Bargaining – and threatening – for justice

Was it OK to threaten Maureen McDonnell with prison time to coerce a guilty plea from her husband?

Of course I’m always delighted to see Republican politicians nailed for corruption: how else are we going to recruit conservatives to the cause of criminal justice reform? And there seems to be no doubt that Gov. McDonnell was using his office to line his pockets, though it’s less clear what Star Scientific thought it was going to get for its money.

But I just stumbled on a story that ran just after the indictment reporting that McDonnell was offered a plea deal and turned it down. The deal was for a plea to a single felony, no prison time, and no indictment of his wife. Instead he chose to fight the charges, and now both he and his wife face years behind bars.

To my eyes, that’s a problem, and the symptom of a bigger problem.

Start with the charges against Maureen McDonnell. I haven’t figured out the facts, so I can’t judge how responsible she was for what went on. It appears that on a personal level her guilt was in some sense greater than her husband’s, but he was the office-holder. In any case, whether she was charged with a crime should not have depended on whether someone else took a plea. If she deserved to be charged, she should have been; else, not.

Whether or not Maureen McDonnell deserves to go to prison, it seems to me obviously wrong for the prosecutors to use her as a pawn in negotiations with her husband, and to put her husband in a position where his decision to exercise his Constitutional right to a trial put his wife’s liberty in jeopardy.  She shouldn’t be punished (or given a break) for someone else’s actions, and he shouldn’t have to face the threat that his intimates might be punished as well as himself if he decides to fight the charges.

This criticism puzzles my friends who are prosecutors. They tell me I just don’t understand how things work. In fact, I do understand. I just don’t approve.

Congress and the state legislatures  – for reasons I don’t fully grasp – have decided to hire lots and lots of cops and other investigators, but not  to create enough judges, hire enough prosecutors, or pay for enough public defense counsel to actually afford “a speedy and public trial” to the vast majority of defendants. As a result, the process of justice is now primarily a process of bargaining, with something like 95% of all dispositions (putting aside arrests never leading to a charge and cases dismissed along the way) by plea rather than verdict.

If the sentence after trial and conviction were the same as the sentence after a plea, there would be no reason for even a grossly guilty defendant not to “roll the dice” and hope to get lucky at trial, or at worst to defer the day of reckoning. So there has to be an inducement to plead guilty, in the form a more lenient sentence. That’s just the logic of the situation.

But that leaves open the key question: “more lenient” compared to what? Imagine that a prosecutor had in mind the appropriate sentence for some course of criminal conduct, all things considered. Is the plea bargain offered a discount from that ideally just sentence? Or, instead, is the just sentence offered as the bargain, with an unduly Draconian sentence (perhaps reflected in overcharging the case) held out as a threat if the defendant exercises what is, again, a Constitutional right?

Of course, since no one knows what the Platonically just sentence would be, there’s no obvious way to answer that question. But – in the absence of any check on the prosecutor’s discretion other than office policy – the temptation to use the threat to over-charge as a bargaining tool is ever-present.

Moreover, the insanely long sentences now routinely handed out in federal drug cases (which are about half of all federal cases) have, in my view, distorted the whole scale of values. Compared to the 10-year mandatory faced by a minor player in a one-kilo ($20,000) cocaine deal, even the multi-year term McDonnell is likely to draw hardly seems excessive. But that relative consideration doesn’t make his sentence any more reasonable on an absolute scale. What is the additional public value from having him behind bars for seven years rather than, say, two?  (I don’t know how to do the Guideline calculation, but my guess is he’s looking at more than seven.)

In this case, all the prosecutors wanted was a guilty plea from the Governor. In other cases, they’re looking for more than a plea: they want “cooperation” against other defendants. Again, there’s a conceptual distinction between an offer of lenity in return for testimony and the threat of excessive harshness as a punishment for silence, but that’s not a distinction easily made in practice, and all the temptation is on the side of the excessive threat.

But my concern about bargaining for testimony goes much deeper than that. For a private party to litigation, offering a witness any material incentive for testifying – even for testifying truthfully – is a felony. So is threatening a witness to force him to testify: again, even if the resulting testimony is truthful. Only prosecutors are allowed to bribe witnesses (with the promise of lenity) and threaten them (with excessive sentences), with complete impunity.

There’s something wrong here. Why should a jury give any credence to such suborned or coerced testimony? Prosecutors reply that they’re careful to make sure that whatever the cooperating witness says can be independently verified, but what that means is just that the investigators and the prosecutor vouch for it. The testimony itself is obviously worthless, and the accompanying assertion that the witness hasn’t been offered anything is the flimsiest kind of legal fiction. I’m sure there’s a distinction in principle between testimony extracted under threat of the rack and testimony extracted under threat of fifteen years in a nasty prison, but that distinction must be such a subtle one that you need three years in law school to grasp it. To the rest of us peasants they look like pretty much the same animal.

