Archive for the ‘Plea Bargains’ Category

Why Prison?

Thursday, April 14th, 2016

Yesterday, I was raptly following the sentencing of Matthew Keys as it was live-tweeted by Sarah Jeong. If you haven’t read the dozens of articles about it today, the short story is Mr. Keys was sentenced to 2 years in federal prison, for sharing his login info online — info that another person then used to change one page of the Los Angeles Times website, until an editor spotted the vandalism and changed it back about 40 minutes later.

That’s right, he will lose two years of his life for sharing his login info with someone else.

I’ve written before on the insanity of the law he’s said to have violated — the Computer Fraud and Abuse Act — a law that is so vague and overbroad that I am certain every person reading this has probably violated it by now. Or can be said to have violated it by a federal prosecutor with nothing better to do. Which in the case of this law is the same thing. But this time I’m not here to rage against overcriminalization, incautious drafting of criminal legislation, or the abuse of prosecutorial discretion in choosing to charge people with offenses that nobody in their right mind thinks of as crime.

I’m here because, two years? Seriously?

The criminal justice system has a very limited toolbox. If someone has committed a crime, they get punished. That’s it. Punishment is harsh. It’s the almighty State asserting its control over your body, your life, and your stuff. No matter what the punishment is, the State is grabbing you and doing something nasty to you.

Sometimes the punishment can be light — “go forth and sin no more, but if you do you’re in worse trouble.” Or a fine. That makes sense. Most people aren’t criminals. We don’t have to worry that they’re going to violate the law again. They’re traumatized enough by the fact that they were arrested and churned through the machine of criminal justice — they’re never going to see the inside of a courtroom again, if they can help it. The supervisory forms of this “light” punishment can vary in the severity of supervision. In a consent decree or a conditional discharge or an adjournment in contemplation of dismissal or what have you, it’s basically “don’t get in trouble for a year, but if you do….” With a drug program, it could be “go to treatment, kick the habit, and get your life in order. Oh, and don’t get in trouble again.” Then there’s probation, which technically means “prove we can trust you not to get in trouble again.” Probation usually carries lots of conditions that limit your liberty and freedom to varying degrees. Depending on how intensive your supervision, it could range from showing up at the probation office to sign in and leave once a month, to random unannounced home invasions and crazy-strict limitations on what you’re allowed to do and where you’re allowed to be and who you’re allowed to hang out with. But at least you’re still walking around.

Prison, on the other hand, is a complete theft of your liberty. Your life is taken away from you. Your job is gone, so’s your home, probably (you’re not paying that mortgage any more), your family can’t see you except under the most limited and difficult conditions, and of course you yourself are caged up under armed guard for the next X years of your life. Maybe the rest of it. If you get out, unless you’re very lucky, your life as you knew it is still over. You’ll have to find another career, probably. One you’re not trained for. One that doesn’t mind if you’ve done time. Kind of a limited selection. You’ll probably be on parole or post-release supervision even after you get out, which is like probation to prove you deserve to be on the outside (and if you screw up, back in you go). God forbid you peed in an alley and got stuck on a sex offender registry as well.

Prison is literally stealing years from your life, and ruining the ones you have left.

And it’s the default penalty for many prosecutors. Especially federal prosecutors. Especially those who lack the perspective, understanding, and wisdom we demand of them in return for the boundless discretion we’ve granted them. Especially those who have gotten so used to throwing numbers around that they’ve forgotten the meaning of what they’re even doing.

This guy Matthew Keys, for example. The feds literally asked the judge to put him in prison for 5 years, because he shared his logon info. They sincerely and honestly argued that this was the right and just penalty for a crime that (1) is only a crime because they said so, and (2) didn’t hurt anyone. (The loss calculation was basically the newspaper’s cost of fixing their own internal security issues that let this happen. If you can even call that harm.) The judge gave him 2 years, apparently following the time-tested tradition of judges “splitting the baby” when they can’t think of a principled reason for imposing a particular punishment.

Even if you believe what Matthew Keys did was so bad that it deserves to be a crime, so bad that it deserves to be punished by the almighty State, nobody with an ounce of perspective can believe that the right thing to do is take away the next two years of the guy’s life, and ruin the rest of it.

But that’s what we do hundreds of times a day. He’s no exception. He’s the rule.

 – – – – –

Keep in mind that prison wasn’t always the default punishment, like it is now.

Back in the day, you got locked up until sentencing. To make sure you’d still be around for trial and punishment. Your imprisonment wasn’t your punishment. Punishment for most crimes consisted of a fine. The State took away your stuff. For the most severe crimes, there was corporal punishment — the stocks, the lash, the noose. And that was that.

Prison is what we started doing when we decided to get civilized. It let us use numbers to carefully balance the weight of your crime with the severity of the punishment it deserved. Instead of harshly whipping your bloody back, we could do the civilized thing, decide this crime was worth 90 days of jail, and tada!

Conceptually, this works fine if you think of the purpose of punishment as “an eye for an eye.” That’s retribution — long considered the civilized approach. (Unlike retaliation, which lets me cut off your head because you cut off my toe, retribution is all about being proportionate.)

But problems start when you begin trying out newer kinds of civility. What if punishment is now intended for deterrence, perhaps? Making sure this guy never wants to commit that crime again? Making sure everyone else thinks twice before doing it? Well, hell. We gave that guy 90 days for stealing, and people are still stealing. Better make it a year. Hell, that’s not working, better make it two. Five? At least the public likes it and we’re getting re-elected. Looking tough on crime’s not bad. It’s not as if it’s hurting anyone who matters.

