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.
|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.
Your favorite Clearwater Criminal Defense Lawyer feels fortunate when fate, providence and sheer blind luck somehow combine to send that stray twenty dollar bill his way close enough to pocket it now and then.
How much better it would be to possess a very rare and unusual $500 million United States Treasury Reserve Bank Note from the 1930s. Unfortunately the Florida Defendant’s fancy U.S. Treasury Reserve Bank Note proved to be fake.
|$100,000 Bill, 1934: Largest Ever Issued
The man was charged with Federal Scheme to Defraud when he supplied not only the bank note but along with it, an actual old bank safe vault holding the note providing an authentic provenance during what must have been a weighty FBI sting.
The federal sentencing guidelines as reflected in the Presentencing Investigation Report recommended at least 42 months of Federal prison.
Press Reports note that the Florida Federal Judge decided to show mercy for an unusual reason not normally found in the Federal Sentencing Guidelines instead:
“It becomes almost laughable,” the judge said. “To me, it doesn’t promote respect for the law to send someone to prison … for doing something so silly and outrageous.”
The judge sentenced Ayison to six months of house arrest, five years of probation and 250 hours of community service and must also undergo a psychiatric evaluation…
That psychiatric evaluation sounds like a great idea, but so does showing some merciful discretion in a case like this where the absurd facts clearly led the Court to consider that jail in this case was inappropriate.
There’s a lesson here for defense counsel. If an underlying criminal charge or the facts and circumstances of a case gives the judge a smile, he’ll find it difficult to give the Defendant prison. More of the best Judges are wisely using their sentencing discretion to reduce unnecessary prison time in cases like this one.
Your Clearwater Criminal Defense Attorney suggests that when a guy comes to you with a fancy antique safe and a $500 million United States Treasury Bank Note, you should remember that Federal prosecutors told the Judge that there is no such thing as a genuine half-billion dollar U.S. Bank Note, but that antique safe might be worth something.
The Federal Bureau of Prisons (BOP) is known for rarely if ever allowing early release for Federal prisoners for medical illness. As a general rule only FDA approved drugs with a proper Doctor’s prescription are allowed within Federal Prisons, even if your favorite Clearwater Criminal Defense Lawyer tries to hide some in a birthday cake with the nail file.
|Joseph Wright, Experiment on Bird, 1768
It’s important for defense attorneys to understand the BOP regulations for drugs that can be administered in Federal Prison. I had a client who had committed in access of half a million dollars in fraud, scored a minimum of 96 months in jail on the Presentencing Report and had a pending Trafficking in Marijuana from New Orleans; he was also a very sick man with hepatitis C.
At sentencing I argued that the Defendant was bravely being a human guinea pig by taking experimental non-FDA approved drugs from Shands Hospital. And further at sentencing we established that he’d bravely been testing the new drugs which could kill him yet at the same time could be the only thing keeping him alive. Further, since the experimental drugs were not FDA approved, no Federal Prison could give the drugs to him and the kind Doctors at Shands wanted to continue their experiments on the Defendant. The Judge over the Government’s strong objections did not sentence the Defendant to any prison time at all.
But what if a Defendant is already in Jail. How do you establish that he is so gravely ill that he should be released? Here from defense attorney Amy Baron-Evans is a success in forcing BOP to release an inmate based on compassionate release:
BOP rarely files a motion for early release under 18 U.S.C. § 3582(c)(1)(A) when an inmate has a terminal illness or for other extraordinary and compelling reasons under USSG 1B1.13. In this case, the inmate, Phillip Smith, was diagnosed with acute myelogenous leukemia in August 2011, but BOP twice refused to file the motion because, it said, his criminal history outweighed his medical needs (and imminent death). Phillip contacted his lawyer, Ruben Iniguez, and Ruben and Steve Sady filed a motion with the court, contending that BOP was putting itself in the position of the judge, not filing the motion unless it thought the motion should be granted. After a couple of weeks of litigation, BOP agreed to file the motion, and the judge immediately ordered Mr. Smith’s release on March 12, 2012, seven months after the motion should have been filed. Mr. Smith gave a videotaped interview from home on April 2 and died April 9. Hundreds of people die of natural causes in BOP custody every year but BOP filed only 55 motions from 2009 to 2011. This was an unusual case in that the client called his lawyer and the lawyer took action that put pressure on BOP to file the motion.
When parents are incarcerated what happens to their children – will their children be sent to foster care in Tampa Bay or will their children be sent to live with relatives who may not want them? Well known and alarming foster care failures in Tampa, Clearwater & Pinellas Florida have endangered the very lives of the children foster care was meant to protect.
In any case involving prison for parents the Judge should be made fully aware by the Criminal Defense Attorney of what the State of Florida intends to do with the children before sentencing. If the plan is to have the children sent to live with relatives its important to find out if the relatives have the means, passion and integrity to care for the children and depending on the ages of the children to determine if this is in their best interests.
