Federal sentencing has become a masquerade

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Rich Lord’s series on mortgage fraud prosecutions (May 25-26) exposes federal sentencing for what it is: a masquerade behind which a prosecutor’s caprice and factors bearing little relation to culpability drive the punishment a defendant receives. Those defendants who turn state’s evidence earn the lightest sentences, and those who have the temerity to insist on their right to trial receive sentences normally reserved for violent recidivists.

It is a mistake to suggest that the solution lies in assigning point values to cooperation and further restricting a trial judge’s ability to impose what she believes is a fair sentence. Instead, Mr. Lord’s article should be read in conjunction with a New York Times’ editorial of the same weekend, “End Mass Incarceration Now.” The Times points out that we have a federal guideline sentencing scheme created by politicians and prosecutors which makes cruel sentences the norm, even for nonviolent first-offenders. The Times focuses on drug offenders, but its message applies equally to first-time white-collar criminals, such as all the defendants in Mr. Lord’s article.

Prosecutor Brendan Conway’s commendable honesty suggests what lies beneath the lengthiest sentences: The system does not want to be bothered with the time and stress of trials. But trials are not a social evil to avoid. At trial, the community gets to evaluate the fairness and thoroughness of its government’s work. Under our current system of guilty pleas coerced by harsh sentences for those who dare trial and lose, the defendant who pleads guilty may benefit, but the public right to know and judge what its government does suffers.


The writer was a federal prosecutor and is a criminal defense lawyer.

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