Or most civilized of all: punishment is for rehabilitation? Look, we gave you a year to mend your ways the first time. Gave you three years the second time. You’ve done it again? Three strikes, buddy — you’re out. We’ll keep you in there until you’re cured, but you’re uncurable, so here’s a life sentence. (There’s also a bit of “removal” there — we can’t trust you to walk our streets, so off the streets you go. But rehabilitation is the best argument for a sentence with no fixed end date — you can’t get out until we say you’re no longer a threat. It has nothing to do with the innate justice of proportionality.)

 – – – – –

It’s all gone wrong.

In fact, I’m willing to bet money that if we conducted a rigorous survey of Americans right now, and asked them if they’d rather get X years in prison or Y lashes and go home, they’d take corporal punishment by a large margin. The brutal and uncivilized penalty would be greatly preferable to the cruelty of our civilized imprisonment.

The blame lies with the politicians who ratchet up the penalties, with the prosecutors who’ve lost sight of what they’re doing, and the judges who go along with it.

And with you and me. For not stopping it in its tracks. And for not shouting loud enough — as is proven every day with sentences like that of poor Matthew Keys — to put and end to it now.

Next time you make an offer, consider a sentencing argument, or read of a sentence in the papers, take a moment and ask yourself: why prison?


Statistical ranking of defense lawyers? Maybe, but not this way.

Wednesday, January 2nd, 2013

It’s an intriguing notion: that one can objectively assess the relative effectiveness of a given lawyer. With hard data, and sound analysis. In the real world, it’s nigh impossible to tell how good a lawyer really is. You can look on Avvo and see what people here and there may have subjectively thought about him, but that doesn’t tell you whether any other lawyer would have done as well (or been just as dissatisfying). You can ask around and get a sense of what other lawyers generally think of him, but that’s just as subjective. There’s really nothing out there to tell you for sure whether that lawyer gets better-than-average results or not.

So Wake Forest professors Ronald Wright and Ralph Peeples — to their great credit — tried to see if it could be done. In their recent paper, “Criminal Defense Lawyer Moneyball: A Demonstration Project,” they conclude that it can be done. They may even be right about that. But not from the data they gathered, sadly.

[Warning: The internet’s gonna (more…)

Deterrence has nothing to do with it.

Thursday, December 20th, 2012

Interesting concurring opinion by Posner the other day in U.S. v. Craig. Basically, the defendant pled to four counts of creating child porn — which he created in an awful and horrifying way. He could have gotten 30 years for each count, but the judge gave him 50 (30 on one count, 20 on the other three). The defendant appealed the sentence. But it was within the Guidelines, and so was presumptively reasonable. And the judge didn’t ignore any mitigating factors. So the appeal was meritless and denied. A shocking sentence for a shocking crime, but hardly a shocking decision.

True to form, however, Posner went out of his way to make an economic evaluation of the sentence. What was it good for? Did tacking on the extra 20 years make any sense? Posner says no, and argues that judges need to take such things into account in the future when imposing sentences.

He engages in a straightforward cost-benefit analysis. The cost to society? $30K a year now, more than double that as the prisoner grows old and requires medical care. Plus the lost productivity of the man being incarcerated. The benefit? For that he looks to the purposes of punishment. But not all of them.

He only considers (more…)

Better Criminal Lawyering through Smart Risk-Taking

Wednesday, March 28th, 2012

Judgment is the criminal lawyer’s stock-in-trade. The ability to assess the risks of a situation, and choose the better course of action, is the value that lawyers bring to the criminal justice system. It doesn’t matter if they’re defense attorneys negotiating a deal or fighting it out at trial, or if they’re prosecutors deciding whether and what to charge — their value is their judgment. The better the judgment, the better the lawyer.

It’s therefore critical that criminal lawyers have some understanding of how and why people take risks. In advising a client inclined to take a bad risk, the lawyer can’t really change that perception without knowing what’s causing it. And such an understanding also helps one spot one’s own inclinations to error before it’s too late.

This is not common sense. (In fact, common sense is usually the enemy here.) It’s insight. The ability to see how people act, and realize — aha! — why.

Fortunately for the rest of us, there are amazingly smart people out there who do that all day. When you find one with real insights about why people take the risks they do, you’re probably gonna want to listen.

That’s why we’re taking a moment to point you to Danny Kahneman (that’s his picture up there).

Who is Danny Kahneman, you ask. You’re not alone. If you’re not an economist, you can be forgiven for not knowing he won the Nobel Prize for basically inventing the field of Behavioral Economics. If you’re not a psychologist, you can be forgiven for not knowing he’s considered “one of the most influential psychologists in history, and certainly the most important psychologist alive today.” If you’re not a foreign-policy wonk, you can be forgiven for not knowing of his significant ideas on the evaluation of risks in wartime. He’s one of the most insightful and relevant people nobody’s ever heard of.

As it happens, a lot of his insights are directly relevant to the practice of criminal law. Trying to decide the likely outcome of that trial? You’re probably (more…)

When Is It Unfair to Get a Fair Trial?

Monday, October 31st, 2011


“You are saying it was unfair to have a fair trial?”

That was a fair question put by Justice Kennedy at oral argument today. The issue is whether a criminal defendant can be deprived of the effective assistance of counsel (for Sixth Amendment purposes) when a lawyer screwup prevents him from taking a plea deal.

The issue was presented in two companion cases, Lafler v Cooper and Missouri v. Frye. In Lafler, defense counsel gave bad advice, so that the defendant rejected a plea offer and went to trial instead. In Frye, the defendant did take a plea, but an earlier more favorable offer had never been conveyed.

