Twice this month, federal judges have rejected plea bargains in high-profile white-collar cases. The Houston Chronicle says sentencing experts believe prosecutors might alter their strategies in response.
On April 7, Judge David Hittner in Houston refused to accept a five-month prison plea deal for Lea Fastow, wife of ex-Enron CFO Andrew Fastow. Facing the prospect of a sentence more than twice that, she withdrew a guilty plea to a tax charge and is headed to trial. Last week, Judge Sylvia Rambo in Harrisburg, Pa., rejected a similarly structured plea from former Rite Aid CEO Martin Grass on two conspiracy charges in an accounting scandal. Prosecutors had promised him eight years in prison, but the judge said she’d sentence him to between nine and 10 instead.
What the cases have in common is that both employed a seldom-used plea bargain rule that takes punishment options away from federal judges, who have already lost discretion to federal sentencing guidelines. Under this rule, the judge must agree to the specific sentence proposed or the defendant can back out. “I think we’ll see a decline in the use of this already seldom-used plea bargain rule,” said Kirby Behre, a former federal prosecutor and author of a book on federal sentencing. He said prosecutors are more likely to simply rely on classic plea agreements in which the accused agrees to the maximum penalty for one or two offenses.
Law Prof. Frank Bowman of Indiana University in Indianapolis said it’s easy to assume many federal judges are eager to refuse to grant prosecutors and defendants a break on some lower-end plea bargains. Bowman said the judiciary is irritated that prosecutors are “staking claim to ever greater sentencing authority” while trying to check judges who waver downward from the guidelines.