Other criminal law bloggers already weighed in last month when the news reported that two juvenile court judges in Pennsylvania took millions of dollars in bribes to automatically send juvenile offenders to private detention centers, in other words, to prison.
In a fit of disgust combined with blogging laziness I refrained from writing about the story at that time. (Blog envy may have had something to do with it as well. Fellow Austin criminal lawyer Lance Stott had already summed it up best with the succinct comment: “You know, there’s really got to be a special place in the afterlife for taking kickbacks to send kids to jail.” Once someone hits the nail on the head, there’s no need to continue.)
Then yesterday, Ian Urbina’s article “Despite Red Flags About Judges, a Kickback Scheme Flourished” was published in the Times. Urbina reported that in this particular juvenile courtroom:
Proceedings on average took less than two minutes. Detention center workers were told in advance how many juveniles to expect at the end of each day — even before hearings to determine their innocence or guilt.
Two minutes. Seems like a long time considering you know in advance you are going to max the kid out. But I guess you’ve got to keep up appearances.
Lawyers told families not to bother hiring them. They would not be allowed to speak anyway.
My first thought was to blog about a concept I encountered twenty years ago in some undergrad cognitive psychology class: learned helplessness. Honest lawyers told parents not to hire them because there was nothing they could do in that court to help improve the child’s outcome. And unlike the animal psychology experiments by Seligman and Maier, no one ever could or did turn off the shock collars. Everyone really did go to prison. What’s the use of getting a lawyer?
But then for some reason, this part of the article struck me as odd:
On Thursday, the State Supreme Court ordered that the records be cleaned for hundreds of the 2,500 or so juveniles sentenced by Judge Ciavarella, and in the coming weeks, the two judges will be sentenced, under a plea agreement, to more than seven years in prison.
Other reports had very specifically said 87 months.
This was a federal case. The article stated that the defendants plead to “tax evasion and wire fraud”. A quick check on PACER confirmed that, yes, the information charged them with violations of federal law: 18 USC § 1343 (wire fraud), § 1346 (honest services), and § 371 (conspiracy to defraud the United States – that is, the “tax evasion”).
Federal crimes and a guilty plea = guessing game when it comes to the guidelines, right? Heck, Doug Berman makes a pretty good blog-living just from his frequent “everyone weigh in to guess what sentence So-and-So will get” posts.
And yet the papers were predicting the sentence exactly. Usually you’ll see some sort of namby-pamby mumbo-jumbo about “could get up to 20 years in prison”. Or whatever the maximum sentence could be. Ubiquitous background check availability on the internet still can’t guarantee that a journalist will accurately predict criminal history category.
And I’d bet even the best federal criminal defense lawyers are occasionally caught off guard by increases to the base offense level suggested by Probation in the Pre-Sentence Report. And even if you know the criminal history and the offense level, there’s still a range. Predicting an exact sentence in a federal criminal case is impossible.
With one exception. Federal Rules of Criminal Procedure 11 (c) (1) (C). Eliding, we get:
Rule 11. Pleas
(c) Plea Agreement Procedure.
(1) In General.
…If the defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, the plea agreement may specify that an attorney for the government will…
(C) agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement).
Another few clicks on PACER and my suspicions were confirmed. The defendants had entered into an 11 (c) (1) (C) agreement. They aren’t going to face the vagaries of the Federal Sentencing Guidelines; assuming the judge will approve the plea bargain, they already know exactly what they are getting.
The usual course of business when representing a lawyer, a doctor, a professor, a “professional” in a criminal sentencing matter is to beef up that “boy-scout packet” and argue to the judge that your client had always been an upstanding and contributing member of society. Except for this one little hiccup. Can’t you use your discretion to ignore those no-longer-mandatory guidelines and sentence us below them?
Of course, the flip side of Booker is that the judge is also free to “tailor the sentence” above the guidelines. And who is a judge going to hammer, if not some scumbag whose actions disgrace his own profession?
Still, it’s ironic, isn’t? These men who held the fate of thousands in their hands being afraid to leave their own sentences “up to the judge”. I find myself thinking like a victim’s rights advocate.
Wouldn’t it have been more appropriate if they had to walk into court, like their victims did, shaking in their boots and not knowing what their own fate would be?