Everyone accepts as given that the lawyers in these cases screwed up big time. The issue is only whether the screwups were so deficient as to rise to a constitutional violation.

Defendants do not have a right to a plea bargain, of course. The Supreme Court has spoken pretty firmly on that one. The plea bargain is, however, almost universally lauded — it allows defendants to cut their losses, prosecutors and courts to free up resources, and gives the system a chance to impose a “more fair” penalty than that which the legislature would otherwise have imposed. Plea bargains are wonderful. But there is no constitutional right to them.

Given that, the layman might be forgiven for scratching his head and wondering why these two cases were granted cert in the first place. (Laymen do that, you know.) There was no constitutional right being deprived, and there’s no doubt about the reliability of the conviction, so how could there possibly be ineffective assistance here?

That’s pretty much what the government argues — that there’s no prejudice, so there’s no Strickland problem. Being convicted after a fair trial is not prejudicial. Voluntarily taking a guilty plea is not prejudicial. The mere fact that a less harsh sentence could have been gotten with a better lawyer may perhaps be a pity, but it is not prejudicial. A do-over ought to be out of the question.

But Padilla held that ineffective assistance applies to the plea bargaining stage, that failure to advise as to immigration consequences can require just such a do-over. So the defendants argue that what was prejudiced was the outcome of the plea process itself, and not the outcome of the case. The issue for them is not whether the defendant would have been convicted or not, but whether ineffective assistance deprived them of the opportunity to get a better deal.

Both defendants argue that the correct fix would be to give them a chance to accept the earlier offer that, but for their lawyers’ failing, they would have accepted in the first place.


There is a fear that, if the defendants win, there will be a rash of appeals claiming that prior plea offers hadn’t been conveyed, or had been rejected for stupid reasons. Who wouldn’t want to take advantage of a chance to cut their 10-year sentence down to the 2-year offer that was originally rejected? How easy is it to claim that a lawyer told you something stupid, or didn’t tell you anything at all, especially as those discussions aren’t typically recorded or transcribed — it’s a he-said-she-said at worst, and who knows what lawyers might not be persuaded to bend the truth and swear out an affidavit substantiating the defendant’s claim?

One might also fear that, given this safety valve, defendants would be more likely to take cases all the way to trial, on the off chance that they win, knowing that if all else fails they can just go back to their saved game from the plea levels. That would sort of undermine the courts’ stake in plea bargaining, clogging the courts rather than freeing them up.

These are policy issues that may well be persuasive to the justices. Not law issues, so much as practicalities.


But what did the justices actually say today? That might give a (more…)

Answering Your Most Pressing Questions

Saturday, July 16th, 2011
Real nice, Google.

Because we were bored out of our skull this afternoon, we checked this blog’s stats on Google Analytics.  Browsing through the various keywords people have used to find this blog over the past year, all we can say is “The hell is wrong with you people?”

Leaving aside the freaks and weirdos (and possibly some of their clients), however, it seems that most people find this blog by asking Google the same handful of questions.  The number one search engine query that get people here, every month this year, is something along the lines of “why become a lawyer.”  Number two includes variations on a theme of “can a cop lie about whether he’s a cop.”  The top five are rounded out by queries about what crimes Goldman Sachs may have committed, connections between Adam Smith and insider trading, and what one should say to a judge at sentencing.

We’re not sure that we’ve actually discussed all of these topics here.  Then again, we might have, and just forgot it (which is a distinct possibility — these posts are all written in a single pass, without any real editing, and usually are not given another thought once they’re posted.  If you ever wondered what “ephemera” meant, you’re looking at it right now.)

Still, in the interests of alleviating our boredom public service, here are some quick answers to our readers’ most pressing questions:

1. Why Should You Become a Lawyer?

Because you feel a calling to serve others.  Because you want to make a difference in the lives of others.  Because you are genuinely interested in the rules by which human society functions, why people behave the way they do, and the policies and interests underlying it all.  If those are your reasons, then you belong.

Not because you want to (more…)

A Tactical Wheel for the Defense?

Sunday, November 28th, 2010

Every defense attorney has their own favorite metaphor for what we do.  Some talk of it like a street fight, envisioning a slugfest with the cops or the court or DA (or all three).  Others speak as if it’s a poker game (with the other side usually holding all the aces).  Occasionally, we even hear chess analogies.  Well, for whatever reason, we tend to think in fencing terms.

On the one hand, this makes little sense, as we haven’t fenced much since our kids started coming along.  (Literally.  Our wife went into labor with the first one right in the middle of us getting trounced by some French guy in an épée tournament.)  But on the other hand, we do find the analogy extremely useful.

Like fencing, much of what we do is reactive.  There’s something they teach fencers called the “tactical wheel” which starts off with a simple attack, which gets countered by a parry and riposte, which gets countered by a feint, which gets countered by a counterattack into the feint, and so on until you’re reacting with a simple attack.  You’re always reacting to what your opponent did, and trying to use your reaction to score off him instead.  That’s pretty much what we do.

Note that each reaction is not merely a defensive parry.  If all you’re doing is deflecting attacks, you can never win.  Eventually, one of them’s going to get through.  Every defensive action is an attack of some sort.  You win by taking the game to the other guy.  You go on the offense.  Make the other side react to you.  The best defense, as always, is a good offense.

And as in fencing, you pretty much have to take your opponent as you find him.  Different tactics are going to work with different situations.  It’s nice to know what works when.

