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How to deal effectively with indifferent, hostile, or otherwise difficult federal prosecutors

By Hon. Carl Horn, III

In the "better-old-days," the primary concern of a criminal defense attorney at sentencing was the predilection of the judge. Assuming the judge was more-or-less neutral, he or she considered advocacy from both sides, then exercised discretion to fashion a fair and appropriate sentence. The best judges were not shallow tormentors with "black robe fever," but those who were humbled by the weighty responsibility of wisely balancing society's legitimate demand for justice and punishment with a proper measure of mercy and compassion.

While we should avoid idealizing the way things "used to be," it is an objective fact that since 1987 most sentencing discretion in federal cases has been either taken away entirely or transferred to the prosecutor. In my view, as a former prosecutor and close observer of the federal criminal process, this transfer of sentencing power has yielded regrettable results.

Power corrupts

As Lord Acton observed over a century ago, "power tends to corrupt. (1) " In the current era of mandatory minimum sentences, this axiom is proving itself true in U.S. Attorneys' offices across the country. Exercising discretion formerly reserved to the judiciary, many federal prosecutors have become arrogant bullies, cavalierly deciding whether to allow a defendant to cooperate, retaining sole discretion to decide whether any cooperation was substantial, and if so, how much of a downward departure to recommend to the court.

Of course, there are many hard-working, conscientious Assistant U.S. Attorneys who care not about convictions and the longest possible sentence, but instead about a fair, just, and proportionate result. But even AUSAs with a passion for fairness and balance - a decreasing minority of all AUSAs, I am afraid - can only do so much to facilitate a just result under the current system.

No check or balance

The heavy-handed exercise of prosecutorial power begins with charging decisions. In our district, for example, I not infrequently preside over initial appearances in which a defendant who has served little or no active time for past convictions now faces mandatory life, or a defendant without a history of violence is charged with multiple firearms offenses carrying consecutive sentences of 50 or more years. Most of these defendants qualify for court-appointed counsel, indicating to the neutral observer that they are not "kingpins" or even modestly successful criminals.

Assuming the government moves for detention, which is the rule rather than the exception in broad categories of cases, the prosecutor has another early opportunity to show a federal defendant "who's boss." Although I have had AUSAs in my courtroom state on the record that the government has no interest in a defendant's cooperation "if he is released," the message is usually more subtle. Either way, a defendant who may be able to overcome the statutory presumption and win release is faced with a Hobbesian choice: press the point and alienate the individual holding the keys to any possibility of a downward departure; or consent to detention, plead guilty, be debriefed, and hope the prosecutor will agree to release at some point in the future.

Even when a defendant is allowed to cooperate, is debriefed, and becomes a "maybe" for a motion for downward departure under Sentencing Guidelines Section 5K.1, there are many opportunities for the arrogant exercise - a.k.a. abuse - of prosecutorial power. Agents are "not available" for continued debriefing, as assumed or promised. If a defendant is still in custody, the AUSA "isn't ready yet" to recommend release. Telephone calls from equally busy or perhaps even busier defense counsel are not returned by AUSAs or agents. Threats are impliedly and sometimes explicitly made that the filing of certain motions - from motions for bond review to suppression motions - may jeopardize a 5K motion or reduce the recommended departure. And through it all, rather than being humbled by the vast, godlike power they are exercising, an attitude of condescending superiority is pervasively projected.

The results

Prosecutors cannot be blamed, of course, for the bipartisan decisions of Congress to standardize federal sentencing in 1987(2) or to establish and later increase mandatory minimums (up to and including mandatory life) for various crimes.(3) However, the manner in which a federal prosecutor's vast power is exercised - like the judge's exercise of sentencing discretion in yesteryear - has become the last, best hope in this fundamentally flawed system.

And so far, as we are concluding the second decade of this bold experiment, the results are not encouraging. According to the Justice Policy Institute, these results include a current jail and prison population of over two million. This means that the United States, with less than five percent of the world's population, now incarcerates over twenty-five percent of the world's prisoners.

It may be helpful to put these figures in historical perspective. In 1970, our jail and prison population was less than 10 percent of what it is today; that is, there were less than 200,000 prisoners. Does any neutral observer really believe an increase in crime - or any other objective factor - justifies an incarceration rate 30 times what it was for the five decades before 1970? Can any neutral observer articulate a just basis for sentencing low-level drug user/distributors, who would have formerly received a sentence measured in months or even probation, to minimum sentences of 20 or more years?

It is these facts and figures which come to my mind when I hear politicians of both parties trumpeting "tough on crime" increases in the already oppressive mandatory minimum sentences. And with these facts and figures come images of the faces and voices of young men and women who stupidly and irresponsibly got mixed up with drugs or other indicia of "crummy living," and those of their heartbroken mothers and fathers and children. What they have done is wrong and self-destructive to be sure, but I also find the glee with which many 30-something AUSAs send them off to decades in prison to be profoundly offensive.

