When A Little Gets More And More: Prosecutors And Prison Time
What are we really accomplishing?
The Supreme Court’s decision in Dean v. United States on Monday, which Joe Patrice wrote about in these pages earlier this week, got me to thinking about marginal benefits and how prosecutors think about punishment.
How much prison time is enough, and how does a prosecutor decide that?
This can be hard to do. To be sure, federal prosecutors have a starting point — the federal sentencing guidelines. As most readers of this column will already know, the guidelines establish various sentencing ranges for various crimes, as well as a wide variety of enhancements. (Can you say “loss table”?) Even though they have been voluntary for more than a decade now since the Court’s decision in Booker, they are almost always the starting point for how much jail time any prosecutor thinks he should ask for. But after that point, it can get a little messy.
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The Dean case is a good example of this. In Dean, the defendant and his brother robbed 2 drug dealers in 2 weeks. The first drug dealer does not appear to have been injured, while the second drug dealer was pistol whipped. No one else, according to the Court’s opinion, was hurt.
Both Dean and his brother decided to go to trial, possibly because they reasonably figured the complainants would have credibility problems. Unfortunately, that was a bad bet. Dean was convicted of multiple robbery counts and, possessing and aiding and abetting the possession of a firearm during a crime of violence, a violation of 18 U.S.C. Sections 2 and 924(c).
And 924(c) is where the action is. It imposes a five-year mandatory minimum for the first offense, and a 25-year mandatory minimum for the second offense. Given that he Dean committed two separate crimes, that added up to 30 years of mandatory time.
You might think that 30 years of mandatory time for robbing two drug dealers would be enough. After all, Dean was 23 years old when he was arrested, so he would wind up being in jail until his 50s — at which point his inclination for violence would likely have plummeted.
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But that wasn’t enough for the government. Relying on an interpretation of the guidelines that the court unanimously rejected (and the Chief Justice all but mocked), the government wanted even more time on top of that. The judge ultimately varied downward from the 84- to 105-month guidelines range and imposed a total sentence of 400 months — 40 months more than the mandatory minimum, and more than the one day the judge wanted (but didn’t think he could) give.
Think about that for a second. What is the meaningful benefit of incarcerating someone for 30 years versus 34 years and 4 months? What will he not have learned by the 30th year? Will some other defendant somewhere else think to himself, “Well, I would totes do this robbery if I were only going to get 30 years. But 34 years and 4 months? I wonder if McDonald’s is hiring.” That seems unlikely.
To be sure, it’s important to punish and incapacitate people who are dangerous to other people. I also do believe in the deterrent value of jail, although I rarely think long prison sentences are necessary to achieve that in white-collar cases.
But I often wonder why so many prosecutors always seem to need more jail time. Why, in this case, wasn’t 30 years enough for the government? What could the prosecutor have possibly been thinking? After all, the people who were robbed weren’t innocents — they were drug dealers. Yet the government still thought 30 years wasn’t enough.
Consider some recent, high-profile white-collar cases. In the Mathew Martoma case, the government asked for at least 8 years. He got 9 years. In the Andrew Caspersen case, the government asked for at least 15 years. He got 4. In the Raj Rajaratnam case, the government asked for 24 years and 5 months — the kind of bizarre number only the guidelines could generate. In the end, he got 11 years.
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What accounts for the sometimes yawning gap between what prosecutors ask for and what judges ultimately impose? How much do prosecutors think about what these numbers actually mean, and whether those extra few months or years are worth it? To put it another way, what do they talk about when they talk about prison time?
According to the Bureau of Prisons, the average annual cost of incarcerating someone in 2014 was $30,619.85 per year. Is it worth spending, in Mr. Dean’s case, an extra $100,000 so he can spend another three-and-a-half years in prison? What about for Martoma, Caspersen, or Rajaratnam?
I don’t think there are always easy answers to these questions. (Except in Dean’s case. I mean, come on — it’s 30 years.) My intent is to get a prosecutor or future prosecutor who might be reading this to think about what prison time means — when is enough enough? It’s always easy to ask for a few more months, or a few more years.
But sometimes it’s important to take a step back and think why that matters. Bigger numbers don’t actually equal bigger wins, no matter how tempting it can be for prosecutors to think that.
When was the last time you heard a prosecutor brag — and not regarding a cooperator — about how he convinced a judge to go a little easier? And why is it so hard to imagine that?
Justin Dillon is a partner at KaiserDillon PLLC in Washington, DC, where he focuses on white-collar criminal defense and campus disciplinary matters. Before joining the firm, he worked as an Assistant United States Attorney in Washington, DC, and at the Civil Rights Division of the Justice Department. His email is [email protected].
