Practice Under the Federal Sentencing Guidelines: Bargaining for Freedom
| Publication year | 1993 |
| Pages | 485 |
| Citation | Vol. 22 No. 3 Pg. 485 |
1993, March, Pg. 485. Practice Under the Federal Sentencing Guidelines: Bargaining for Freedom
Prior to the institution of the federal sentencing guidelines and the 1984 Bail Reform Act, defense practitioners normally viewed criminal representation as involving five somewhat distinct but interdependent stages. Preparation was often compartmentalized to deal with each task sequentially.
The first stage consisted of client consultation, case evaluation and release pursuits (if necessary). The second pertained to pretrial practice, i.e. exploration of plea negotiations and, if unsuccessful, motions practice. The third endeavor involved trial preparation and presentation. If the trial proceedings produced an unsuccessful result, the fourth segment concerned preparation for sentencing proceedings. Finally, after sentencing, release pending appeal (which often was not resisted) and the appeal process were encountered.
Practice under the federal sentencing guidelines and the more recent bail reforms, however, has changed all of that.(fn1) Although commentators predicted that after these changes were instituted, postconviction mini-trials would become commonplace, the extent and complexity of post-trial proceedings was largely underestimated. Post-conviction pursuits, in many instances, have become more protracted and engaging than the trial itself. This article discusses the changes in defense practice under the federal sentencing guidelines, as well as the most recent bail provisions.
As unpalatable as it might be to defense advocates, one of the most critical issues to be addressed in federal criminal practice is whether the client is going to cooperate with authorities in prosecuting others, including relatives and close friends. Pursuant to federal legislation, Congress directed the U.S. Sentencing Commission and encouraged the federal courts to afford great weight to a defendant's substantial assistance to authorities in the investigation or prosecution of another who has committed a crime.(fn2) Such favorable consideration is to be awarded independently of sentence reduction for acceptance of responsibility and may even warrant a sentence below a statutorily mandated minimum.
Particularly in drug cases, because of the government's ability to recommend a sentence under mandatory minimums, cooperation must be considered at a very early stage and may temper tactical considerations. As might be expected, prosecutors are inclined to give greater weight to assistance provided at the early stages of the criminal process and might be more disposed to agree to pretrial release. Since a presumption of dangerousness attaches to most drug charges for release purposes, and the prospect of acquittal may appear remote, prospective cooperation may necessarily drive defense strategy.
Moreover, release and sentence concessions may be made available only to a select few in a multi-defendant case, and thus defense counsel may feel compelled to beat his or her colleagues to the prosecutor's door to cut a deal. Overall case evaluation related to pretrial release, the prospects of acquittal, a verdict on lesser charges, a comprehensive analysis of applicable sentencing factors and the likelihood of post-conviction detention all must be weighed at the earliest possible moment. Under the present sentencing and detention provisions, defense counsel should feel compelled to complete guidelines calculations before even contemplating a visit to the prosecutor's office so that informed discussions of the full range of sentencing factors is possible.
As noted, "substantial assistance" is separate and distinct from acceptance of responsibility.(fn3) The benefits arising from each may be quite disparate and must be evaluated separately in mapping out defense strategy. Acceptance of responsibility entitles the defendant to no more than a three-level reduction (unless disclosure precedes detection), whereas substantial assistance can result in a substantial downward departure and even a sentence below a statutory mandatory minimum, if applicable.(fn4) Substantial assistance,
The statute and cases seem to premise a reduction for substantial assistance on a motion by the government, but a prosecutor's lack of good faith in refusing to apply for the reduction may be subject to judicial scrutiny.(fn6) If a clear abuse of discretion in the government's failure to file a motion can be demonstrated, counsel should consider seeking judicial review.(fn7)
Acceptance of responsibility, on the other hand, may be awarded by the court despite the prosecutor's objection or inaction. Early cooperation, an admission of culpability, and restitution or some kind of reparation are the most common factors reviewed in determining whether responsibility has been accepted.(fn8) A plea of guilty does not assure the reduction, but it is certainly a factor which is weighed.(fn9) If the cooperation is particularly timely, an additional one-level reduction may be warranted.(fn10) On the other hand, a guilty plea without evidence of sincere contrition ordinarily will not gain the concession.
To skirt constitutional challenges, the sentencing guidelines provide that a defendant is not to be penalized for asserting the constitutional right to trial.(fn11) However, if a defendant continues to protest innocence or lack of culpability after a conviction, even after a plea of guilty, award of the sentence reduction will not likely be forthcoming.(fn12)
Unless the prospects of an acquittal are quite substantial, pretrial detention and the prospective application of the sentencing guidelines may propel the defense toward early consideration of a plea disposition.(fn13) Because of the draconian effects of the guidelines and detention provisions, and the relative impotence of trial judges to get around them, defense counsel is obliged to pursue a prosecutor's concession in seeking or foregoing the application of various sentencing factors. Thus, as stated above, counsel must be prepared to discuss the full range of applicable sentencing factors with confidence before meeting with the prosecutor.
The federal detention and sentencing scheme has shifted much of the discretion previously vested in the courts to the prosecutors. Although the Sentencing Commission has proffered the opinion that the guidelines do not make "significant changes" in former plea agreement practices, the institution of pretrial and post-conviction detention provisions and the rigidity of the guidelines have substantially altered prior...
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