offender to the 25 Year MAN MIN. Period. (For some types of pain pills, depending on the amount of tylenol in the tablet, this can mean a "25 Year MAN MIN" for as LITTLE as 32 pills!)

So the prosecutor holds ALL the cards here. They have the POWER but no public accountability for the deal they give one person versus another, for the exact same offense and the same criminal history. One may get charged with trafficking and take a plea deal of 5 years in prison rather than risk a 25 Year MAN MIN. Another more reasonable prosecutor who sees the case for what it is - a possession case - may decide to lower the charges to possession, which would allow the offender to participate in the Drug Court program. This has a significant impact on a person's life and future! No criminal record versus prison time and being a convicted felon? When each one did the exact same thing and has the exact same criminal history? Some are forced to provide "substantial assistance" to avoid prison. Others who may want to provide substantial assistance are not permitted to do so and those who are terrified to be a snitch are told: “Hey buddy....this is the only way you can avoid the MAN MIN you are facing.”

BOTTOM LINE: Since real judicial discretion is a thing of the past and the TRUE power rests with prosecutors who cut the deals behind closed doors - the public has the right to see and compare how "justice" is being served.

If ALL plea agreements were easily accessible, the public would be to compare plea deals for cases involving the same offense where the offender had the same criminal history, at both the federal and state level. I am sure these plea deals are all over the board. They would vary based on the prosecutor, by the color of the offender's skin and the offender’s socioeconomic status (public defender versus high priced attorney).

Sadly, for most prosecutors, at both the state and federal levels, it is all about winning a conviction for the highest criminal charge possible. It is not at all about seeking justice and ensuring the punishment fits the "offense." This is very true in state cases involving non-violent, low-level drug-related offenses.

Last I checked, Rush is free and is now the face of the G.O.P. This proves that even "good people" can become dependent on pain medications. If Rush was not famous, well connected, and able to pay for Mr. Black's services, he would be waking up every day in a Florida state prison serving a 25 year MAN MIN. Given his age, that means he would have died behind bars. A death sentence for being addicted to pain pills? He was a user - he certainly was not selling the narcotics. Addiction is a treatable MEDICAL ISSUE. Not a criminal issue. Rush got justice. No one should go to prison for an addiction. How many people are rotting away in prisons, both state and federal, for decades, who did the same thing Rush did? In the FL state prison system, we have exceeded the 100,000 mark for the first time. At least 50% of these people are non-violent, low-level drug offenders. It costs over $30,000 a year to warehouse someone in state prison for a year. Is this where we should be putting our resources in these tough economic times? Slashing education and vital public services to keep people like Rush and Cindy Mc Cain locked up?

The prosecutors have the power to use their discretion to stop some of this madness. But until their goal changes from WINNING A CONVICTION at all costs to seeking justice, they are NOT likely to be a part of the solution. Success should be measured NOT by how many people you convict and send to prison. It should be measured by how many non-violent, low-level drug offenders you are able to SAVE from prison and redirect to rehabilitation and by how many convictions and appropriate prison sentences you are able to get for those that have committed heinous, violent acts in order to protect the public and obtain justice for the victims and the families of these victims of violent crime.

The Palm Beach prosecutor who made the plea deal with Rush (allowing Rush to avoid a criminal record and prison time) should ALSO have to show the other plea deals s/he has made with others in the same situation as Rush. Did he or she send others to prison for 5, 7 or 10 years for having the same or less of a controlled substance? The prosecutor's plea agreements should be subjected to "SUNSHINE TYPE LAWS" so that the public can hold these powerful prosecutors accountable for differences in their plea deals. And they should be prepared to justify these differences. You should be entitled to the same justice regardless of your connections and/or your wallet. The lady justice statue holds scales and is blindfolded. Too bad that is not reality in our country.

The public was and is still able to determine how a judge sentences and is able to hold a judge responsible for disparities in sentences. The difference over the last few decades is that the judges have lost most of their discretion related to sentencing and the fate of the accused now rests with the prosecution. These prosecutors are not elected by the people or directly appointed by an elected official. They are accountable to no one except their boss. What are these federal and state prosecutors rewarded for doing? For winning convictions for the highest criminal charges they can bring against the plea deal preferably or by trial if necessary. But God help the person who proceeds to trial.

The system is broken and is in dire need of reform from A to Z. The odds of that happening in the near future is small. Follow the money. There are too many people profiting from the status quo.

Have you read the recent story of the judges who were sending teens to the private boot camp detention center for very minor offenses in order to get millions in kick backs for the teens they sent there? This went on for over 5 years. This is sick stuff. And these are just the ones that were caught. This is the tip of the iceberg.