That whole “tactical wheel” thing only really works, of course, if both you and your opponent are of intermediate skill.  A novice doesn’t always do the smart thing, which throws such rote tactics into disarray.  An expert, with a zen-like empty mind, is not hindered by the rule of thumb, and is free to react to this particular action in the most effective way.  Still, there is something to be said for a rule of thumb.  When all else fails, you have something to fall back on, which at the very least assures you of a solid, workmanlike job.  It may not be elegant, but the odds are safe.  And with the vast majority of opponents, it’s going to be all you need.

So what would such a tactical wheel look like for criminal defense?

It’s not going to be as (more…)

“This offer is only good today.”

Thursday, September 30th, 2010

Another good post by Mark Bennett today over at his blog “Defending People,” entitled “Today Only?”  He recounts the plea-bargaining tactic some prosecutors use, attempting to force a plea by saying the offer is only good that one day, and won’t be offered again.

Did the words mean what they purported to, or was this just part of the ritual?  Put in practical terms, what does the criminal defense lawyer tell his client when the client asks if he can have some time to think about the plea offer?

Chances are good that the same factors that led the prosecutor to make the offer today will still exist when the case comes back to court….  There might be a reason that making the same offer at the next setting would interfere with these goals (chief isn’t here today, will be then and will nix the deal; case at a point where ADA has to get it pled or do some actual work).  If so, the prosecutor will generally identify the reason; the defense lawyer then has to decide whether the prosecutor’s assessment is correct, or whether the plea offer is likely to remain the same (or, as usually happens, get better).  Without a plausible reason for the offer to get worse, though, “today only” in the courtroom means what it means in the bazaar: it’s part of the ritual.

Over at Simple Justice, Scott Greenfield added that

Negotiating pleas isn’t for the squeamish, and if someone can bulldoze you into a plea by using the “today only” ploy, chances are you don’t have the guts for this work.  On the other hand, know your adversary, including the judge.  With some people, “today only” means exactly that, and they will cut off their nose to spite their face just to keep their word.

It’s not a job for the gutless, but better to know up front whether the person making the pitch is going to live with the consequences.  If you don’t know, it will be your client living with the consequences, whether they want to or not.

In my* experience, a “today only” ultimatum is a sign of either resignation or desperation.  It’s made in the hope that it will be taken, and the case will go away.  Maybe the prosecutor is just sick of it and doesn’t want to spend more time on it, or maybe the prosecutor is afraid of having to go to trial on it.  It’s rarely made out of sheer altruism.

The kind of prosecutor who would make a “today only” offer is usually the kind who will drop down from the offer again later on.  Backsliding is a real possibility next time, the time after that, and on the eve of (more…)

Prosecutorial Extortion

Monday, June 7th, 2010


Extortion is a kind of threat.  A threat that’s so bad, it’s criminal.  For a threat to be criminal extortion, it needs to be of a kind to make someone do something against his will, that’s adverse to his own interests.

Threatening to kill a child if the parents don’t give you money, for example, would be extortion.  So too would be a civil lawyer’s threat to file criminal charges — even if such charges are warranted — if the other side doesn’t pony up with a settlement.  Another example is when a government official threatens to use his position to do something he’s perfectly entitled to do in the first place, unless the victim does him a favor first.

There are lots of examples of extortionate behavior.  But these last two examples demonstrate that the threatened action doesn’t itself have to be against the law.  The civil lawyer could go ahead and press criminal charges, but threatening to do so is against the law.  Ditto for the government official whose threat to merely do his job is a crime.  The point isn’t whether the threatened action is itself criminal, but whether the threat causes such fear as to override someone’s free will.

This is basic stuff.  Not exactly cutting-edge law here.

So how come nobody seems to have litigated the Queens (New York) District Attorney’s practice of extorting speedy trial waivers from defendants?


In New York, there are a few different kinds of (more…)

Federal Sentencing: A Long Way to Go

Tuesday, May 25th, 2010


Tonight, we attended a panel discussion on federal sentencing that was actually worth commenting on. Usually, these things are either so basic or insubstantial as to be a waste of time. But this one had a few choice moments we’d thought we’d share with our readers.

The panelists included John Conyers (Chairman of the House judiciary committee), William Sessions (Chair of the U.S. Sentencing Commission and Chief Judge of the District of Vermont), Jonathan Wroblewski (policy director for the DOJ, among other things), Alan Vinegrad (former US Atty for the EDNY and now a white-collar partner at Covington), Tony Ricco (mainstay of the federal defense bar), and Rachel Barkow (NYU professor, didn’t speak much). It was moderated by Judge John Gleeson of the EDNY, and we recognized in the standing-room-only audience a number of distinguished jurists and counsel.

Everyone seems to agree that the Guidelines are in need of a major overhaul. As Judge Gleeson put it, “when even the prosecutors are saying that sentences are too severe… the sentences are too severe.”

But not everyone agrees on what changes ought to be made, how drastic the changes ought to be, or even what’s causing the problems in federal sentencing.

Here’s the take-away: Everyone knows what the right thing to do is. Judges want to do the right thing, regardless of what the Guidelines say. The DOJ forces its prosecutors to do what the Guidelines say, regardless of what they think is just. Congress is incapable of doing the right thing, in its efforts to pander and blame rather than solve. And the Sentencing Commission is afraid to be independent of Congress, preferring instead to make baby steps toward eventually maybe doing the right thing.