Those with any doubt about the wisdom deficit in our current criminal justice policy should take time to read "Crime: When They Get Out," by Sasha Abramsky (The Atlantic Monthly, June 1999). Quite apart from the justice of disproportionate sentences for ever-increasing numbers, Abramsky draws an alarming picture of how unprepared society is to re-absorb - during the following ten years - "somewhere around 3.5 million first-time releases." Because, after all, unless they die in prison, even their oppressively long prison sentences will eventually come to an end.

What Abramsky poignantly establishes is that the release of millions of long-term prisoners, with poor employment prospects and a great deal of built-up anger and frustration, is upon us - and, more to the point, that there has been almost no preparation for it. He cites the work of William Sabol of the Urban Institute, who has studied the likely effects of release of substantial numbers of long-term prisoners in 90 metropolitan areas in the United States. The bottom line: Sabol and an increasing number of other experts see a prescription for what Abramsky calls "violent chaos" just around the corner, especially in already marginal metropolitan areas.

This is undeniably a grim picture. Do those who enthusiastically push mandatory minimum sentences and other laws contributing to the burgeoning U.S. prison population ever consider these consequences? If these consequences are brought to the forefront of the public conversation, will the bipartisan enthusiasm for longer and longer sentences begin to erode? In any event, these are figures and questions to keep in mind as we turn our attention to constructive strategies and potential solutions.

What can we do?

Return sentencing discretion to the judiciary.

The "big picture" solution to the current imbalance is to change the law, that is, to return sentencing discretion to the judiciary where it has properly resided since before Blackstone wrote his Commentaries on the Laws of England. Given the large number of federal defendants currently serving grossly disproportionate - that is, unjust - sentences, the judiciary should also be given discretion to consider and reduce these sentences on a case-by-case basis. In the meantime, however, there are constructive steps that should be take both to minimize unjust results under the current system and to work toward this more promising macrosolution.

Relationship with AUSAs

Except for the most egregious abusers of power, most AUSAs would prefer to have good relations with the defense bar. Therefore, even where communications have "gone south" in the past, defense attorneys should make an effort to start fresh with each new case.

Striving for a good professional relationship with the prosecutor - consciously lowering the emotional "decibel level," and resisting the temptation to demonize the AUSA "just doing her job" - will generally be in a client's best interest. On the other hand, as noted infra, there will also be points where turning the other cheek compromises a client's best interest, which is never proper.

Understand the management of your U.S. Attorney's Office

As if an increasing number of harsh and rigid federal prosecutors were not enough, the U.S. Department of Justice is apparently now encouraging U.S. Attorneys to micromanage their line attorneys. This is certainly true in our district, where experienced AUSAs have been stripped of most of their authority to negotiate a reasonable plea. If this is true in your district, getting upset with the individual prosecutor - the bearer of bad news - makes about as much sense, and is likely to have about as much effect, as yelling at government bureaucrats about the policies and procedures they are required to implement. In fact, the dirty little secret is that many AUSAs are unhappy with the oppressive and heavy-handed positions taken by their U.S. Attorneys and supervisors and, for the first time in many years, are keeping their eyes open for other employment.

The bottom line: the next time you are tempted to chew out an AUSA for being unreasonable, determine first whether he or she retains any discretion to be reasonable. If not, you may discover empathetic common ground that: (a) surprises you; (b) builds or re-builds a good working relationship; and (c) ultimately produces more favorable results for your clients.

Communicate with the court

In the better-old-days when judges had sentencing discretion, many judges regarded the prosecutor as occupying the moral high ground or, as it was sometimes put, as "wearing the white hat." This is less and less true. Most federal judges dislike the Sentencing Guidelines and mandatory minimums they are required mindlessly to impose, and many judges are increasingly irritated by the harsh and inflexible positions taken by the U.S. Attorneys' offices in their districts. Knowing this, the defense bar should establish and maintain open communications with the court, keeping potentially sympathetic judges apprised of policies and conduct they believe to be imbalanced, unfair, or otherwise unreasonable.(4)

Improve communications with probation office

Many defense attorneys give inadequate attention to their communications with pre-trial and pre-sentence officers in their respective probation offices. As with the court, there was a day in which the "government version" was presumed by federal probation officers to be adoptable with little or no modification; increasingly, this is no longer the case. Since it is much easier to defend findings and recommendations than it is to object and challenge them - whether regarding pretrial release or the ultimate sentence - it only makes sense to have as much influence as possible in their formulation. (Probation officers to whom I have spoken unanimously affirm that they would welcome increased and improved communications with the defense bar.)

A caveat, however: You will reduce your credibility, and perhaps even hurt your client, if you engage in too much advocacy in communications with probation officers. Instead, be careful to communicate only: (a) what you in good faith believe to be verifiably true: and (b) challenges to the government version or positions which you in good faith believe to be inaccurate or unverifiable.

