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The Use and Abuse of Power by Prosecutors (Justice for All)

This is a time that millions of Americans are righteously speaking out against our greatly flawed system of “criminal justice” (among other things) most recently evidenced by the horrific killing of George Floyd. Most thoughtful Americans recognize that systemic racisms stains nearly the whole fabric of our culture, but it is perhaps nowhere more obvious than in the enforcement of our criminal laws. And while necessarily robust changes may prove hard-won, recognizing and redressing specific flaws now is necessary to effect incremental changes immediately.

The full enforcement of our laws necessarily implicates individual judgments made by women and men who have taken a “sworn oath” which is, at its essence, to “render justice for all.” The color of one’s skin, their religious affiliation, their sexual preference, and so on should play no role, in criminal justice since “justice is blind.”

As criminal defense attorneys, we cannot but focus on the roles played by our adversaries:  prosecutors.

Prosecutors wield tremendous power. They act as the government—local, state, or national—and bring the weight of that government to criminal charges against individuals and entities, which they do for the explicit purpose of taking away those individuals’ or entities’ liberties, as directed by legislation. They decide whom to charge, how to charge, what sentences the government will seek for their convictions, and what, if any, plea offer will be made. At every turn, the choices made by these women and men carry with them the potential to decimate lives, families, and communities in the pursuit of “justice.”

In making such consequential choices, these women and men are armed with unknowably complex and densely worded criminal codes prescribing the varying extents to which all manner of socially undesirable conduct may be punishable. These mammoth bodies of “criminal conduct” enable prosecutors to charge individuals with a wide array of offenses, often carrying broad degrees of possible if not mandatory punishments, for the same underlying acts. And those multiplicities of available charges and accompanying penalties empower prosecutors to impose truly enormous “trial penalties” on criminal defendants, inflating both the risks of conviction and the costs of defense, thereby distorting both sides of a criminal defendant’s cost- benefit analysis in the face of a potential plea. And worse still, the wide menu of available charges from which to choose allows prosecutors—however consciously or unconsciously—to effect different results for the same conduct, based upon race, religious affiliation, sexual orientation, perceived social status, wealth, political connections, and all manner of other considerations which have nothing to do with justice.

Prosecutors’ vast powers and toolkit afford them great discretion with the choices they make in any one case, and this freedom means that their personal idiosyncrasies—whether of duty to fairness, empathy, righteousness, or animus, bias, judgment, or plain weakness—have outsized impacts on how the government will treat a given subject, target, or defendant. This makes possible the aggressive pursuits of marginalized persons in the absence of concrete evidence, as with the Central Park Five, or the securing of soft landings for predacious monsters like Jeffrey Epstein. While such cases may be outlier examples, they are not as uncommon as they should be and they portend to the systemic inequalities which we all know to be true.

While many of these complaints of the criminal justice system might be better lodged upstream
with the heavy-handed legislatures for their failure to invent let alone utilize functional means of
deterrence other than overly-long prison sentences, prosecutors can scarcely be called innocent
and cannot hide behind the shield of “just doing their job” and seeking justice. In many
instances, the positions taken by these women and men are at odds with the plain intent of the
laws upon which their positions are ostensibly premised, and which fly in the face of their
“sworn duty” to seek justice for all.

A specific example of this cruel and egregious harshness through choice has arisen in response to
the ongoing COVID pandemic and the havoc it is wreaking within federal prisons.
Unsurprisingly, the reality of an outbreak within a prison has led many federal inmates to avail
themselves of the courts and seek greater safety by asking for early “compassionate release”
from incarceration. Before the enactment of the First Step Act of 2018 (“FSA”), such requests
had to be brought by the Bureau of Prisons (“BOP”) on an inmate’s behalf, but the FSA
explicitly enabled inmates to do so themselves if the BOP denied or failed to respond within 30
days of their request that the BOP bring that motion on their behalf. However, seemingly in
reaction to the onslaught of compassionate release motions in the face of a deadly pandemic,
prosecutors in U.S. Attorney’s Offices (“USAOs”) in some districts (including New Jersey),
have begun inserting in defendants’ plea agreements language that would significantly impair or
waive those defendants’ abilities to bring requests for compassionate release themselves.