“Unnecessary cruelty”

For as long as we’ve been practicing law, everyone has been complaining bitterly about (more…)

It’s the Culture, Not the Caseloads

Tuesday, April 13th, 2010


The past couple of weeks, there’s been some discussion about a recent paper by Adam Gershowitz and Laura Killinger called “The State (Never) Rests: How Excessive Prosecutor Caseloads Harm Criminal Defendants”.

The authors argue that prosecutors in large jurisdictions often have “excessive” caseloads, so they don’t have enough time and resources to devote to each case. And injustice results. Rushed and overwhelmed, they fail to spot cases deserving special treatment, such as more lenient pleas or drug-court diversion. They don’t notice Brady evidence favorable to the defense. Weak cases don’t get dismissed. Jammed up caseloads cause delays that make defendants take pleas to time served, just to get out of jail. Nobody has the time to spot innocent people, who wind up getting convicted in the rush.

One of the better posts was by Scott Greenfield yesterday at his blog Simple Justice, where he makes the point that delay is actually a good thing for the defense, thanks to speedy-trial rules. More importantly, he points out that prosecutors actually have the discretion to do what it takes to make their caseloads more manageable. To get rid of cases, they can offer lower pleas, dismiss them, do an ACD/DP, what have you. There are easy options to put a case on hold while investigating whether a defendant is deserving of special treatment.

But we haven’t seen anyone yet make the blazingly obvious point that prosecutors aren’t likely to do any of that if the defense attorney doesn’t bring it up, first.

So we’re going to say it now. We defense attorneys can’t just sit there and hope that the prosecutor does the right thing. We actually have to get off our butts and make a case. Good defense lawyers know this, and much of their advocacy involves convincing the prosecutors to exercise their discretion in the client’s favor. Even the best prosecutor only knows what’s in front of him. He’s made up his mind about what this case is worth, based on the evidence he has. The only way to get him to change his mind is to give him new facts, or a new way to look at the facts.

So if a client might be innocent, and the prosecutor doesn’t realize it, then the defense attorney’s job is to bust his ass to make sure the prosecutor figures it out. Ditto for clients who really deserve a lighter-than-usual sentence, or a creative sentence, or treatment instead of jail. This has nothing to do with prosecutor caseloads, and everything to do with defense counsel. Sorry, but it’s the truth.

Beyond that, we still don’t see much cause-and-effect between prosecutor caseloads and the problems decried by the paper’s authors. That’s just not the problem here. And lowering caseloads or increasing resources won’t fix the real problems.

The best prosecutors do try to screen out the innocent, the weak cases, the special cases. Oddly enough, they are pretty common in some offices with the heaviest caseloads. The worst prosecutors don’t seem to want to exercise their discretion at all, or even recognize that they have been given it for a reason. And they’re common enough in offices with hardly any caseload to speak of. In our experience, prosecutor caseloads have zero effect here. The quality of the individual prosecutor, and the culture of their office, has everything to do with it.

So the trick is to get better, not more, prosecutors. How do you do that?

You don’t really need to pay them more. It’s a government job, so it (more…)

On Deportation and Duty

Thursday, April 1st, 2010


Yesterday, the Supreme Court ruled that defense lawyers must advise their immigrant clients that, if they plead guilty, they could get deported. (Read the opinion here, and you can read more about the case here and here.) In a nutshell, Jose Padilla took a plea to selling drugs, and his lawyer told him not to worry about deportation since he’d been a lawful permanent resident for 40 years. That was erroneous advice. Kentucky wouldn’t let Padilla get his plea back, saying this error was about a collateral consequence outside the criminal justice system, so it wasn’t ineffective assistance for Sixth Amendment purposes. The Supreme Court disagreed, saying it absolutely was ineffective assistance. Defense lawyers are duty-bound, as a constitutional matter, to let clients know that pleading guilty could get them deported.

Note that this burden is on the defense counsel, and not on the court. The court does have to advise defendants that they’re giving up their right to a jury trial and all the other things they’re foregoing, but the court doesn’t have to warn about “collateral” consequences of the plea. And deportation is one of a myriad of potential collateral consequences, including losing a driver’s license, or the right to vote, or the ability to hold a particular job, or government benefits. (There are entire books dedicated to listing and describing all the collateral consequences out there.)

But deportation is different. It’s a dramatic life-changer, often more so than incarceration. It affects the now-banished immigrant, but also his family. So somebody ought to mention it to a defendant before he takes a plea and effectively deports himself.

For that reason, since the days of disco the ABA has had standards of conduct for defense lawyers, requiring us to inform our clients fully and accurately about what consequences they might face. See ACA Standards for Criminal Justice, 14-3.2 Comment 75. Some, but not all, states also require it by law. And some states even require judges to do it from the bench as part of the plea colloquy.

But now the Supreme Court has ruled that, as a matter of constitutional law, failure to inform an alien of the risk of deportation is ineffective assistance of counsel. It violates the Sixth Amendment. So the client can take back his plea and go to trial instead.

Great for clients, some defense lawyers may be huffing, but not for us. Now what, are we supposed to master a whole nother specialty of law, and a notoriously byzantine one at that, just so we can do a constitutionally effective job? That would suck!


Well no, the rule doesn’t suck. We do not have to all of a sudden become experts in immigration law. We do not have to parse the insanities and inanities of that highly complex field. All we have to do is advise our clients that there is a risk of deportation. And we’d better not tell them there is no risk, when there really could be one.

This really is nothing new. It’s what we’re supposed to have been doing all along. For example, look at (more…)

What Not to Say at Sentencing

Wednesday, March 10th, 2010
Monica Conyers arriving at court for sentencing

Monica Conyers arriving at court for sentencing

Former Detroit councilwoman Monica Conyers, the wife of U.S. Representative John Conyers, was sentenced today in federal court on her guilty plea to charges of bribery. The 45-year-old was given 37 months in prison, the top end of the agreed-upon Guidelines range.

