The above title is from a New York Times article published today. This quote is from the article:
“Legal experts attribute the decline primarily to the advent of the congressional sentencing guidelines and the increased use of mandatory minimum sentences, which transferred power to prosecutors, and discouraged defendants from going to trial, where, if convicted, they might face harsher sentences.”
Former Judge John Gleeson, who in March stepped down from the federal bench in Brooklyn to enter private practice, noted in a 2013 court opinion that 81 percent of federal convictions in 1980 were the product of guilty pleas; in one recent year, the figure was 97 percent.
Judge Gleeson wrote that because most pleas are negotiated before a prosecutor prepares a case for trial, the “thin presentation” of evidence needed for indictment “is hardly ever subjected to closer scrutiny by prosecutors, defense counsel, judges or juries.”
“The entire system loses an edge,” he added, “and I have no doubt that the quality of justice in our courthouses has suffered as a result.”
There are many reasons for the unfortunate lack of trials (the extraordinary expense of going to trial, especially in white-collar cases, being one). But, I agree that unfairly harsh sentencing guidelines often dictate that a defendant plead guilty and get the benefit of a 5K downward departure from a recommended guideline sentencing range for offering “substantial assistance.”
I have written before about why I think the antitrust sentencing guideline in particular is a poor measure of culpability and serves mainly to enhance the government’s bargaining position in inducing pleas to escape the possibility of an irrationally harsh guideline sentence. See Cartel Capers, “The Need To Reform the Antitrust Sentencing Guidelines for Individuals.” A defendants’ culpability in an antitrust crime is measured principally by the volume of commerce. While the volume of commerce has some relevance to the culpability of the defendant, the guidelines assign it an overwhelming weight. A defendant can reach up to a 16 level upward adjustment based on the volume of commerce attributed to that defendant. The disconnect from culpability is more dramatic in the case of a subordinate. The volume of commerce assigned to an individual defendant is the same for the most and least senior/culpable actor in an organization if their participation in the cartel was of the same duration. In other words, the CEO who formed the cartel may have the same volume of commerce adjustment as his subordinate to whom he assigned the task of exchanging prices/volumes with competitors.
Along these lines, I have been contemplating how the guidelines might be changed and have come up with a draft “Shadow Antitrust Guideline.” No doubt this draft can be improved upon with the input from a broad range of defense lawyers, judges, academics, economists and others. My basic idea is to recognize, but greatly reduce, the volume of commerce upward adjustment. The draft also delinks the volume of commerce adjustment for a subordinate who plays no role in forming the cartel, but is delegated the task of exchanging prices/market shares, etc. with competitors. Another objective of my draft is to reduce the possibility of approaching the 10 year maximum sentence unless there is some serious aggravating factor relating to culpability such as recidivism, express coercion of a subordinate or competitor, a particularly vulnerable victim or some other unusual aggravating circumstance besides the cartel involving a large amount of commerce. Also, I would like to see some upward adjustment for a CEO or other senior executive who had the authority to institute an antitrust compliance program but did not.
I certainly appreciate all the feedback I get on this subject, either anonymously, as a guest post, or any other way.
Thanks for reading.