Why Prosecutors Can Bully Defendants into Giving Up their Right to Trial

In discussing the case of Aaron Swartz and Carmen Ortiz, a colleague asked a reasonable question: is what Carmen Ortiz did, threatening decades of imprisonment but offering to settle for six months IF Swartz would forgo a trial, anything new? Haven't there always been plea bargains like this? Perhaps the statutes are vaguer, as the CFAA certainly is, and perhaps the law is having more trouble these days keeping up with technology. But is the bargaining leverage any different than it ever was?

I am grateful to Harvey Silverglate for pointing me to a report that makes clear the leverage has gotten a lot stronger in the past 15 years. This is a 2001 report reviewing the sentencing in a particular criminal trial.

"The law is clear beyond peradventure that a sentence based on retaliation for exercising the constitutional right to stand trial is invalid." United States v. Mazzaferro, 865 F.2d 450, 460 (1st Cir.1989) (Bownes, J.). Well, not really. At least not today in the First Circuit. Evidence of sentencing disparity visited on those who exercise their Sixth Amendment right to trial by jury is today stark, brutal, and incontrovertible. True, there has always been a sentencing discount for those who plead guilty and turn state's evidence. In this District, that discount used to range from 33% to 45%.^[32] Today, under the Sentencing Guidelines regime with its vast 68*68shift of power to the Executive, that disparity has widened to an incredible 500%.^[33] As a practical matter this means, as between two similarly situated defendants, that if the one who pleads and cooperates gets a four-year sentence, then the guideline sentence for the one who exercises his right to trial by jury and is convicted will be twenty years.
Not surprisingly, such a disparity imposes an extraordinary burden on the free exercise of the right to an adjudication of guilt by one's peers. Criminal trial rates in the United States and in this District 69*69 are plummeting^[34] due to the simple fact that today we punish people — punish them severely — simply for going to trial.^[35] It is the sheerest sophistry to pretend otherwise. This is nothing new, of course. Sugarcoat it as we may with terms like 70*70"acceptance of responsibility" for those who cooperate, we have always punished those who demand that the government carry its constitutionally-mandated burden of persuasion beyond a reasonable doubt before an American jury. What is new and unprecedented is the severity of the punishment we are meting out to those whose only differentiating factor is that they ask for the chance to have an independent jury evaluate the evidence.
Although this case does not require that the line be drawn with precision, were it open to me I would today hold that the 700% difference between Cimeno's three-year sentence and Berthoff's twenty-one year sentence is simply too great a burden on Berthoff's exercise of his Sixth Amendment right to trial by jury and a sentence of fifteen years (i.e., a 500% increase over Cimeno to a sentence in line with the one Judge Freedman gave Catalucci) would be more just.

Later, in an endnote, the report states, "In 1999, the U.S. District Courts completed the fewest number of trials in 30 years, while filings were two and one-half times higher than in 1970. Civil trials have been decreasing since 1982, and criminal trials have been decreasing since 1992. Declines in trials have occurred in all categories of cases and in both jury and nonjury trials. Most importantly, the proportion of cases terminated by trial has been declining."

Even if one disagrees with Judge Young (the author of this report) about where the limits of reasonable leverage should be, it is hard to deny that those limits should be somewhere. It would surely be unconscionable to rack up felony pleas by giving the defendant the option of 1 day in jail if he pleads guilty and the risk of 50 years in jail if he insists on his constitutional right to a trial with an uncertain outcome.

So yes, there has been a change. The prosecutors have more power to bully than they used to, and that is wrong.