Nothing within the meaning of “justice” can explain these waiver clauses. Rather, they seem
motivated only by cruelty or a tone-deaf desire to minimize possible future paperwork. If
nothing else, these waiver clauses show a clear lack of compassion and appreciation of the
possibility that the justice prosecutors purport to serve might one day require an inmate’s
compassionate release if faced with significant health or family emergencies which cannot be
forecast at the time of sentencing.

Fortunately, defense attorneys and at least one court have recognized this plea language for it
what is, a callous indifference to legislative intent and attempted usurpation of courts’ authority
to show compassion when tragedy strikes after a defendant’s sentencing.

The observant court is the Northern District of California, which, in last month’s opinion in
United States v. Osorto, flatly rejected a signed plea agreement due to its inclusion of the
following language:

I agree not to move the Court to modify my sentence under 3582(c)(1)(A) [“compassionate release”] until I have fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring such a motion on my behalf, unless the BOP has not finally resolved my appeal within 180 days of my request despite my seeking review within ten days of each decision.  [U.S. v. Osorto, No. 19-cr-381-CRB-4 at *2 (N.D. Cal. May 11, 2020) (emphasis
added).]

The language in the Osorto plea agreement would have added as much as 150 days, and possibly more, to the period an inmate would have had to wait between submitting a compassionate release request to the BOP and ultimately moving the court for the same relief due to the BOP’s failure or refusal to do so. Under the Osorto plea language, if the BOP failed to act on an inmate’s request, as it often does, that inmate, who might be facing an immediate health or family crisis, would have to wait nearly half a year before seeking compassionate release from the courts.

Happily, the Osorto court rejected it, finding that language “unacceptable" since it would
“undermine[] Congress’s intent in passing the First Step Act” and was, simply, “inhumane.” Id.
*5.

The Orsoto prosecutors should not have needed a federal judge to tell it as much. Compassionate
release motions, whether brought by the BOP as originally intended or by an inmate under the
FSA, require that the court find that “extraordinary and compelling reasons” warrant modifying
or reducing a defendant’s sentence. The plain language of that phrase contemplates changes in
circumstances between the time of the motion and the time at which the sentence was originally
imposed. These circumstances can be an inmate’s deterioration in health, a family emergency
necessitating an inmate’s caretaking and/or income-earning, or, as here, the emergence of a
deadly pandemic to which an inmate is acutely susceptible. The USAO’s attempted policy of
waiver or delay of these rights pre-sentencing is, as the Osorto court wisely recognized,
“appallingly cruel,” id. *8, and akin to a deal with the devil:

It is no answer to say that Funez Osorto is striking a deal with the Government, and could reject this term if he wanted to, because that statement does not reflect the reality of the bargaining table. … As to terms such as this one, plea agreements are contracts of adhesion. The Government offers the defendant a deal, and the defendant can take it or leave it. … If he leaves it, he does so at his peril. And the peril is real, because on the other side of the offer is the enormous power of the United States Attorney to investigate, to order arrests, to bring a case or to dismiss it, to recommend a sentence or the conditions of supervised release, and on and on. … Now imagine the choice the Government has put Funez Osorto
to. All that power—and the all too immediate consequences of opposing it—weighed against the chance to request release in desperate and unknowable circumstances that may not come to pass. That Faustian choice is not really a choice at all for a man in the defendant’s shoes. But the Court has a choice, and it
will not approve the bargain.

[Id. *9 (citations omitted).]

Sadly, there have been numerous examples of these sorts of plea agreements in the District of
New Jersey, and at least some are even worse than Osorto’s, because they entail outright waiver
of the right to apply for compassionate release and not just a 150-day delay in exercising it.

These waivers, not yet scrutinized by courts in the District of New Jersey, are yet another unconscionable abuse of prosecutorial choice, plainly evidencing motivations which are utterly at odds with the supposed aim of their offices, which is—not that they ought need be reminded—doing justice.

Justice means something other than obtaining convictions wherever possible and advocating for overlong sentences that will do more harm than good, let alone doing so to differing degrees based upon something like skin color. And while abusive prosecutors share blame with legislatures, law enforcement, and at times even judges and defense attorneys, the women and men who wield the power of prosecution must remain circumspect of their options and the foreseeable impacts of their choices. They must all remember the “sworn duty” to seek justice for all.

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