Bargaining – and Threatening – for Justice

Of course I’m always delighted to see Republican politicians nailed for corruption: how else are we going to recruit conservatives to the cause of criminal justice reform? And there seems to be no doubt that Gov. McDonnell was using his office to line his pockets, though it’s less clear what Star Scientific thought it was going to get for its money.

But I just stumbled on a story that ran just after the indictment reporting that McDonnell was offered a plea deal and turned it down. The deal was for a plea to a single felony, no prison time, and no indictment of his wife. Instead he chose to fight the charges, and now both he and his wife face years behind bars.

To my eyes, that’s a problem, and the symptom of a bigger problem.

Start with the charges against Maureen McDonnell. I haven’t figured out the facts, so I can’t judge how responsible she was for what went on. It appears that on a personal level  her guilt was in some sense greater than her husband’s, but he was the office-holder. In any case, whether she was charged with a crime should not have depended on whether someone else took a plea. If she deserved to be charged, she should have been; else, not.

Whether Maureen McDonnell deserves to go to prison or not, it seems to me obviously wrong for the prosecutors to use her as a pawn in negotiations with her husband, and to put her husband in a position where his decision to exercise his Constitutional right to a trial put his wife’s liberty in jeopardy.  She shouldn’t be punished (or given a break) for someone else’s actions, and he shouldn’t have to face the threat that his intimates might be punished as well as himself.

This criticism puzzles my friends who are prosecutors. They tell me I just don’t understand how things work. In fact, I do understand. I just don’t approve.

Congress and the state legislatures  - for reasons I don’t fully grasp - have decided to hire lots and lots of cops and other investigators, but not  to create enough judges, hire enough prosecutors, or pay for enough public defense counsel to actually afford “a speedy and public trial” to the vast majority of defendants. As a result, the process of justice is now primarily a process of bargaining, with something like 95% of all dispositions (putting aside arrests never leading to a charge and cases dismissed along the way) by plea rather than verdict.

If the sentence after trial and conviction were the same as the sentence after a plea, there would be no reason for even a grossly guilty defendant not to “roll the dice” and hope to get lucky at trial, or at worst to defer the day of reckoning. So there has to be an inducement to plead guilty, in the form a more lenient sentence. That’s just the logic of the situation.

But that leaves open the key question: “more lenient” compared to what? Imagine that a prosecutor had in mind the appropriate sentence for some course of criminal conduct, all things considered. Is the plea bargain offered a discount from that ideally just sentence? Or, instead, is the just sentence offered as the bargain, with an unduly Draconian sentence (perhaps reflected in overcharging the case) held out as a threat if the defendant exercises what is, again, a Constitutional right?

Of course, since no one knows what the Platonically just sentence would be, there’s no obvious way to answer that question. But – in the absence of any check on the prosecutor’s discretion other than office policy – the temptation to use the threat to over-charge as a bargaining tool is ever-present.

Moreover, the insanely long sentences now routinely handed out in federal drug cases (which are about half of all federal cases) have, in my view, distorted the whole scale of values. Compared to the 10-year mandatory faced by a minor player in a one-kilo ($20,000) cocaine deal, even the multi-year term McDonnell is likely to draw hardly seems excessive. But that relative consideration doesn’t make his sentence any more reasonable on an absolute scale. What is the additional public value from having him behind bars for seven years rather than, say, two?  (I don’t know how to do the Guideline calculation, but my guess is he’s looking at more than seven.)

In this case, all the prosecutors wanted was a guilty plea from the Governor. In other cases, they’re looking for more than a plea: they want “cooperation” against other defendants. Again, there’s a conceptual distinction between an offer of lenity in return for testimony and the threat of excessive harshness as a punishment for silence, but that’s not a distinction easily made in practice, and all the temptation is on the side of the excessive threat.

But my concern about bargaining for testimony goes much deeper than that. For a private party to litigation, offering a witness any material incentive for testifying – even for testifying truthfully – is a felony. So is threatening a witness to force him to testify: again, even if the resulting testimony is truthful. Only prosecutors are allowed to bribe witnesses (with the promise of lenity) and threaten them (with excessive sentences), with complete impunity.

There’s something wrong here. Why should a jury give any credence to such suborned or coerced testimony? Prosecutors reply that they’re careful to make sure that whatever the cooperating witness says can be independently verified, but what that means is just that the investigators and the prosecutor vouch for it. The testimony itself is obviously worthless, and the accompanying assertion that the witness hasn’t been offered anything is the flimsiest kind of legal fiction. I’m sure there’s a distinction in principle between testimony extracted under threat of the rack and testimony extracted under threat of fifteen years in a nasty prison, but that distinction must be such a subtle one that you need three years in law school to grasp it. To the rest of us peasants they look like pretty much the same animal.

But even coerced and induced testimony isn’t as morally disgusting as the practice of using threats to third parties – especially wives, girlfriends, children, parents, and siblings – to coerce guilty pleas. At the federal level, the routine use of that technique seems to go back to the early days of the Organized Crime Strike Forces. The history of the successful war on the Mafia started by Robert F. Kennedy as Attorney General and fought with diligence and creativity by prosecutors and investigators over the next thirty years has, so far as I know, yet to be written. It’s in many ways an inspiring story. The Mafia, with its open defiance of the law and its deep connections to political and economic power, represented an extraordinary threat and challenge, and extraordinary means were, in my view, justified in fighting back. (Consider the fact that the makers of the Godfather movie series needed to get permission to make it from the Mafia bosses who still controlled Las Vegas in the early 1970s.)

But of course the problem with extraordinary means is that they don’t stay extraordinary. Perhaps – though I doubt it – the practice of threatening intimates might have been justified by the need to break the power of the Gambinos and their ilk. But the McDonnell case – a rather routine piece of a politician’s greed - presented no such justification. By now, however, the use of such threats is now accepted as a normal item in the prosecutor’s toolkit.

An old legal adage I heard repeated more than once when I worked in the Criminal Division at DoJ holds that “The government carries its case when justice is done.” It seems to me that the current generation of prosecutors could usefully meditate on the truth of that maxim.

[Cross-posted at The Reality-Based Community]

Mark Kleiman

Mark Kleiman is a professor of public policy at the New York University Marron Institute.