[Marxism] Sentencing Shift Gives New Leverage to Prosecutors

Bonnie Weinstein giobon at comcast.net
Mon Sep 26 10:54:00 MDT 2011

Sentencing Shift Gives New Leverage to Prosecutors
"After Mr. Guthrie, 24, was arrested here last year, accused of  
beating his girlfriend and threatening her with a knife, the  
prosecutor offered him a deal for two years in prison plus probation.  
Mr. Guthrie rejected that, and a later offer of five years, because  
he believed that he was not guilty, his lawyer said. But the  
prosecutor’s response was severe: he filed a more serious charge that  
would mean life imprisonment if Mr. Guthrie is convicted later this  
year. Because of a state law that increased punishments for people  
who had recently been in prison, like Mr. Guthrie, the sentence would  
be mandatory. So what he could have resolved for a two-year term  
could keep him locked up for 50 years or more."
September 25, 2011

GAINESVILLE, Fla. — After decades of new laws to toughen sentencing  
for criminals, prosecutors have gained greater leverage to extract  
guilty pleas from defendants and reduce the number of cases that go  
to trial, often by using the threat of more serious charges with  
mandatory sentences or other harsher penalties.

Some experts say the process has become coercive in many state and  
federal jurisdictions, forcing defendants to weigh their options  
based on the relative risks of facing a judge and jury rather than  
simple matters of guilt or innocence. In effect, prosecutors are  
giving defendants more reasons to avoid having their day in court.

“We now have an incredible concentration of power in the hands of  
prosecutors,” said Richard E. Myers II, a former assistant United  
States attorney who is now an associate professor of law at the  
University of North Carolina. He said that so much influence now  
resides with prosecutors that “in the wrong hands, the criminal  
justice system can be held hostage.”

One crucial, if unheralded, effect of this shift is now coming into  
sharper view, according to academics who study the issue. Growing  
prosecutorial power is a significant reason that the percentage of  
felony cases that go to trial has dropped sharply in many places.

Plea bargains have been common for more than a century, but lately  
they have begun to put the trial system out of business in some  
courtrooms. By one count, fewer than one in 40 felony cases now make  
it to trial, according to data from nine states that have published  
such records since the 1970s, when the ratio was about one in 12. The  
decline has been even steeper in federal district courts.

Cases like Florida v. Shane Guthrie help explain why. After Mr.  
Guthrie, 24, was arrested here last year, accused of beating his  
girlfriend and threatening her with a knife, the prosecutor offered  
him a deal for two years in prison plus probation.

Mr. Guthrie rejected that, and a later offer of five years, because  
he believed that he was not guilty, his lawyer said. But the  
prosecutor’s response was severe: he filed a more serious charge that  
would mean life imprisonment if Mr. Guthrie is convicted later this  

Because of a state law that increased punishments for people who had  
recently been in prison, like Mr. Guthrie, the sentence would be  
mandatory. So what he could have resolved for a two-year term could  
keep him locked up for 50 years or more.

The decrease in trials has also been a consequence of underfinanced  
public defense lawyers who can try only a handful of their cases, as  
well as, prosecutors say, the rise of drug courts and other  
alternative resolutions.

The overloaded court system has also seen comparatively little  
expansion in many places, making a huge increase in plea bargains a  
cheap and easy way to handle a near-tripling in felony cases over the  
past generation.

But many researchers say the most important force in driving down the  
trial rate has been state and federal legislative overhauls that  
imposed mandatory sentences and other harsher and more certain  
penalties for many felonies, especially those involving guns, drugs,  
violent crimes and repeat offenders.

Stiffer punishments were also put in place for specific crimes, like  
peddling drugs near a school or wearing a mask in certain  
circumstances. And legislators added reams of new felony statutes,  
vastly expanding the range of actions considered illegal.

