Doug Berman at Sentencing Law and Policy last week highlighted an Iowa district court opinion in which U.S. District Court Judge Mark Bennett reduced a defendant’s sentence by 17 months as a remedy for prosecutorial misconduct.
The prosecution had entered into a plea agreement with the defendant where he was to plead to drug and weapons charges with a guidelines level of 25 after a downward departure of 3 levels for acceptance of responsibility. However, at the plea, in violation of their agreement, the prosecution argued that the defendant should instead be sentenced as a career offender, with an adjusted base level of 29 and criminal history category III, based on a prior DUI conviction. (The prosecution argued to the judge that the Defendant should be sentenced to significantly more time in prison than they had agreed to.)
Ultimately, the Court found that the prosecutor’s breach of the plea agreement constituted prosecutorial misconduct, after which the case was sent to Judge Bennett to determine what, if any, the remedy should be.
The prosecution, now represented by a different Assistant United States Attorney, argued that, even if the violation of the plea agreement was “clear” or “blatant,” it was not in “bad faith,” and was more in the nature of a “technical” violation . . .
Judge Bennett, calling the prosecution’s argument “frivolous and grossly inaccurate” and noting that this was not the first case of a prosecutors breach of a plea agreement in his district,
found that Dicus’s total offense level is 25 and that his criminal history category
is III, which results in an advisory United States Sentencing Guidelines range of 70 to 87
and sentenced the defendant to 70 months, the bottom end of the guidelines range. The judge noted that but for the misconduct he would have sentenced the defendant to the high end of the guidelines range due to aggravating factors such as the sale of drugs to minors by the defendant. The opinion reasoned that:
Granting no relief is also inappropriate, because it would do nothing to deter
prosecutorial misconduct or to give defendants an incentive to raise prosecutorial
misconduct claims. See, e.g., Sonja Starr,3 Sentence Reduction as a Remedy for
Prosecutorial Misconduct (hereinafter Starr, Sentence Reduction), 2 & n.10 (unpublished
draft, September 2, 2008; used by permission) (citing Guido Calabresi, The Exclusionary
Rule, 26 HARV. J.L. & PUB. POL’Y 111, 116-17 (2003), and Harry M. Caldwell and Carol
A. Chase, The Unruly Exclusionary Rule, 78 MARQ. L. REV. 45, 68-71 (1994), as
suggesting that the appropriate remedy for prosecutorial misconduct should be the
combination of direct sanctions against the police, such as fines, to deter misconduct, with
sentence reductions, to give defendants an incentive to raise misconduct claims).
Moreover, “[p]rosecutorial misconduct has been a widespread and widely criticized
problem in the U.S. criminal justice system for decades,” albeit one for which existing
remedies are ineffective, “largely because they are rarely invoked.” Id. at 4 & 1. For
example, as the Second Circuit Court of Appeals observed more than two decades ago,
“Given this Court’s unwillingness to use reversals as a means of disciplining prosecutors,
threats to do so seem unlikely to have much effect. As a practical matter, prosecutors
know that courts are reluctant to overturn convictions because of improper [conduct].”
United States v. Modica, 663 F.2d 1173, 1183 (2d Cir. 1981) (cited in Starr, Sentence
Reduction, at 13). The problem cannot continue to go unremedied by the courts, so that
some relief from prosecutorial misconduct is appropriate in this case.
The Court cites a paper by Professor Sonja Starr, Sentence Reduction as a Remedy for Prosecutorial Misconduct, which advocates for the use of sentence reduction as a remedy for prosecutorial misconduct. The reasoning is that the current remedies, reversal of a conviction or dismissal of charges, are never granted by courts and therefore there is no real deterrence.
Starr and Judge Bennett have a point – Courts rarely grant reversals, dismissals, or suppression as a consequence of prosecutorial misconduct. Prosecutors are rarely disciplined for ethics violations, and they are all but immune from civil liability or prosecution themselves. I don’t believe that sentence reductions will serve as an effective deterrent, however. I believe that all of the above would be the better deterrence for prosecutorial misconduct, such as Brady violations that can and do lead to wrongful convictions, but seeing as how none of that is happening, perhaps we need to start somewhere.