But even coerced and induced testimony isn’t as morally disgusting as the practice of using threats to third parties – especially wives, girlfriends, children, parents, and siblings – to coerce guilty pleas. At the federal level, the routine use of that technique seems to go back to the early days of the Organized Crime Strike Forces. The history of the successful war on the Mafia started by Robert F. Kennedy as Attorney General and fought with diligence and creativity by prosecutors and investigators over the next thirty years has, so far as I know, yet to be written. It’s in many ways an inspiring story. The Mafia, with its open defiance of the law and its deep connections to political and economic power, represented an extraordinary threat and challenge, and extraordinary means were, in my view, justified in fighting back. (Consider the fact that the makers of the Godfather movie series needed to get permission to make it from the Mafia bosses who still controlled Las Vegas in the early 1970s.)

But of course the problem with extraordinary means is that they don’t stay extraordinary. Perhaps – though I doubt it – the practice of threatening intimates might have been justified by the need to break the power of the Gambinos and their ilk. But the McDonnell case – a rather routine piece of a politician’s greed – presented no such justification. By now, however, the use of such threats is now accepted as a normal item in the prosecutor’s toolkit.

An old legal adage I heard repeated more than once when I worked in the Criminal Division at DoJ holds that “The government carries its case when justice is done.” It seems to me that the current generation of prosecutors could usefully meditate on the truth of that maxim.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

6 thoughts on “Bargaining – and threatening – for justice”

  1. I’ve noticed this massive power. A prosecutor has vast discretion over which cases to bring, or to not bring, and the charges to make.

  2. i’m a CA prosecutor (albeit at the appellate level, so i don’t get to exercise all the discretion in charging a crime and plea bargaining that DAs do), and i’m sypathetic to mark’s view. prosecutorial discretion is important, but there should be statutes that place limits on what DAs can offer and threaten, so they can’t routinely make offers that can’t be refused. i would add one thing that mark didn’t mention though: when prosecutors male promises to a witness for leniency, the defense can raise the issue on cross. that is a check on the process.

  3. It's a little funny that you know all this, yet you aren't a legalizer. How anyone could do a cost/benefit and come up with our system would be astounding. But of course, no one in office ever bothers. It's not their money, and American voters, well …. you know the rest.

    My concern though is that our political system is just as dysfunctional, and that means we may not ever be able to fix these problems. Who can be clean when the rich have so, so much political power? I don't see much hope, and certainly none with this current Supreme Court, which has bleeped campaign finance law pretty much into orbit. I don't feel morally right in hoping for someone else to die young. (I suppose, they could resign. If only.) So, it's hard to see how this can change. Then you have the left wasting huge amounts of time trying to undo Citizens United, and guess what? That wouldn't fix the problem. The corporate distinction is a small piece.

    So, other than a long sigh, not sure what to say.

  4. Mark, you say "even coerced and induced testimony isn’t as morally disgusting as the practice of using threats to third parties – especially wives, girlfriends, children, parents, and siblings – to coerce guilty pleas."

    I think your choice of words is misrepresenting the actions of the prosecutor.

    I think they had enough evidence to try Mrs. McDonnell and expect a conviction. I think their position was that they didn't care nearly as much about her crime(s) as they did about his, because he was the Governor. So I think what they did wasn't "threatening her." Rather, it was offering an inducement to not prosecute her as a sweetner to convince the Governor to cop a plea and avoid a trial.

    And I think that's a time-honored prosecutorial option in lots of criminal trials. The big brother recruits his little brother to sit outside on the stoop and watch out for cops while big brother and his two buddies burglarize the house. Unfortunately, the homeowner is at home, and gets shot, which was never part of the plan. Now the crime is armed robbery and assult with a deadly weapon. The cops offer the big brother to let his little brother off with a lesser charge if big brother will cop to armed robbery instead of burglary.

    1. If she deserved to be prosecuted for what she did – as I think was the case – then it would have been wrong to give her a pass because her husband was willing to copy a plea and save the prosecutors the effort of a trial. If she didn't deserve to be prosecuted on her own merits, then it was wrong to threaten to do so to get leverage on her husband. If the system is supposed to embody justice, no one should be punished for the crimes, or not punished for the merits, of anyone else. And as long as these deals are the norm, no one will believe the prosecutor when he says that the decision to prosecute the wife wasn't made to pressure the husband.

  5. "Whether or not Maureen McDonnell deserves to go to prison, it seems to me obviously wrong for the prosecutors to use her as a pawn in negotiations with her husband, and to put her husband in a position where his decision to exercise his Constitutional right to a trial put his wife’s [life] in jeopardy." There was this couple named Rosenberg . . .

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