These tougher penalties, by many accounts, have contributed to the  
nation’s steep drop in crime the past two decades. They have also  
swelled the prison population to levels that lawmakers in some states  
say they can no longer afford, and a few have rolled back some laws.

The ‘Trial Penalty’

In the courtroom and during plea negotiations, the impact of these  
stricter laws is exerted through what academics call the “trial  
penalty.” The phrase refers to the fact that the sentences for people  
who go to trial have grown harsher relative to sentences for those  
who agree to a plea.

In some jurisdictions, this gap has widened so much it has become  
coercive and is used to punish defendants for exercising their right  
to trial, some legal experts say.

“Legislators want to make it easy for prosecutors to get the  
conviction without having to go to trial,” said Rachel Barkow, a  
professor of law at New York University who studies how prosecutors  
use their power. “And prosecutors who are starved for resources want  
to use that leverage. And so now everyone acts with the assumption  
that the case should end with a plea.”

“When you have that attitude,” she said, “you penalize people who  
have the nerve to go to trial.”

Prosecutors say they are giving defendants options and are merely  
charging them based on what is allowed under the law for those who  
turn down pleas.

While legal experts say the effect is clear in persuading more  
defendants to forgo trials, the trial penalty is hard to quantify  
without examining individual cases and negotiations between  
prosecutors and defense lawyers.

That is because threats of harsher charges against defendants who  
reject plea deals often are the most influential factor in the  
outcome of a case, but this interplay is never reflected in official  

“How many times is a mandatory sentence used as a chip in order to  
coerce a plea? They don’t keep records,” said Senior Judge John L.  
Kane Jr. of United States District Court in Denver, who believes that  
prosecutors have grown more powerful than judges. But it is very  
common, he added. “That’s what the public doesn’t see, and where the  
statistics become meaningless.”

But one result is obvious, he said: “We hardly have trials anymore.”

In 1977, the year Judge Kane was appointed to the bench, the ratio of  
guilty pleas to criminal trial verdicts in federal district courts  
was a little more than four to one; by last year, it was almost 32 to  

Here in Florida, which has greatly toughened sentencing since the  
1990s, felony defendants who opt for trial now routinely face the  
prospect of higher charges that mean prison terms 2, 5, or even 20  
times as long as if they had pleaded guilty. In many cases, the  
process is reversed, and stiffer charges are dismissed in return for  
a plea.

Before new sentencing laws, the gap was narrower, and trials less  
risky, veteran lawyers here say. The first thing Denis deVlaming, a  
prominent Florida criminal defense lawyer, does with a new client is  
pull out a calculator to tally all the additional punishments the  
prosecutor can add to figure the likely sentence if the client is  
convicted at trial.

“They think I’m ready to charge them a fee, but I’m not,” he said. “I  
tell them in Florida, it’s justice by mathematics.”

No matter how strongly defendants believe they are innocent, he said,  
they could be taking dangerous risks by, for example, turning down a  
one-year plea bargain when the prosecutor threatens additional  
charges that carry a mandatory sentence 10 times as long.

A Power Shift

The transfer of power to prosecutors from judges has been so profound  
that an important trial ritual has become in some measure a lie, Mr.  
deVlaming said — the instructions judges read stating that the jury  
determines guilt or innocence, and the judge a proper sentence. The  
latter part is no longer true when mandatory minimums and, in many  
cases, sentencing guidelines apply, but jurors often do not know that.

Legal scholars like Paul Cassell, a conservative former federal judge  
and prosecutor who is now a law professor at the University of Utah,  
describe the power shift as a zero-sum game.

“Judges have lost discretion, and that discretion has accumulated in  
the hands of prosecutors, who now have the ultimate ability to shape  
the outcome,” Mr. Cassell said. “With mandatory minimums and other  
sentencing enhancements out there, prosecutors can often dictate the  
sentence that will be imposed.”

Without question, plea bargains benefit many defendants who have  
committed crimes and receive lighter sentences than they might after  
trial. It also limits cases that require considerable time and  
expense in court.

