That’s the shocker in Zelinsky’s testimony — he admits that the Department of Justice always seeks to penalize those, like Roger Stone, who proceed to trial. He says: “For the Department to seek a sentence below the Guidelines in a case where the defendant went to trial and remained unrepentant is in my experience unheard of.”
A quick history. The Federal Sentencing Guidelines were enacted in 1984. The stated intent of the Guidelines were to bring uniformity to criminal sentencings. A defendant who robbed a bank in New Hampshire should get the same sentence as the defendant who robbed a bank in Texas. The system was point based — use a gun, get more points. Recruit others into the scheme, add some more. For a while these Guidelines were not guidelines at all — they were mandatory, and judges were forced to impose the calculated sentence absent very rare exceptions. On first blush, that goal of consistency seems admirable.
But the Guidelines have been a complete disaster. Judges had no discretion and complained that they were mere calculators, adding and subtracting points. What were these points even based on?
Until the Supreme Court stepped in, judges were not even permitted to consider mitigation evidence. Had the defendant led an otherwise good life? Served in the military? Raised a family on her own? Was she elderly or sick? None of it mattered. Unsurprisingly, sentences dramatically increased in the wake of the Guidelines.
In addition to sentences shooting up, the number of trials sank. Before the Federal Sentencing Guidelines were enacted in 1984, about 20% of criminal cases proceeded to trial and 80% pleaded guilty. After the Guidelines, the number of trials decreased every year and now only about 3% of cases proceed to trial. Judge Jed Rakoff pointed out that even innocent people were pleading guilty. Former Judge Gleeson explained that “the Department of Justice got in the habit long ago” of “strong arming guilty pleas” in part by using urging judges to impose “excessively harsh sentencing ranges” for defendants who have the temerity of proceeding to trial.
Roger Stone’s case is a good example of the trial tax in action. Had Stone pleaded guilty, he would have been looking at a sentence of closer to 24 months under the Guidelines. And had he met with prosecutors and cooperated, he likely would have been sentenced to probation. Because he had the audacity to go to trial, his guideline range jumped to 7-9 years even though he was a first-time non-violent offender.
Zelinsky, without any sense of horror, says everyone who goes to trial should get this severe punishment determined by some made up point system, while at the same time not taking issue with the fact that the judge in sentencing Stone determined that the Guidelines were way too harsh. He concedes that the Department of Justice advocates for these absurdly high sentences in every single case where a defendant proceeds to trial with no exception. That’s the true injustice of our system and that is what needs to be reformed. Prosecutors should never be seeking 7-9 years for an old, first-time, non-violent offender. Zelinsky is right that everyone should be treated the same, but that should be with compassion, not with a hammer.
10 comments:
I’m innocent, was indicted after Secret Service Agent Germano lied to Magistrate Snow in her criminal complaint against me, was imprisoned for 4.5 months pretrial, watched AFPDs Spivack, Smith, and Doss obliterate AUSA Anton at every step at no cost to me, sat in Fort Lauderdale Federal court rooms and Marshall holding cels watching 20-some-year olds from Pompano catch decades-long man mins as their families wept in the galleries, and walked out after Ferrer filed and Zloch signed off on my 48a. Don’t get me started on the story of my Bivens case. What I find amazing is that you willingly practice given these circumstances. Go to the wall every time. The DOJ is so sickeningly corrupt.
Your not wrong, but this guy is not the case to use as the test...he is and was an asshole, fully deserving jail time for his criminal conduct. He is proud of being called a dirty trickster. He has a tattoo of Nixon on his back as a further fuck you to decency. He put a target over the photo of the judge. There is plenty more. This particular defendant deserved a longer sentence than what he received. And there is no doubt in my mind that he will never see one day of jail time.
I saw that line from zelinsky too. Couldnt believe he put it in writing. Very revealing of his thought process.
I find it absurd to hear this guy whining about how correct his grossly excessive 7-9 yr rec was, yet trying not to criticize the judge who disagreed with him, and agreed with Barr.
I was hoping Jim Jordan would confront him with sentences of murders, rapists, etc, and ask him to argue why 7-9 is appropriate for a political hack that no one would believe in a million years. Or perhaps make an argument why he should be sentenced in line with what manafort got, when he did nothing approaching Manafort.
What is stunning is that he claims his supervisors explicitly said politics were at play. Very weird in my opinion. Sure an AG could be political, but does anyone think Bill Barr or a DAG or someone from main justice actually said, "do x" because i want to help the president? Its so ridiculous. So somewhere in the chain of commmand, someone is interpreting main DOJ directives as political, and explicitly saying so. That to me is quite astounding. What will these supervisors say when asked who told them politics was at play? Im betting they will say zelinsky misunderstood, but who knows. These are strange times.
Last time I checked people had a constitutional right to go to trial. I never understood the “trial tax”. Should you be given a reduction for pleading and saving the system money? Sure - especially when you’re guilty. But if you believe you’re innocent why should you get launched into outer space for making the government prove their case?
Considering AUSA Zelinski Was likely a political appointment to the special counsel‘s office and looking to make a big name for himself he is not the heartland of federal prosecutors I know. This was a high profile politically charged case from the beginning and he was sent in like a rabbid dog after a fresh piece of meat. Even the district judge agreed that the DOJ original memo was excessive. 7 to 9 years? I think it’s time for this guy to find a new line of work.
11:28 -- do you realize the internal inconsistency of your position? If you provide a benefit to those who "plead and save the system money," then by necessity, you are penalizing those who do not.
Whether you call it a "benefit" to pleading (as the guidelines effectively do) or a "tax" for going to trial is mere semantics.
The trial tax is as real as it gets. Judges will give double, triple a sentence to a defendant convicted at trial than that of a co-defendant who pleads guilty, whether factoring in cooperation or not. Then the judiciary, ironically, laments the "disappearing jury trial" in the legal literature. Go figure.
Gotta expect a little bit more after a trial - acceptance should merit something. I can't think of a fixed percentage. But I can tell you that I get very upset when a client receives an above GL (bottom) sentence after taking a plea.
Would you be okay with a 20%, 10%, 30% increase above pleas?
I give up. On you and your blog. To read your blog, injustice only happens to rich white men. Good luck David
(BTW - twitter is more expedient, but the blog allows for more depth)
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Please dont go! What will this blog possibly do without you?
David thinks it happens to rich Black Men and Women too! Also, rich Republicans, rich Democrats, and even the occasional rich Libertarian or Harvard professor.
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