Report the worst abusers

Even when prosecutorial excesses do not constitute sanctionable ethical violations - which should always be reported - there are occasions when particular actions (or omissions) are so patently heavy-handed or otherwise "unfair" that they should also be reported. In deciding to whom prosecutorial excess or misconduct should be reported, consider one or more of the following:

• The court (either to the chief district judge or, if arising in a particular case, to the district judge to whom that case is assigned)(5);
• The U.S. Attorney, unless, or course, he or she is complicit in the offending conduct or policy;
• The state and/or local bar, making sure the facts and your concerns are adequately described and documented (where possible), and sent to the correct office or committee for consideration;
• Office of Professional Responsibility U.S. Department of Justice, 950 Pennsylvania Ave., NW, Room 3335, Washington DC 20530 (202) 514-3365.

Try more cases

Assuming yours is a triable case(6), AUSAs who take harsh, rigid, or otherwise unreasonable positions during plea negotiations should be rewarded by having to try more cases. This has already occurred in our district, and the results have been interesting: marginally longer sentences in some but not all cases that are tried (due primarily to the loss of reductions for acceptance of responsibility) - but also more acquittals than ever before. In one recent case, when a judge granted the defendant's Rule 29 motion for judgment of acquittal at the close of the government's evidence, the jury spontaneously stood up and applauded.

Strength in information and numbers

If there is a local association of criminal defense attorneys, join and support it. If there are enough federal practitioners to support it, form a federal practice group. One important function of such an association (or section) is to collect information, that is, to keep a record of how your U.S. Attorney's Office and individual AUSAs have performed in the past. Copies of formal and informal reports of misconduct should be maintained in a central location, and regularly provided to the court, the state and/or local bar, the Justice Department's Office of Professional Responsibility and, of course, to members of the association.

Spread the word

While judges and an increasing number of lawyers realize we have a serious imbalance in our federal criminal system, most of the public still does not. In fact, the most often recurring comment I hear from friends or those who learn what I do for a living is some version of "Lock 'em up and throw away the key." Without putting the speaker down, my usual response begins something like, "You know, after over 15 years as a prosecutor and judge, I don't feel that way at all." Many constructive conversations have followed.

Take every opportunity to "spread the word." In addition to one-on-one communications, consider writing an opinion piece for your local paper or for your state and/or local bar publications. Write succinct letters to the editor that tell, as Paul Harvey would say, "the rest of the story" when related news is reported or opinion expressed. Accept, or even seek, opportunities to speak to civic, church, and other local clubs and groups. Appear on local television programs when invited. Little by little we must spread the word to the thinking and voting public - who, incidentally, also serve on our juries - if meaningful reform is to be achieved.

Educate, support - and, where necessary, recruit - political leadership

Because the long-term solution will require significant legislation, it is important to develop and cultivate good relations with senators and members of Congress, particularly those on key committees. Eschewing unnecessarily divisive rhetoric, political leaders must be convinced that the current system is fundamentally flawed, and ultimately persuaded that fairness in federal sentencing is a cause whose time has come.

Notes

1. This often-misquoted observation was penned in an April 5, 1887 letter from John Emerich Edward Dalberg-Acton, commonly known as Lord Acton, to Bishop Mandell Creighton. The full sentence read, "Power tends to corrupt and absolute power corrupts absolutely."

2. The U.S. Sentencing Guidelines were made applicable to offenses committed after November 1, 1987.

3. The adoption of the U.S. Sentencing Guidelines and various statutes carrying mandatory minimum sentences cannot be fairly attributed to either major political party, or accurately characterized as having predominantly "conservative" or "liberal" philosophical roots. To the contrary, the Guidelines and current mandatory minimums were adopted with strong bipartisan support, and have since been touted as proof they were "tough on crime" by both Republican and Democratic administrations.

4. Defense counsel must be careful to avoid prohibited ex parte communications with the court on pending cases, of course. However, there would appear to be no arguable ethical violation in a host of creative ways which might be chosen to "educate" local judges, including: sending copies of articles or reports; Inviting judges to hear speakers or to participate in seminars on point; arranging a general presentation of "concerns" by respected representatives of the defense bar; sending any written communication which is also copied to the prosecutor; and, of course, speaking candidly on the record at any stage of a proceeding.

5. See endnote 4. Indeed, the insecure feeling that he or she may be "in trouble" with the court can itself have salutary effects on an otherwise unbalanced and intransigent prosecutor.

6. Some federal cases are simply not triable and, indeed, it is harsh positions taken by U.S. Attorney's Offices or individual AUSAs in these cases which can be most maddening. For example, where a defendant with prior drug convictions faces "mandatory life" and there is little doubt will be found guilty of being in the charged conspiracy - albeit in a much reduced role that is alleged by the government - a plea offer of 20 to 25 years almost always must be accepted, however harsh or unreasonable it seems.

About the Author

Carl Horn is Chief U.S. Magistrate Judge for the Western District of North Carolina. A former Chief Assistant U.S. Attorney (1987-93), he is the author of the Fourth Circuit Criminal Handbook and Horn's Federal Criminal Jury Instructions for the Fourth Circuit.

©The Champion (March/April 2003 Vol. 21 No. 2) Reprinted with permission.

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