South Texas College of Law, Annotations (Houston, Tex.), Vol. 8, No. 7, March, 1980 Page: 3 of 8
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March 1980 - ANNOTATIONS — Page 3
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Prosecutors And Pre-Sentence Investigation
Fifth in a Series
by Kevin George
Staff Writer
Apart from being able to avoid
the thrust of a "real offense" by
agreeing to concede or not to
oppose the defendant's character-
ization of the offense, the prose-
cution at his discretion may
reduce the charge. This then
becomes the "offense of convic-
tion."
Here the prosecutor exercises
his power over sentencing in an
indirect fashion. Rather than
bargain explicitly about the sen-
tence the court will be asked to
impose, the prosecutor will bar-
gain on whether or not he will
reduce the principle charge (real
offense) against the defendant to
a lesser serious offense (offense
of conviction). From the defend-
ant's perspective, the primary
significance of the charge reduc-
tion process plainly is in its effect
on the sentence he will receive.
The question may then be
asked whether or not the proba-
tion officer's presentence report
is a means of preventing this
prosecutorial circumvention of
the judge's sentencing authority.
The effect of such investigation
would for all intents and purposes
be ineffective for two reasons.
One is that, as mentioned before,
the probation service normally
relies heavily upon the coopera-
tion of the prosecutor. Conse-
quently, they generally will over-
see evidentiary assessments
made by the prosecutorial arm.
Second, assuming that the proba-
tion service did learn of the facts
suggesting a more serious of-
fense, if the defendant challenged
the evidence, responsibility for
determining how vigorously to
defend the point would again rest
with the prosecution's office.
Under these circumstances,
there is no readily available
mechanism to guarantee the
integrity of the charging process.
This being so, the prosecutor has
substantial control over the type
of sentence the defendant will
receive.
The only alternative of check-
ing prosecutorial charging discre-
tion is to prohibit charge bargain-
ing and to require sentencing
judges to reject plea agreements
that are contingent upon dismiss-
al of a portion of the charges. The
propriety of such judicial weapon
under current law does not seem
to have been recognized. How-
ever, the judge does have a
legitimate authority to reject a
disposition made by an involun-
tary plea. Fed R Crim. Pr. §.11 (e)
(2).
Does the trial court have the
discretion to reject a plea on the
ground that the offense pleaded
to does not adequately reflect the
seriousness of the defendant's
conduct? The current state of the
case law indicates that the proper
recommendation of prosecutorial
and judicial discretion poses
considerable difficulties in the
context of charge-reduction plea
agreements. Under the reason-
ing of U.S. v Ammidawn 497 F 2d
615 (D.C. Cir. 1973), the trial
court would have to defer to the
prosecutorial judgment. In this
sense, the discretion of the
prosecutor to reduce the charge
is a function of his descretion to
plea bargain and his descretion to
dismiss. (U.S. v Cowan, 524 F 2d
504 (5th Cir. 1975).
The limitation placed upon
prosecutorial charging discretion
seems to apply only in the most
extreme of circumstances. Judge
Levanthal explained the circum-
stances under which the trial
judge is justified in rejecting a
charge reduction:
A judge is free to condemn
the prosecutor's agreement as
a trespass on judicial authority
only in a blatant and extreme
case. In ordinary circum-
stances, the change of grading
of an offense presents no ques-
tion of the kind of action that is
reserved for the judiciary.
...a dropping of an offense
that might be taken as an intru-
sion on the judicial function if it
were not shown to be related to
a prosecutorial purpose takes
on an entirely different colora-
tion....
U.S. v Ammidown,
497 F 2d at 619
(1973)
Under this reasoning, the judge
seems free to reject charge-re-
duction agreements thought to be
too lenient only when they appear
to serve no legitimate prosecu-
torial purpose. Thus, generally
speaking, there would appear to
be very few instances in which a
judge could properly reject a
charge reduction agreement on
grounds of excessive leniency.
For many years, plea bargain-
ing has been under attack as
being unfair to defendants who
must choose between forfeiting
their right to a trial and running
the risk of a higher sentence if
convicted after trial. At the other
extreme is the fact that prosecu-
tors, the officials who have most
at stake in maintaining the flow of
cases through the court, speed up
the process by offering light
sentences. Alschuler, Prosecu-
torial Role in Plea Bargaining, 36
U Chi. L Rev. 50-56 (1968). Thus,
at the expense of acting expedi-
tiously, policy decisions (such as
those mentioned earlier) of enor-
mous potential importance are
avoided.
The reality of the matter
indicates that if the prosecutor
did not have the power to trade
down charges for pleas or choose
not to use it, an ever larger
backlog of cases would occur. It
is with this understanding that
the American Bar Association's
Minimum Standards on Pleas of
Guilty has proposed that it "is
deemed appropriate for the pro-
secutor to tender concessions"
(3.1 (a)) and "for the court to
grant charge and sentence con-
cessions to defendants who enter
a plea of guilty...when the
interest of the public in the
effective administration of cri-
minal justice would thereby be
served" (§1.8a). This standard
has not gone unchallenged. The
National Advisory Commission on
Criminal Justice Standards and
Goals feels that to permit such
concessions would provide too
great an incentive for one inno-
cent defendant to waive his
opportunity to avoid conviction.
Thus, the standard would not
permit a defendant's willingness
to speed up the process by
pleading guilty to be considered
in imposing sentence. (Courts,
NACCJS§3.8)
The American Bar Association
has taken into account the
possibility for abuse in the area of
plea bargaining. It is for this
reason that it has proposed that a
prosecutor should disclose in
open court any agreement or
understanding that has been
reached regarding the plea or
sentence. A.B.A. Standards: Sen-
tencing Alternative and Proced-
ures §5.3 (d), 1968. The
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informality of the understanding
reached should not absolve the
prosecutor of this obligation.
The reason for this position is
twofold. First, it protects the
integrity of the proceedings and
reduces the degree to which plea
bargaining transfers sentencing
discretion from the court to the
prosecutor. Second, it provides
the court with relevant sentencing
information. This information is
used to enable a judge either to
determine that concessions
should be' given to encourage
such pleas or whether he thinks
such concession should be grant-
ed only when there is evidence of
repentence.
Naturally, a degree of friction
eminates from these require-
ments. The duty here imposed on
the prosecutor to present an
objective factual picture of the
defendant could be used to
present a disguised form of
sentencing recommendation un-
dermining the plea agreement
earlier reached. On the other side
of the coin, the prosecutor may be
tempted to protect a plea agree-
ment by withholding pertinent
information that, if disclosed,
could cause the court to reject the
agreement or deny sentencing
concessions that the prosecutor
believes are desirable to offer.
The A.B.A. has taken such
possibilities into account and
concedes that its primary objec-
tive in making these recommend-
ations is to see that justice is
done. To this end, it feels that the
prosecutor performs this function
best by providing such informa-
tion to the sentencing court.
Clyde L. Bounds
Law Library Consultant
373-0750
Total Client Service Library
Bancroft-Whitney Co.
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Rice, Elaine. South Texas College of Law, Annotations (Houston, Tex.), Vol. 8, No. 7, March, 1980, newspaper, March 1980; Houston, Texas. (https://texashistory.unt.edu/ark:/67531/metapth144395/m1/3/?q=Lamar+University: accessed June 3, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting South Texas College of Law.