With some finesse the Pinellas Defense Lawyer should become an advocate for the children urging the Court to weigh the damage incarcerating the parents will do to the children against the nature of the crime, the severity of the crime and the prior record of the parents. Clearly, the safety of the children should be the Court’s chief concern followed by the need to punish the parents under Florida law, in which case parenting issues during incarceration becomes critical as does this Florida Manual for Incarcerated Parents which contains important legal forms such as a power of attorney.
An excellent article, When a parent is incarcerated: a primer for social workers, helps to explain the many complex problems that can arise when parents are incarcerated, particularly if their children must go into foster care. It should also be helpful for attorneys to use in sentencing mitigation and helping clients cope with the anxiety of being away from their children.
|Van Gogh, Portrait of Camille Roulin, 1888
Portrait of Camille Roulin, 1888,
The United States Sentencing Commission just finished an extensive study on the effects of Mandatory Minimum sentences in federal sentencing which it has just sent to the U.S. Congress.
You’ll find some excellent recommendations that Congress should immediately adopt such as reducing Mandatory Minimum sentences, giving Judges more discretion in sentencing, reducing Prosecutorial power, enlarging the safety valve for more than just first time offenders, making the guidelines fairer and reducing demographic and racial disparity in sentencing – all of which would provide your Federal Criminal Trial Attorney with some reason to believe that sentencing under the Federal Guidelines really could become fair and impartial.
Below is a brief summary from Amy Baron Evans (many thanks) of Chapter 12 (the Recommendations). You can access the entire study from the link below.
Drugs · “Commission analysis indicates that the quantity of drugs involved in an offense is not as closely related to the offender’s function in the offense as perhaps Congress expected.” “[O]ffenders who performed lower-level functions such as Couriers and Mules also were convicted of drug offenses carrying a mandatory minimum penalty in a significant proportion of their cases (49.6% and 43.1%, respectively). For every function, the quantity of drugs involved in the offense on average resulted in a median base offense level that included or exceeded the five-year mandatory minimum penalty.” But, USSC suggests, safety valve and role adjustments correct for the problem on average.
· Criminal history in drug cases – the “cumulative impacts”
of 851, the CH score, and the unavailability of safety valve relief “can result in disproportionate and excessively severe sentences in certain cases.”
FAMM – The Fair Sentencing Act of 2010
Stacking 924(c)s “results in excessively severe and unjust sentences in
some cases.” Average sent5ence was 351 months! “There are some circumstances where such a long sentence may be appropriate (e.g., in the eight cases in fiscal year 2010 in which the offender’s primary guideline was §2A1.1, which covers first degree murder), but there are other circumstances in which the offender received such a long sentence even though the offense did not involve any physical harm or threat of physical harm to a person.”
Mandatory Minimum Sentencing | Drug War Facts
ACCA: Applied inconsistently in part because whether an offense is a
“violent felony” or “serious drug offense” depends on the stat max in the convicting state (one year or 10 years, respectively). “As a result, the Armed Career Criminal Act’s mandatory minimum penalty can apply to offenders who served no or minimal terms of imprisonment for their predicate offenses, further increasing the potential for inconsistent application insofar as the penalty may be viewed as excessively severe in those cases.” Recommendations:
· Reduce the penalties for 924(c)s, especially stacked 924 (c)s
· Make 924(c) a true “recidivist” statute by limiting to prior convictions
· Give the court limited discretion to impose consecutive sentences for multiple 924(c)s as in 1028A
USSC will study further and make recommendations later, but “preliminary
review of the available sentencing data suggests that the mandatory minimum penalties for certain child pornography offenses and the resulting guidelines sentencing ranges may be excessively severe and as a result are being applied inconsistently.” The data is non-gov sponsored variances, gov-sponsored variances, and failure to charge the mand min in 53% of cases where it’s available.
Aggravated Identity Theft
USSC likes this better than other MMs because (1) the two-year consecutive
penalty is relatively short, (2) the court has discretion to impose sentences for multiple violations concurrently, (3) there is no stacking provision, and (4) it does not depend on CH or weapons, which creates demographic disparity under other MMs. There is inter-district disparity in the use of 1028A but this may be because it’s new, and in any event, the punishment is relatively short.
Safety valve in general
Congress should consider whether to enact safety valve for low-level,
non-violent offenders convicted of other offenses.