Having read the sentencing minutes, we can’t help but think she might have done better if she’d kept her mouth shut. There are some things one does not say during one’s sentencing. She seems not to have gotten the memo, and it may be that others out there don’t know either. So here are some tips:

First, do not imply that the judge is acting improperly, before the judge has even sentenced you. Don’t even hint that the judge is taking things into account that he should not be. For example, it is not a good idea to say “the newspapers have put pressure on you to try to make an example out of me.” Judges do not like to be told they’re committing an impropriety. You do not want to piss off the person who is about to decide your fate.

Seriously, people need to be told this?

Second, do not say it’s unfair that you’re going to jail, when the other people committing crimes with you got less time. If you’ve pled to taking bribes (Conyers admitted taking multiple payments in return for awarding a contract), it doesn’t matter what happened to anybody else. The only consideration is what you did, and what you deserve. So saying “all of the people who were bribing and giving the money, they got zero months, eleven months, and now they want me to go to jail for five years?” — that’s not really going to help you out. All you’re doing is calling the judge unfair to his face. And it’s irrelevant at best.

That leads right to point 3: If you’ve just got done saying you should get the same time as your fellow conspirators, it’s not a good idea to then insist that you’re innocent and your plea was involuntary. Arguing in the alternative, at least in criminal cases, only means both alternatives are wrong. Pick a story and stick with it.

Point 3-A is that you don’t react to sentencing by demanding your (more…)

Conviction Rates Matter

Tuesday, December 15th, 2009


On Sunday, the Philadelphia Inquirer published a lengthy article on that city’s abysmal conviction rate for violent crimes. For every three violent-crime arrests in Philadelphia, only one results in a conviction. There are a lot of worse-sounding statistics in that article, but they’re completely meaningless, as they refer only to convictions of the top count, ignoring the reality of plea bargaining. Still, this meaningful stat, the one-in-three conviction rate, is appalling.

Worse than that, about ten thousand violent arrestees walked, no conviction at all, in 2006 and 2007. Only 8% of that number were found “not guilty” after trial. The remaining 92% walked after their cases were dropped or dismissed.

At the same time, FBI stats show that Philadelphia has the highest violent-crime rate of all the big cities.

Coincidence? Of course not.

Violent-crime defendants aren’t getting convicted, and violent crimes are through the roof. There is causation there.

Conviction rates matter. A low conviction rate means the system is broken. If it was working, the rate would be 70% or higher. 33% = broken. Broken means people are being prosecuted for crimes when they shouldn’t have been charged in the first place. Broken means people aren’t getting punished for their violent crimes. And society suffers both ways.

We blame the prosecutors. More on that in a bit.


The Philadelphia courts have created a public perception that violent crime will not be punished. The odds of getting convicted are minor, and the odds of taking a felony are even lower. It doesn’t take too long for people to figure that out. And the bulk of crimes are committed by people who have frequent contacts with the criminal justice system. This critical demographic repeatedly experiences that the odds are in their favor. The system keeps reinforcing this perception that, if you commit a violent crime, you’ll probably get away with it.

Perception is everything in this system. In order to prevent crimes from happening, our system relies heavily on the deterrent effect of punishment. Deterrence is important. It doesn’t affect crimes of passion in the heat of the moment, but most crimes involve some planning or forethought, and those are the ones we want to make people think twice before committing. Whether they think twice or not depends on what they think might happen.

If people generally believe that a criminal act will probably result in punishment, then they will generally avoid that behavior. This would be true even if such acts were never actually punished (think of the budget savings, increased productivity, and human value society could preserve if we could devise such a system!). And the converse is true — if every criminal act got punished, but nobody realized it, then all that punishment would have zero deterrent effect.

In general, our system tends to fall somewhere between the two extremes. There is an amorphous sense that people can get caught, and that most of those who do get caught wind up getting punished. This perception results in a general background level of deterrence that’s meaningful.

Most law-abiding folks add a huge layer of deterrence on top of that, arising from the morals and ethics ingrained during their socialization and upbringing. But those folks aren’t the ones the criminal law really cares about. The law isn’t designed to deter them; it’s designed to deter those who would gladly commit such crimes if they didn’t they’d get punished.

Such people come from all walks of life. Sure, there are plenty of thugs from anarchic streets, who couldn’t care less about their victims or the rules. But there are also the spoiled suits who are just the same, caring nothing for their victims and thinking the rules don’t apply to them. For every crime, there are opportunists of every stripe.

And if the system fails to create the right perceptions, opportunists are going to take advantage of the perceived opportunities… obviously.

And that’s what’s happening in Philadelphia, it seems.


How did it happen? The Inquirer has 6 ideas. We think one or two might even be worth considering.

1) First, the Inquirer says that witness intimidation is working. Witnesses and their families are known to get killed in that city. That scares potential witnesses, who decline to come forward. So cases can’t be proven, and get dismissed or result in minimal plea bargains.

The way we see it, the number of such instances is vanishingly small, but the visceral significance of such instances is dramatic, and so the statistics have a lot more weight than they perhaps deserve.

Regardless, we still have a major problem with this explanation: What are the prosecutors thinking? If you don’t have your witnesses lined up, if you are not in a position to prove your case at trial, you have no business filing charges in the first place. You investigate before charging someone with a crime, not after. It is this blog’s position that any prosecutor who files charges before being able to prove them beyond a reasonable doubt is committing misconduct. The better prosecutors’ offices don’t allow such behavior.

