I have blogged a lot about the college admission scandal prosecutions because they provide a high-profile setting for shinning a bright light on some ugly features of criminal justice in America. The Wall Street Journal editors this week have been eager to do such light-shinning as evidenced by these two notable new commentaries in its pages:
Authored by William McGurn, "Free Lori Loughlin: The feds are treating the actress as if she and her husband were Bonnie and Clyde." Some excerpts:
If convicted of all the charges federal prosecutors have piled up against them, Ms. Loughlin and her husband could be sentenced to as much as 45 years in prison. This is nuts.
The same operation that caught Ms. Loughlin also snared dozens of other high-powered people, including CEOs, lawyers and venture capitalists. They too are accused of paying fixer William “Rick” Singer either to cheat on their kids’ college entrance exams, to present them fraudulently for college admission as athletes, or both. But Ms. Loughlin’s celebrity status has ensured that she and fellow actress Felicity Huffman remain the face of the scandal for most Americans.
With this difference: While Ms. Huffman pleaded guilty, apologized profusely and served out her sentence (14 days, but released after 12 because it was a weekend) at the Federal Correctional Institution in Dublin, Calif., Ms. Loughlin and Mr. Giannulli are insisting, perhaps unwisely, on taking their case to a jury. Meanwhile, in the same way the sans-culottes jeered Marie Antoinette on her way to the guillotine, today’s equivalent — Twitter mobs and gossip sheets — are thirsting to see this icon of Tinseltown wealth and privilege cut down to size by a stint in federal prison.
Now, it may well be standard procedure for prosecutors to add new charges when their targets refuse to plead. But does anyone else think it a stretch to argue that two California residents bribing their children’s way into a private California university are committing a crime against the federal government? Or that the statutes she’s accused of violating, such as bribery or money laundering in connection with a program that receives federal funding, were really intended to go after people such as Ms. Loughlin?
All of which has yours truly hoping Ms. Loughlin and her husband prevail. Not because they are innocent. But because the case reeks of overreach, as well as my unease with the idea that the FBI and Justice are the vehicles to deliver fairness in college admissions....
There are many ways to punish Ms. Loughlin. Some of them have already happened even without a conviction: The Hallmark Channel severed all ties; Netflix will film the last season of the reboot “Fuller House” without her; and her daughters were forced to leave USC under humiliating circumstances. Ms. Loughlin, remember, is a nonviolent first-offender. By all means, stick her with a fat fine and community service. But it’s just overkill for federal prosecutors to be devoting so much of their time and resources to make sure this woman goes to prison.
Authored by Alan Dershowitz, "Most Plea Bargains Are Unconstitutional: Harsh punishments for defendants who exercise their right to trial violate the Sixth Amendment." Some excerpts:
When is a constitutional right not a right? When you’re punished for exercising it. If the government arrests or fines you for something you say, everyone recognizes a violation of the First Amendment, even though you had your say. Yet when prosecutors and courts impose massive punishments on criminal defendants for exercising their Sixth Amendment right to trial by jury, it’s considered business as usual — even by the Supreme Court.
In my own practice I’ve seen cases in which defendants declined a plea bargain, were convicted, and received sentences more than 10 times as severe as prosecutors had offered them. A doctor was offered one year if he pleaded guilty to Medicaid fraud and received 11 years at trial. He rejected the plea offer because he believed he was innocent and had expert testimony to back him up. In another case, two businessmen accused of financial fraud were offered sentences of seven years and sentenced to 80 years after a trial....
Or consider two actresses charged in the college-admissions scandal. Felicity Huffman received 14 days after waiving a trial. Lori Loughlin could face as long as 45 years (although likely less) if she exercises her right to go to trial. The prosecutor has been clear: “If it’s after trial, we would ask for something substantially higher. If she resolves it before trial, something lower than that.”
In justifying the practice, prosecutors and courts play word games, denying that a far harsher sentence is a “punishment.” Rather, they say, it’s what the defendant deserved for the crime, and the relative lenience of a plea bargain is a “reward” for saving the government the expense, inconvenience and risks of a trial. As the Supreme Court put it: “We cannot hold that it is unconstitutional for the State to extend a benefit to a defendant who in turn extends a substantial benefit to the State” (emphasis added).
Yet imagine if the government, instead of directly punishing disfavored speech, accomplished the same objective in a roundabout way by offering a tax rebate for people who waive their First Amendment rights. Any judge would see through the maneuver. So why do the courts invoke the same meaningless distinction when it comes to the right to trial?
Because more than 90% of defendants waive the right to trial, usually for fear of the trial penalty. If the penalty were held unconstitutional, it could overwhelm the system. But is that a good enough reason to trample a constitutional right? Under America’s Constitution, rights are the absolutes to which practical considerations must adapt. We can build more courthouses and appoint more judges and prosecutors to accommodate the right to trial. We can also decriminalize many actions that are today treated as crimes, beginning with drug use....
The time has come to end the unconstitutional trial penalty.
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