Published in The New York Times on August 19, 2012
Rachel E. Barkow is the Segal Family professor of regulatory law and policy and the faculty director at the Center on the Administration of Criminal Law at New York University.
By almost any measure, federal prosecutors wield too much power. Because many federal laws govern similar behavior and are written broadly, prosecutors commonly have multiple charges from which to choose. This means they typically have many sentencing ranges to choose from as well. Thus, they can – and do – threaten defendants who want to exercise their trial rights with charges that will carry longer sentences (sometimes decades longer) than the charges they will file if defendants plead guilty. On average, federal defendants who refuse to waive their right to a jury trial receive a sentence three times longer than those who plead. And with the prevalence of mandatory minimum laws, a prosecutor’s charging decision often dictates a sentence that a judge is powerless to avoid. It is no wonder 97 percent of federal convictions are the result of guilty pleas. Far from eliminating disparity by curbing judicial discretion, mandatory minimums simply shift power to prosecutors.
To rein in this power, Congress should no longer pass laws with mandatory minimum sentences. Far from eliminating disparity by curbing judicial discretion (their stated purpose), studies show that mandatory minimums simply shift power to prosecutors (who file charges with those mandatory minimums disproportionately against defendants of color).
Judges should scrutinize what charges a prosecutor threatens to bring if a defendant were to go to trial instead of plead, to ensure that the threatened trial charges do not carry a sentence disproportionate to the defendant’s conduct. Pleas must be voluntary, and some threats are unduly coercive.
And United States attorneys should make sure that the prosecutor who investigates a case and who would be responsible for taking it to trial does not make the charging decision. A fresh set of eyes should make sure that any threatened charges carry a sentence proportionate to a defendant’s conduct – – and are not a penalty for exercising the constitutional right to a jury trial.