Pubdate: Tue, 26 Apr 2011
Source: New York Times (NY)
Copyright: 2011 The New York Times Company
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Details: http://www.mapinc.org/media/298
Author: Richard A. Oppel Jr.

SENTENCING SHIFT GIVES NEW LEVERAGE TO PROSECUTORS

GAINESVILLE, Fla. -- After decades of new laws to toughen sentencing
for criminals, prosecutors have gained greater leverage to extract
guilty pleas from defendants and reduce the number of cases that go to
trial, often by using the threat of more serious charges with
mandatory sentences or other harsher penalties. Some experts say the
process has become coercive in many state and federal jurisdictions,
forcing defendants to weigh their options based on the relative risks
of facing a judge and jury rather than simple matters of guilt or
innocence. In effect, prosecutors are giving defendants more reasons
to avoid having their day in court.

"We now have an incredible concentration of power in the hands of
prosecutors," said Richard E. Myers II, a former assistant United
States attorney who is now an associate professor of law at the
University of North Carolina. He said that so much influence now
resides with prosecutors that "in the wrong hands, the criminal
justice system can be held hostage."

One crucial, if unheralded, effect of this shift is now coming into
sharper view, according to academics who study the issue. Growing
prosecutorial power is a significant reason that the percentage of
felony cases that go to trial has dropped sharply in many places.

Plea bargains have been common for more than a century, but lately
they have begun to put the trial system out of business in some
courtrooms. By one count, fewer than one in 40 felony cases now make
it to trial, according to data from nine states that have published
such records since the 1970s, when the ratio was about one in 12. The
decline has been even steeper in federal district courts.

Cases like Florida v. Shane Guthrie help explain why. After Mr.
Guthrie, 24, was arrested here last year, accused of beating his
girlfriend and threatening her with a knife, the prosecutor offered
him a deal for two years in prison plus probation.

Mr. Guthrie rejected that, and a later offer of five years, because he
believed that he was not guilty, his lawyer said. But the prosecutor's
response was severe: he filed a more serious charge that would mean
life imprisonment if Mr. Guthrie is convicted later this year.

Because of a state law that increased punishments for people who had
recently been in prison, like Mr. Guthrie, the sentence would be
mandatory. So what he could have resolved for a two-year term could
keep him locked up for 50 years or more.

The decrease in trials has also been a consequence of underfinanced
public defense lawyers who can try only a handful of their cases, as
well as, prosecutors say, the rise of drug courts and other
alternative resolutions.

The overloaded court system has also seen comparatively little
expansion in many places, making a huge increase in plea bargains a
cheap and easy way to handle a near-tripling in felony cases over the
past generation.

But many researchers say the most important force in driving down the
trial rate has been state and federal legislative overhauls that
imposed mandatory sentences and other harsher and more certain
penalties for many felonies, especially those involving guns, drugs,
violent crimes and repeat offenders.

Stiffer punishments were also put in place for specific crimes, like
peddling drugs near a school or wearing a mask in certain
circumstances. And legislators added reams of new felony statutes,
vastly expanding the range of actions considered illegal.

These tougher penalties, by many accounts, have contributed to the
nation's steep drop in crime the past two decades. They have also
swelled the prison population to levels that lawmakers in some states
say they can no longer afford, and a few have rolled back some laws.

The 'Trial Penalty'

In the courtroom and during plea negotiations, the impact of these
stricter laws is exerted through what academics call the "trial
penalty." The phrase refers to the fact that the sentences for people
who go to trial have grown harsher relative to sentences for those who
agree to a plea.

In some jurisdictions, this gap has widened so much it has become
coercive and is used to punish defendants for exercising their right
to trial, some legal experts say.

"Legislators want to make it easy for prosecutors to get the
conviction without having to go to trial," said Rachel Barkow, a
professor of law at New York University who studies how prosecutors
use their power. "And prosecutors who are starved for resources want
to use that leverage. And so now everyone acts with the assumption
that the case should end with a plea."

"When you have that attitude," she said, "you penalize people who have
the nerve to go to trial."

Prosecutors say they are giving defendants options and are merely
charging them based on what is allowed under the law for those who
turn down pleas.

While legal experts say the effect is clear in persuading more
defendants to forgo trials, the trial penalty is hard to quantify
without examining individual cases and negotiations between
prosecutors and defense lawyers.

That is because threats of harsher charges against defendants who
reject plea deals often are the most influential factor in the outcome
of a case, but this interplay is never reflected in official data.

"How many times is a mandatory sentence used as a chip in order to
coerce a plea? They don't keep records," said Senior Judge John L.
Kane Jr. of United States District Court in Denver, who believes that
prosecutors have grown more powerful than judges. But it is very
common, he added. "That's what the public doesn't see, and where the
statistics become meaningless."