But many defendants who opt for trial effectively face more prison  
time for rejecting a plea than for committing the alleged crime.

In Mr. Guthrie’s case, he was initially charged with aggravated  
battery on a pregnant woman and false imprisonment. But after he  
rejected the plea bargains, the prosecutor, more than a year later,  
filed the more serious charge of first-degree felony kidnapping,  
based on the girlfriend’s accusation that he pulled her by the arm  
inside her home and, once outside, grabbed her hair and pulled her on  
her feet the distance of several parking spaces.

Nobody is suggesting that Mr. Guthrie, previously incarcerated for 18  
months on gun, assault and drug charges, is a sympathetic figure.  
According to a police report, he punched and kicked his girlfriend,  
left her with a bruised and bloody nose and a face that “appeared to  
be swollen,” and threatened to cut her stomach with a knife.

The assistant state attorney handling the case, Frank Slavichak, did  
not return calls. The chief investigator for the office, Spencer  
Mann, said Mr. Guthrie’s choices dictated the course of the case.

But his lawyer, Craig DeThomasis, hired after the plea rejections,  
said he was “plainly being punished for exercising his right to  
trial.” According to Mr. Guthrie’s mother, Claudia Guthrie, the  
prosecutor told her son at a hearing this spring that if he did not  
plead guilty and take a five-year sentence, higher charges would be  
filed that mean “you’re going to get life.” Mr. Mann did not dispute  
that some sort of warning of new charges was presented.

Mr. DeThomasis said that there was no evidence the girlfriend was  
pregnant, and that she started the altercation by hitting him in the  
forehead with a pipe, landing him in the jail infirmary for a week.  
He pointed out that she was arrested in 2009 for attacking Mr.  
Guthrie after telling the police he had struck her, leading police to  
say in a report that she had “changed her story several times and  
could not explain her actions.” He also said she had a history of  
involuntary hospitalizations, which she declined to address in a 110- 
page sworn deposition in February.

Mr. Mann declined to comment on the girlfriend’s background but said  
none of it affected the credibility of the case.

Judges in many cases can set aside verdicts that they believe are  
unsupported by the evidence, but they generally have no power in  
mandatory-minimum cases to reduce punishments below levels  
established through legislation.

While the Guthrie case may be a particularly stark example of how  
much power one prosecutor can have over a defendant’s fate, many  
places have given district attorneys similar influence.

“There have been so many laws passed in the various states that just  
about always there is some enhancement available to the prosecutor  
that can be used as leverage in negotiations,” said Scott Burns,  
executive director of the National District Attorneys Association.

Mr. Burns, a former Utah prosecutor, did not dispute that sentencing- 
law changes had made trial riskier for defendants and helped drive  
down the percentage of cases taken to a verdict. He also acknowledged  
that the plea-bargain process “clearly is coercive” when defendants  
face harsher or more numerous charges for rejecting deals.

But he said plea bargains were also “extremely lenient in many  
instances because prosecutors are taking several criminal acts off  
the table.” He emphasized that lawmakers time and again have given  
prosecutors more leverage and said it was “grossly unrealistic” to  
criticize district attorneys for enforcing laws that they are duty- 
bound to uphold — even those that are ill-advised.

“There are a lot of criminal laws that are passed that we all kind of  
roll our eyes at,” he said. “Sometimes they are just repetitive;  
sometimes they are knee-jerk responses to some high-profile case, and  
therefore politically motivated.”

Though national statistics are not readily available, the trend  
toward lower trial rates is evident in a number of places.

The National Center for State Courts in Williamsburg, Va., found that  
the percentage of felonies taken to trial in nine states with  
available data fell to 2.3 percent in 2009, from 8 percent in 1976.

The number of jury trials rose slightly, while nonjury trials, where  
a judge decides guilt or innocence, fell sharply — all while  
caseloads nearly tripled. The states account for more than a third of  
the American population, and most have mandatory minimums or  
sentencing guidelines or have passed toughened sentencing laws.

