Legal Commentary

Federal Judge Criticizes DOJ's Usurption of Sentencing Power

By Jeralyn

Via Sentencing Law and Policy, here's a welcome decision (pdf) by a federal judge in New Hampshire criticizing the DOJ's threatened use of the recidivist hammer in a drug case to get an overly harsh mandatory minimum sentence. The case is US v. Taliaferro, No. 08-cr-7-1-SM (D.N.H. Sept 1, 2009). As Prof. Berman writes, the beginning and the end of the opinion tell the story:

In this case, the government has effectively removed the court from the sentencing process, and dictated the sentence to be imposed. Exercising its considerable charging discretion in the context of applicable statutory mandatory minimum sentences, the government extended an offer that the defendant could hardly refuse: be subjected to a mandatory minimum sentence of 20 years in prison, or accept a binding plea agreement providing for a sentence of 15 years (based upon a drug charge carrying a mandatory minimum of 10 years, with the government declining to file a notice of prior conviction under 21 U.S.C. § 851, which would trigger the mandatory sentence of at least 20 years)....

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Based upon this record, ... the court would likely impose a sentence in the 8 to 10 year range, but for the applicable mandatory minimum, and certainly not more than 12 years. Therein lies the rub — if the court rejects the plea agreement without knowing whether the government will, in turn, withdraw from the plea agreement, imposition of a mandatory sentence even more severe than 15 years could result. That version of blind man’s bluff is inconsistent with fundamental notions of justice and fairness, and the court chooses not to play.

The Judge is appealing to the U.S. Attorney's sense of fair play:

This district also has a new United States Attorney. Given the publicly announced intent by the Department to take a new look at sentencing policy, particularly with respect to mandatory minimums and crack/powder disparities, and given the inflexible and seemingly out-of-step approach embodied in the plea agreement and underlying exercise of charging discretion in this case, I have directed that a copy of the sentencing hearing transcript be prepared and forwarded, along with this order, the presentence investigation report, and defendant’s sentencing memorandum, to the United States Attorney for his personal review and determination of the government’s intent to withdraw or not withdraw from the plea agreement should the court impose a sentence substantially below that called for in the agreement....

Sentencing in this case will be rescheduled after the United States Attorney has had an opportunity to review and consider the issue and advises the court whether the government intends to withdraw from the plea agreement should a sentence substantially below 15 years be imposed.

But if that doesn't work, the defendant will suffer, as the judge is powerless:

As is perhaps obvious, the court will not reject the plea agreement if, in that event, the government intends to withdraw, file the Section 851 notice, and thereby trigger a 20-year mandatory sentence. Rather, the court will impose the 15 year sentence, with regret, but recognizing that, as a practical matter, it is completely without sentencing discretion to do otherwise, notwithstanding the promises of 18 U.S.C. § 3553(a).

Full post as published by TalkLeft on September 04, 2009 (boomark / email).