But if the Philly prosecutors are having to get rid of cases because they couldn’t round up any witnesses, that means they were charging these cases prematurely and unethically.

So this “witness intimidation” excuse is really nothing more than a symptom of a deeper problem — that the Philly prosecutors are jumping the gun, and then having to deal with the consequences. And the result of their behavior is a public perception that violent criminals can get away with it. Well done, that DA.

2) The caseload is too high. The judges are too busy, says the Inquirer, so they “put a premium on disposing cases” rather than going to trial.

That’s just nonsense, of course. The vast majority of cases everywhere are disposed of before trial. It’s not the judges who make it happen, either. Defendants agree to plea bargains that cut their losses. Prosecutors agree to plea bargains that result in a fair sentence. And both sides avoid the enormous uncertainty, expense and risks of going to trial.

Plea bargaining does not begin to explain how two-thirds of violent arrestees don’t wind up getting convicted, nor does it explain a public perception that violent criminals are probably going to get away with it.

3) The Inquirer points to the statistic that nearly 10,000 violent-crime defendants had their cases dropped or dismissed in ’06 and ’07.

Again, this means to us that the finger must be pointed squarely at the DA’s office. What the heck are they doing, charging 10,000 people with crimes they couldn’t prove? Cases get dropped or dismissed because they shouldn’t have been charged in the first place. This statistic shows an appalling lack of judgment on the part of the Philly prosecutors.

What are they doing, just charging everyone who got arrested? Perhaps. It’s a sad fact that there are some DA’s offices out there who think it’s their job to zealously advocate for the conviction of everyone who got arrested. But of course that is not only not their job, it’s unethical for them to behave that way.

Prosecutors are given enormous power and discretion, and it is an abuse of that discretion not to exercise it in the first place. They’re supposed to first figure out whether the case should and could be prosecuted, before wasting time and treasure on a pointless case, and dragging people through a horrific process. And they’re certainly not supposed to delegate their discretion to the police, who have neither the authority nor the purpose to exercise it. But those DA’s offices that simply take on every arrest are doing precisely that.

Maybe instead they’re just charging people without proof, in the hopes of getting a plea bargain, and hope nobody calls their bluff. That’s nothing short of criminal extortion, if true.

It should be nigh impossible to dismiss a case, unless there is newly-discovered evidence, or the interests of justice demand mercy. Otherwise, there ought to have been enough evidence to take the case to trial before charges were ever filed. This staggering statistic demonstrates that the DA’s office is charging thousands of people with crimes, when they had no business doing so.

4) The Inquirer says the DA’s office doesn’t track how well or how poorly its cases fare, and as a result cannot prioritize the work of its 300 prosecutors.

That’s sort of irrelevant, really. 300 prosecutors is plenty. The Manhattan DA handles way more cases, and better, with not many more ADAs.

And prioritizing who’s working on what isn’t really something the stats ought to affect. A significant number of losses and dismissals are an indicator that a particular prosecutor might need to be reassigned, but wins and losses don’t affect where you focus your manpower. It’s really just a supply-and-demand thing — put the bodies where they’re needed, that’s all.

5) Philadelphia’s courts are uncoordinated. The basic logistics of getting the parties and witnesses together for trial becomes a disorganized fustercluck of delay. Eventually, cases just collapse because they can never be brought to trial. Defense attorneys know this, and take advantage of it.

We can’t speak to how things work in Philly, having never practiced there. But this doesn’t sound too much different from state court in New York. Unlike federal court, where your trial date is your trial date, NY state courts just set date after date until by lucky chance everyone is ready to go at the same time. It’s pointless and inefficient as hell, but it doesn’t seem to be a huge problem. Most cases get there sooner or later. (Our magic number is usually 5 — if we’ve answered ready four times, it’ll usually go on the fifth. YMMV.)

Getting the cops to show up is a hassle for state prosecutors everywhere. Cops think they’re job is done when they made the arrest, court keeps them from making more arrests, and they don’t like being cross-examined any more than the next fellow. But that’s a simple fact of life everywhere, and doesn’t explain why Philly’s any different. Ditto for herding cats and witnesses. And ditto for defense attorneys who take advantage of the government’s inability to get its act together. It happens everywhere. It’s really irrelevant here.

6) Finally, the Inquirer says the courts aren’t enforcing bail. “Defendants skip courts with impunity,” so that there are nearly 47,000 fugitives in that town. “Impunity” means they never forfeit their bail. The city courts estimate “a staggering $1 billion” in supposedly forfeited bail remains uncollected. Fugitives don’t get convicted, because they’re not in court.

That is appalling. The whole point of bail is to ensure a defendant comes back to court, by holding his money hostage. The defendant puts up his cash or gets a loan from a bondsman. If the defendant doesn’t show up when he’s supposed to, he loses his cash or the collateral for the bond.

But if the defendant never forfeits his bail, then bail serves no purpose.


Whatever the reason, the conviction rate in Philly is so low as to be counterproductive. The DA’s office is acting in ways that increase, rather than decrease, the incentives to commit crimes.

People are being chewed up by the criminal justice machine when they never should have been charged in the first place. Not all of them got dismissed or acquitted. Who knows how many more went through it and went to jail? And criminals are committing more crimes with impunity. Everyone suffers.

This low conviction rate is merely a symptom of a deeper illness. The DA’s office is charging people when it shouldn’t be. It’s either jumping the gun before enough evidence is in, or it’s abusing its discretion and taking on every single arrest, or it’s trying to extort pleas. From the evidence in this article, it looks like the DA’s office is the disease at the root of it all.