The Bureau of Justice Statistics, after studying partial data on  
state-court felony prosecutions nationwide, found that from 1986 to  
2006 the ratio of pleas to trials nearly doubled.

The shift has been clearer in federal district courts. After tougher  
sentencing laws were enacted in the 1980s, the percentage of criminal  
cases taken to trial fell to less than 3 percent last year, from  
almost 15 percent, according to data from the State University at  
Albany’s Sourcebook of Criminal Justice Statistics. The explosion of  
immigration prosecutions, where trials are rare, skews the numbers,  
but the trend is evident even when those cases are not included.

Nearly nine of every 10 cases ended in pleas last year, the federal  
data show, while one in 12 were dismissed (the percentage of  
dismissed cases was substantially higher a generation ago).

The number of acquittals dropped even further. Last year, there was  
only one acquittal for every 212 guilty pleas or trial convictions in  
federal district courts. Thirty years ago, the ratio was one for  
every 22.

More Plea Bargaining

Experts like Ronald Wright, a former federal prosecutor and now a  
professor of law at Wake Forest University, say they fear that the  
steep decline in acquittals stems partly from more defendants, who  
might have winnable cases, deciding not to risk trials and  
reluctantly accepting plea bargains instead.

Some federal prosecutors worried that their power would be weakened  
by a 2005 Supreme Court ruling that made sentencing guidelines  
advisory only. But academics say the ruling had much less effect than  
what some predicted as many judges still largely follow the  
guidelines, and the ruling did not affect other laws that have given  
prosecutors more power.

While sentencing changes allowed legislators in this state to take  
credit for being tough on crime, they have also worked against their  
goal of trimming prison costs, leaving prosecutors caught in the middle.

“There is a big disconnect,” said Bill Cervone, the state attorney in  
Gainesville and the chief prosecutor in six counties that make up  
Florida’s Eighth Judicial Circuit. “There is subtle and not so subtle  
pressure” to reduce the numbers sent to prison.

Mr. Cervone, who was head of the Florida Prosecuting Attorneys  
Association, added, “Our position is, ‘Please don’t pass any new  
crime laws while you are also cutting our budgets.’ ” His budget has  
been cut 20 percent in four years.

The fiscal strains extend to judges, who face pressure to keep  
dockets moving. Some do not appreciate defendants who refuse pleas  
and then lose a time-consuming trial, he and other lawyers say.

“There are some judges who will punish you for going to trial,” Mr.  
Cervone said. “Legally, you cannot impose a longer sentence on  
someone because they exercised their right to trial,” he said,  
speaking of judges. “Factually, there are ways to do it.”

In some cases, he added, he wished judges had more discretion,  
instead of having to automatically impose an inflexible punishment.

So, too, do many judges faced with cases where legislatively mandated  
penalties do not square with their idea of justice.

Like the one in Polk County, Fla. that began when Orville Wollard  
said he fired his registered handgun into his living room wall to  
scare his daughter’s boyfriend out of the house after he repeatedly  
threatened his family.

In Mr. Wollard’s view, he was protecting his family and did not try  
to hurt the boyfriend, who was not hit, though the judge said the  
bullet missed him by inches. But after Mr. Wollard turned down a plea  
offer of five years of felony probation, prosecutors won a conviction  
two years ago for aggravated assault with a firearm. Because the gun  
was fired, a mandatory-minimum law required a 20-year term.

At his sentencing, Mr. Wollard said he felt as if he were in “some  
banana republic” and described the boyfriend as a violent drug  
dealer. But prosecutors said the judge had “no discretion” because of  
the state law.

Reluctantly, the judge agreed. “If it weren’t for the mandatory  
minimum aspect of this, I would use my discretion and impose some  
separate sentence,” he told Mr. Wollard, adding that he was “duty  
bound” to impose 20 years.

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