But one result is obvious, he said: "We hardly have trials
anymore."

In 1977, the year Judge Kane was appointed to the bench, the ratio of
guilty pleas to criminal trial verdicts in federal district courts was
a little more than four to one; by last year, it was almost 32 to one.

Here in Florida, which has greatly toughened sentencing since the
1990s, felony defendants who opt for trial now routinely face the
prospect of higher charges that mean prison terms 2, 5, or even 20
times as long as if they had pleaded guilty. In many cases, the
process is reversed, and stiffer charges are dismissed in return for a
plea.

Before new sentencing laws, the gap was narrower, and trials less
risky, veteran lawyers here say. The first thing Denis deVlaming, a
prominent Florida criminal defense lawyer, does with a new client is
pull out a calculator to tally all the additional punishments the
prosecutor can add to figure the likely sentence if the client is
convicted at trial.

"They think I'm ready to charge them a fee, but I'm not," he said. "I
tell them in Florida, it's justice by mathematics."

No matter how strongly defendants believe they are innocent, he said,
they could be taking dangerous risks by, for example, turning down a
one-year plea bargain when the prosecutor threatens additional charges
that carry a mandatory sentence 10 times as long.

A Power Shift

The transfer of power to prosecutors from judges has been so profound
that an important trial ritual has become in some measure a lie, Mr.
deVlaming said -- the instructions judges read stating that the jury
determines guilt or innocence, and the judge a proper sentence. The
latter part is no longer true when mandatory minimums and, in many
cases, sentencing guidelines apply, but jurors often do not know that.

Legal scholars like Paul Cassell, a conservative former federal judge
and prosecutor who is now a law professor at the University of Utah,
describe the power shift as a zero-sum game.

"Judges have lost discretion, and that discretion has accumulated in
the hands of prosecutors, who now have the ultimate ability to shape
the outcome," Mr. Cassell said. "With mandatory minimums and other
sentencing enhancements out there, prosecutors can often dictate the
sentence that will be imposed."

Without question, plea bargains benefit many defendants who have
committed crimes and receive lighter sentences than they might after
trial. It also limits cases that require considerable time and expense
in court.

But many defendants who opt for trial effectively face more prison
time for rejecting a plea than for committing the alleged crime.

In Mr. Guthrie's case, he was initially charged with aggravated
battery on a pregnant woman and false imprisonment. But after he
rejected the plea bargains, the prosecutor, more than a year later,
filed the more serious charge of first-degree felony kidnapping, based
on the girlfriend's accusation that he pulled her by the arm inside
her home and, once outside, grabbed her hair and pulled her on her
feet the distance of several parking spaces.

Nobody is suggesting that Mr. Guthrie, previously incarcerated for 18
months on gun, assault and drug charges, is a sympathetic figure.
According to a police report, he punched and kicked his girlfriend,
left her with a bruised and bloody nose and a face that "appeared to
be swollen," and threatened to cut her stomach with a knife.

The assistant state attorney handling the case, Frank Slavichak, did
not return calls. The chief investigator for the office, Spencer Mann,
said Mr. Guthrie's choices dictated the course of the case.

But his lawyer, Craig DeThomasis, hired after the plea rejections,
said he was "plainly being punished for exercising his right to
trial." According to Mr. Guthrie's mother, Claudia Guthrie, the
prosecutor told her son at a hearing this spring that if he did not
plead guilty and take a five-year sentence, higher charges would be
filed that mean "you're going to get life." Mr. Mann did not dispute
that some sort of warning of new charges was presented.

Mr. DeThomasis said that there was no evidence the girlfriend was
pregnant, and that she started the altercation by hitting him in the
forehead with a pipe, landing him in the jail infirmary for a week. He
pointed out that she was arrested in 2009 for attacking Mr. Guthrie
after telling the police he had struck her, leading police to say in a
report that she had "changed her story several times and could not
explain her actions." He also said she had a history of involuntary
hospitalizations, which she declined to address in a 110-page sworn
deposition in February.

Mr. Mann declined to comment on the girlfriend's background but said
none of it affected the credibility of the case.

Judges in many cases can set aside verdicts that they believe are
unsupported by the evidence, but they generally have no power in
mandatory-minimum cases to reduce punishments below levels established
through legislation.

While the Guthrie case may be a particularly stark example of how much
power one prosecutor can have over a defendant's fate, many places
have given district attorneys similar influence.

"There have been so many laws passed in the various states that just
about always there is some enhancement available to the prosecutor
that can be used as leverage in negotiations," said Scott Burns,
executive director of the National District Attorneys
Association.

Mr. Burns, a former Utah prosecutor, did not dispute that
sentencing-law changes had made trial riskier for defendants and
helped drive down the percentage of cases taken to a verdict. He also
acknowledged that the plea-bargain process "clearly is coercive" when
defendants face harsher or more numerous charges for rejecting deals.

