Monday, December 17, 2012


The United States Sentencing Commission has just published a complete overview of all Federal Criminal Cases for the Fiscal Year which makes for entertaining reading for your favorite Federal Criminal Attorney

Prisoners in the Federal System are pleading guilty rather than going to trial because judges do not have discretion to give fair sentences  in Tampa Bay, Florida and thru out the country.
Van  Gogh, Prisoners Round, 1890
The report notes that over 96% of federally indicted Americans plea guilty rather than go to trial; but  those writing the report indicate that's not a problem because that's how it's been for ten years. 

The truth is Americans indicted by Grand Juries plead guilty because they believe the system is rigged. Are they right?

Rather than keep you in suspense here are some of the interesting nuggets from the Commissions Report, then we'll look at why so many Americans choose guilty pleas with long prison terms rather than risking trial by jury:
The vast majority of convicted defendants plead guilty. In fiscal year 2011, more than 96 percent of all offenders did so, a rate that has been largely the same for ten years. When offenders pled guilty, 44.0 percent received a sentence below the applicable sentencing guideline range, either at the request of the government, at their own request, or initiated by the court. Approximately 61 percent (61.5%) of these below range sentences were requested by the government, usually because the defendant had provided substantial assistance to the government or had agreed to have his or her case handled as part of an early disposition program.
Clearly the classic adversarial criminal court system has broken down when it comes to Federal Criminal Cases. Defense lawyers and their clients are unwilling to test the strength of the Government cases at trial. There are a number of reasons for the trend toward ever greater plea bargaining.
First, one could argue that most Federal cases are the result of better investigative techniques than typical criminal cases from the State of Florida, with the Feds simply amassing much more firepower aimed squarely at a Defendant. The Feds fight with more funding, more time and better educated, more experienced law enforcement officers who often graduated from doing smaller state investigations. 
Yet the Feds often get it wrong. Recently we've seen the expanding scandal of failed FBI forensics laboratories leading to unacceptable convictions of the innocent, as well as 28,000 flawed hair and fiber cases, failed DNA cases and other flawed evidence in which Federal Laboratories proffered wrong expert testimony and expert analysis in American Courtroom. What about the thousands of innocent Defendants who were persuaded to plea because it was the best deal they could get and the Defense Lawyers, instead of believing in their clients' innocence believed the faulty evidence to be reliable. The result is an unconscionable verdict of failing justice in the Federal Criminal Justice System.

Another reason there are high plea percentages in Federal cases is the severity of the Federal Sentencing Guidelines in which a conviction will mean years spent in the vast Federal Prison System. But years will be spent even if there's a plea of guilty, as the Sentencing Commission's Report notes that the average Federal sentence last year was over five years in prison.

Neither of these reasons should hinder such a high number of American Defendants from waiving their constitutional right to jury trials. Unless that is, they find that the game is rigged. 
From my experience in the Middle District of Florida in Tampa it's clear that sentences are usually severe even when there is a plea bargain that results in a plea agreement. 
This is true because the Sentencing Guidelines only grant a three level departure for acceptance of responsibility coupled with a few more levels down if the Judge finds that there's co-operation based on a 5K, but the Federal law requires that the Prosecutor file a Motion for Downward Departure based on substantial assistance otherwise the Judge can not look at co-operation for sentencing departures.
Ultimately the reason there are over 96% of pleas of guilty in Federal Cases is that our system is no longer fair. What happened?
The Federal Sentencing Guidelines have taken too much of the discretion away from our sentencing Judges and given it to Prosecutors. Prosecutors easily manipulate the grand jury to re-indict when there is no plea. Despite the work of Clearwater Criminal Defense Attorneys Prosecutors use the Sentencing Guidelines as leverage to force guilty pleas even when evidence is weak or where the facts and circumstances of the case do not exclude the possibility of actual innocence.