Rejection of Plea Deal to Defendants in Ahmaud Arbery`s Death Exposes Power Struggle Between Federal Prosecutors and Judges

Rejection of Plea Deal to Defendants in Ahmaud Arbery`s Death Exposes Power Struggle Between Federal Prosecutors and Judges

The federal judge`s rejection of a plea deal by prosecutors in the case of Ahmaud Arbery`s death exposes a giant problem with plea bargaining in the federal courts: Prosecutors have tremendous power, while the judges have limited options.

From what charges to bring to what evidence the grand jury gets to see to what charges get dropped, federal prosecutors are given a tremendous amount of power when it comes to federal criminal cases. Perhaps the Supreme Court said it best:

There is no doubt that the breadth of discretion that our country`s legal system vests in prosecuting attorneys carries with it the potential for both individual and institutional abuse. Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978).

So who keeps federal prosecutors in check when it comes to plea bargaining in federal criminal cases? If you think it`s the federal courts, the rejection of the government`s plea offer to the defendants in the federal hate-crime trial in the Arbery case shows just how limited a federal court`s power is over the prosecutor. The only option the judge had was to either accept or reject the plea agreement. The judge couldn`t decide the sentence or whether the sentence would have run consecutively to the sentence in the state case.

If you say it`s the grand jury that prevents a prosecutor`s abuse of power by deciding which charges have merit, consider what Chief Judge Sol Wachtler of the New York Court of Appeals (the state`s highest court) said about grand juries:

A grand jury would indict a ham sandwich if that`s what [a prosecutor] wanted.

An en banc (full court) of the U.S. Court of Appeals for the Ninth Circuit called a grand jury “no more than a rubber stamp for the prosecutor.” United States v. Navarro-Vargas, 408 F.3d 1184, 1195, n.14 (9th Cir. 2004), see also United States v. Laurent, 861 F. Supp. 2d 71 (E.D.N.Y. 2011) (grand jury is a “machine of government expansion and caprice” subject to abuse of power).

What`s left to keep federal prosecutors in line? Not much.

Under Federal Rule of Criminal Procedure 11(c), titled “plea agreement procedures,” a federal prosecutor has the authority to negotiate a plea agreement with a defendant. This deal can stipulate that the government will not bring or dismiss certain charges, or that it will “agree that a specific sentence or sentencing range is the appropriate disposition of the case.” In addition, the parties can agree to lots of other terms, just like in a contract. In fact, federal courts view plea agreements as contracts and apply contract law to them.

Arguably, the most powerful aspect of federal plea bargaining is the federal prosecutor`s ability to dictate the sentence a federal judge must impose. This can be by way of the charges it brings, many of which carry mandatory-minimum sentences, or by way of a “binding” plea agreement with a specific sentence like the one the judge rejected in this case.

In effect, the government offered and the defendants accepted a disposition to the case that completely cut out the federal judge. If Judge Godbey Wood had accepted the plea agreement, she would`ve been required to impose a 30-year sentence that apparently would have trumped Georgia`s life sentence in some respects.

Most federal judges don`t have a problem with such a resolution to a case, especially one that avoids a trial. But the judge here wanted more control, and the only way she could get it was to reject the plea agreement. She wasn`t allowed to modify the agreement or even give her two cents on how it could be fixed. Rule 11 doesn`t allow that.

Rule 11(c)(5) provides the authority for a court to reject a plea agreement. But the court must also allow the defendant to withdraw a guilty plea and give a warning that the case could be decided “less favorably” than hoped if the guilty plea isn`t withdrawn.

Sixty years ago, before plea bargaining became widely accepted, the Supreme Court held that a criminal defendant doesn`t have the right to have his guilty plea accepted. Lynch v. Overholser, 369 U.S. 705, 719 (1962). Doesn`t that sound crazy? A guy wants to stand before the court and admit that he committed a crime, but the court doesn`t have to let him. Why?

Power. By giving a defendant the absolute right to plead guilty, it usurps the government`s power to control a criminal case. Sure it gives the court some power to decide how a case is disposed, but it really gives the prosecutor an extraordinary amount of power. What if a defendant wanted to strategically plead guilty to the charges filed before the government dug up more evidence that could affect the sentence or support more charges? That`s a big loss of power by the government.

Perhaps Judge Godbey Wood was moved by Ahmaud`s family, urging her to reject the agreement because they want the defendants to do their time in a Georgia State prison, where the conditions are much worse. It`s no secret the southern states have perfected the prison for punishment mentality (instead of the more widely accepted prison as punishment mentality). They pride themselves on being inhumane toward prisoners.

This raises the question for another day: Does “justice” require giving a victim`s family the revenge they demand?

For now, it`s important to note that the judge in this case had only a few options, while federal prosecutors held all the cards. This power-struggle between prosecutors and the courts occurs every day, with the judge often sitting in the middle as a useless pawn.


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