But he said plea bargains were also "extremely lenient in many
instances because prosecutors are taking several criminal acts off the
table." He emphasized that lawmakers time and again have given
prosecutors more leverage and said it was "grossly unrealistic" to
criticize district attorneys for enforcing laws that they are
duty-bound to uphold -- even those that are ill-advised.

"There are a lot of criminal laws that are passed that we all kind of
roll our eyes at," he said. "Sometimes they are just repetitive;
sometimes they are knee-jerk responses to some high-profile case, and
therefore politically motivated."

Though national statistics are not readily available, the trend toward
lower trial rates is evident in a number of places.

The National Center for State Courts in Williamsburg, Va., found that
the percentage of felonies taken to trial in nine states with
available data fell to 2.3 percent in 2009, from 8 percent in 1976.

The number of jury trials rose slightly, while nonjury trials, where a
judge decides guilt or innocence, fell sharply -- all while caseloads
nearly tripled. The states account for more than a third of the
American population, and most have mandatory minimums or sentencing
guidelines or have passed toughened sentencing laws.

The Bureau of Justice Statistics, after studying partial data on
state-court felony prosecutions nationwide, found that from 1986 to
2006 the ratio of pleas to trials nearly doubled.

The shift has been clearer in federal district courts. After tougher
sentencing laws were enacted in the 1980s, the percentage of criminal
cases taken to trial fell to less than 3 percent last year, from
almost 15 percent, according to data from the State University at
Albany's Sourcebook of Criminal Justice Statistics. The explosion of
immigration prosecutions, where trials are rare, skews the numbers,
but the trend is evident even when those cases are not included.

Nearly nine of every 10 cases ended in pleas last year, the federal
data show, while one in 12 were dismissed (the percentage of dismissed
cases was substantially higher a generation ago).

The number of acquittals dropped even further. Last year, there was
only one acquittal for every 212 guilty pleas or trial convictions in
federal district courts. Thirty years ago, the ratio was one for every
22.

More Plea Bargaining

Experts like Ronald Wright, a former federal prosecutor and now a
professor of law at Wake Forest University, say they fear that the
steep decline in acquittals stems partly from more defendants, who
might have winnable cases, deciding not to risk trials and reluctantly
accepting plea bargains instead.

Some federal prosecutors worried that their power would be weakened by
a 2005 Supreme Court ruling that made sentencing guidelines advisory
only. But academics say the ruling had much less effect than what some
predicted as many judges still largely follow the guidelines, and the
ruling did not affect other laws that have given prosecutors more power.

While sentencing changes allowed legislators in this state to take
credit for being tough on crime, they have also worked against their
goal of trimming prison costs, leaving prosecutors caught in the middle.

"There is a big disconnect," said Bill Cervone, the state attorney in
Gainesville and the chief prosecutor in six counties that make up
Florida's Eighth Judicial Circuit. "There is subtle and not so subtle
pressure" to reduce the numbers sent to prison.

Mr. Cervone, who was head of the Florida Prosecuting Attorneys
Association, added, "Our position is, 'Please don't pass any new crime
laws while you are also cutting our budgets.' " His budget has been
cut 20 percent in four years.

The fiscal strains extend to judges, who face pressure to keep dockets
moving. Some do not appreciate defendants who refuse pleas and then
lose a time-consuming trial, he and other lawyers say.

"There are some judges who will punish you for going to trial," Mr.
Cervone said. "Legally, you cannot impose a longer sentence on someone
because they exercised their right to trial," he said, speaking of
judges. "Factually, there are ways to do it."

In some cases, he added, he wished judges had more discretion, instead
of having to automatically impose an inflexible punishment.

So, too, do many judges faced with cases where legislatively mandated
penalties do not square with their idea of justice.

Like the one in Polk County, Fla. that began when Orville Wollard said
he fired his registered handgun into his living room wall to scare his
daughter's boyfriend out of the house after he repeatedly threatened
his family.

In Mr. Wollard's view, he was protecting his family and did not try to
hurt the boyfriend, who was not hit, though the judge said the bullet
missed him by inches. But after Mr. Wollard turned down a plea offer
of five years of felony probation, prosecutors won a conviction two
years ago for aggravated assault with a firearm. Because the gun was
fired, a mandatory-minimum law required a 20-year term.

At his sentencing, Mr. Wollard said he felt as if he were in "some
banana republic" and described the boyfriend as a violent drug dealer.
But prosecutors said the judge had "no discretion" because of the state law.

Reluctantly, the judge agreed. "If it weren't for the mandatory
minimum aspect of this, I would use my discretion and impose some
separate sentence," he told Mr. Wollard, adding that he was "duty
bound" to impose 20 years.
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