There’s going to be a new DA there in January. We’ll see if he does anything about it. In the meantime, on the whole, we’d rather not be in Philadelphia.


Tuesday, September 15th, 2009


On our first day as a young Manhattan ADA, we were assigned to the office of the Special Narcotics Prosecutor for NYC. The purpose of Special Narcotics is to investigate and take down large-scale drug trafficking across the city. There were two parts to the office — the Special Investigations Bureau did tons of wiretaps, and was staffed by experienced prosecutors; the Trial Bureaus handled mostly street-level arrests, tons of them, in the hopes that some of those defendants would “flip” and provide information that could lead to a long-term investigation. We were assigned to a trial bureau.

We had competing feelings, at first. On the one hand, we were all gung-ho to do whatever small part we could, and were frankly itching to start trying cases. On the other hand, we were not at all eager to use informants. “Rats,” we believed, were not merely distasteful and disloyal, but were of dubious actual value. We were told in no uncertain terms that, if we weren’t going to use informants, then there was no way we’d ever be able to develop a big case.

(And just to be clear, by “informants” we don’t mean mere witnesses to a crime. We’re talking about defendants who are trying to get a more lenient sentence by helping to convict someone else.)

We spent the next five years in Special Narcotics, and sure enough dealt with more informants than we can count. Then we moved up to the Rackets Bureau of the Manhattan DA’s office, where we continued to develop and use informants for another five years. And though we were no George Smiley, we still got pretty good at it.

And sure enough, what they’d told us back on Day 1 was the truth: We never saw a case of any size that didn’t get started because of an informant. An informant is truly a prerequisite.

But at the same time, our gut feeling on Day 1 had also been correct: The vast majority of potential informants have zero value. We can’t imagine how many NYPD resources and sleepless ADA nights have been wasted dealing with useless informants, drafting and executing worthless search warrants, and running fruitless investigations.


These days, we’re on the defense side, and we simply don’t represent informants. If a defendant wants to flip, that’s their business, but they can find someone else to represent them. We like to think our job is to keep people out of jail, not to help the prosecution put someone else in jail.

Now that’s just us. There are plenty of decent and honorable defense attorneys who represent informants. We’re not disparaging them in any way. It’s just our own personal preference not to do so ourselves.

And that’s not to say we won’t have clients who cooperate, especially in federal white-collar cases. Cooperation doesn’t need to mean informing on others or trying to get someone else in trouble. There are all kinds of ways for a corporation or executive to cooperate with an investigation without being a rat or a turncoat.


So did we learn anything in all those years of developing and handling informants? Sure. More than enough to write a book or two, and certainly too much to set down in a blog post. But we don’t mind jotting down a few cautions that might be useful to our readers who might be working with or representing informants. (Defense counsel representing an informant has similar interests to those of the prosecutor — the informant only gets rewarded for results, so allowing him to screw the case is not in the client’s best interest.)

So here are a few things to be wary of:

* If it sounds too good to be true, it isn’t. The more kilos your informant claims to have seen inside that apartment, the more likely it is to house an elderly priest who’ll die of a heart attack when his door gets busted down. A street-level numbers runner who claims to have information about the leaders of an O.C. family is probably little more than a wannabe.

* Desperate people take desperate measures. Plenty of defendants would love dearly to be able to provide useful information, but unfortunately they don’t know any real crooks. At least none that they’re willing to inform on. It’s a sad truth that informants only get rewarded for results, not for efforts. So one frequently comes across the would-be informant who winds up trying to entrap friends and acquaintances into committing crimes. You run a serious risk of being duped yourself, and being party to that entrapment, if you’re not careful.

* Desperate people take even more desperate measures. Forget entrapment. Sometimes the would-be informant outright lies. Now your own integrity is at stake. So if a target letter went out, or an arrest has been made, be especially receptive to vociferous claims of innocence.

* An informant is never reliable. His information may be, on a given day, but he himself never is. He is an informant precisely because he is a criminal who is willing to sell out his friends and family. He is an informant in order to manipulate the system to his benefit. He is just as capable of manipulating you, and rest assured that is precisely what he’s trying to do.

* Watch out for an “informant” who is the actual culprit. Or who is a big fish trying to sell smaller fry.

* Ferret out whether the cops have made any promises on the side. Or worse yet, made payments or benefits to the informant beyond the scope of the deal. It’s a credibility-killer, especially if it comes out for the first time during testimony at trial.

* Nobody wants to make themselves look bad. So informants always, always hold back. Right about the time you think you’ve got the full story out of them, that’s where you need to presume there’s something serious they’ve held back that’s going to cause problems down the line.

* If it’s uncorroborated, presume it ain’t true. The best corroboration is physical evidence, photographs, and other non-testimonial items.

* Informants readily believe that law enforcement needs them, rather than the other way around. It does them no good to believe this. It should go without saying that the prosecutor should shut this attitude down at every opportunity. But the informant’s defense counsel should also make sure to hammer home that the informant is in charge of nothing in this relationship.

Finally, for the law-enforcement folks out there, do not rest your case on the informant. As soon as you can, drop the informant and build your case using other means. Ideally, you want a case where the informant never has to testify at all. Get the informant to introduce an undercover agent. Use the informant to get you started on a pen register or wiretap. Use the informant to launch physical surveillance or whatever. But get that informant out of the case as soon as possible.

That’s enough for one post. Time to stop before this turns into either a rant or a dissertation. We’ve got work to do.