This recent painting depicts a beaming French Poodle who sits centre stage as the wise Judge at Court. That’s an adoring bailiff at the judge’s left paw staring at the Judge with appropriate admiration and respect. I’m the bright black Labrador to the Judge’s right with an Important Brief that I’ve dipped in beef broth in hopes of the Judge devouring my every word.
|Trial by Jury or Laying Down the Law by Sir Edwin Landseer, 1840
|The painting was inspired by a chance comment by an infamous Tampa Bay Judge, over dinner with the painter Sir Edwin Landseer, that the French poodle belonging to amateur artist and renowned socialite, the Count d’Orsay of Clearwater Beach, Florida “would make a capital Lord Chancellor (Chief Judge in England).”
Professor Douglas Berman writes about the futility of long prison sentences for white collar defendants involving fraud and insider trading. At first glance he persuasively argues that for white collar criminals ‘shaming sanctions’ could be a more effective deterrent than jail.
Isn’t the Professor really suggesting that rich men, men of culture perhaps not unlike the Professor himself, should not have to live by the rules that the rest of us must follow and if caught need not suffer the consequences the rest of us would face.
No, the real problem with sentencing in America is in too much prosecutorial power in charging decisions, too little discretion left in the hands of Judges, and the harsh sentences for victimless crimes such as routine 25 year minimum mandatory sentences for drugs. Isn’t eleven years for an assault on the free market system and a take of nearly 54 million dollars about right? Or as one observer noted, “No matter the crime, if the rewards are great enough, people will ignore the risk of getting caught.”
Would a sign saying, “I am an INSIDER TRADING THIEF,” hung around the Defendant’s neck effectively persuade others contemplating similar crimes not to corrupt capitalism?
Nor does the Professor note that the NYTs reported that Judge Howell did reduce the guidelines sentence based on personal factors including his charity work in the community, his age and his advanced diabetes which the Court noted would make his jail time harsher than time served by a typical inmate.
And the Judge makes some telling points that show shame to be a weak cure for this disease: “Insider trading is an assault on the free markets,” said Judge Holwell, who also imposed a $10 million fine and ordered Mr. Rajaratnam to forfeit $53.8 million in ill-gotten profits, “His crimes reflect a virus in our business culture that needs to be eradicated.”
Sentenced to 11 Insider Case – NYTimes.com
Ten top American fraudsters – Telegraph
Here are two paragraph excerpts from the Professor’s Time article. What Will Deter Insider Trading? | TIME Ideas | TIME.com
Raj Rajaratnam, who was convicted of masterminding the biggest hedge-fund insider trading scheme in American history, federal prosecutors urged U.S. District Judge Richard Holwell to give him at least 20 years in prison “to send a clear and unequivocal message that illegal insider trading will not be tolerated.” Judge Holwell imposed 11 years — a relatively long sentence compared to insider-trading-Hall-of-Famers such as Ivan Boesky, who served only two years in federal prison.
A variety of shaming sanctions were widely used during the 18th Century in America, in part because prisons did not then exist and in part because shaming was viewed as a humane alternative to the death penalty, banishment or brutal physical punishments. More recently, academics have debated the potential virtues and vices of modern shaming sanctions — often after a judge has ordered a shoplifter to wear publicly a sign saying “I am a thief” or a police department has published drunk drivers’ names on billboards. Because we have never tried to make white-collar offenders “pay” for their crimes through extensive and prominent use of shaming sanctions, I cannot say with confidence that this alternative form of punishment will be more effective. But because deterrence research suggests very long prison terms for white-collar offenders may greatly extend their suffering (and taxpayer-funded imprisonment costs) with no corresponding benefit to society, I think it is time to start considering creative alternatives.
Federal Crimes Trial Lawyer & Criminal Defense Attorney in Florida
White Collar Crime Criminal Defense Attorney in St. Petersburg, Pinellas, Clearwater, FL
Criminal Defense Attorney in St. Petersburg, Pinellas, Clearwater, FL
Raj Rajaratnam sentenced to 11 years in prison for insider trading – Telegraph
Raj Rajaratnam; insider trading; sentence; hedge funds; federal prison – Los Angeles Times
FBI — Hedge Fund Founder Raj Rajaratnam Sentenced in Manhattan Federal Court to 11 Years in Prison for Insider Trading Crimes
Prison Time for Inside Trading Is Climbing – WSJ.com
Sentencing Law and Policy: Purposes of Punishment and Sentencing
|Stealing fire isn’t singe free — Prometheus having his liver eaten by an eagle. Painting byJacob Jordaens, c. 1640
For Clearwater Criminal Attorneys and their unfortunate clients who find themselves trapped within the legal morass of charged misconduct or federal grand jury investigations within the Federal Middle District of Florida, which includes Tampa, Largo and St. Petersburg Florida, the Sentencing Commission is now publishing case law summaries by circuit. The objective at Federal Sentencing is to use the Federal Guidelines for the best unique sentencing arguments for mitigation of a defendant’s sentence. The Federal legal summaries are merely that, just summaries of legal decisions.