Let’s put aside whether we really want cheating on a test or lying on a resume to become a federal crime. And let’s also put aside whether we really want cheating on a test to result in federal prison time. A larger problem with the criminal justice system is being exposed with the college admissions scandal — federal prosecutors are bullies. As we are seeing in the college admissions case, they bully defendants to plead guilty in at least 5 ways:
Splashy press releases. Press releases and press conferences are now standard with high profile federal indictments. This is done on purpose to overwhelm and embarrass the target, without much regard for the truth. One need look no further than the breathless — and utterly false — allegations of human trafficking in the Robert Kraft case or the panicky accusations of malware in Mar-a-Lago. Whoops. So sorry for that, the feds say later. But the damage has been done. It’s impossible to put the toothpaste back into the tube. Not only are jurors prejudiced, but even friends and family will start to abandon ship.
{mosads}Arresting with the SWAT team instead of allowing self-surrender. Can anyone give one legitimate reason why anyone in the college admissions scandal was arrested instead of giving the chance to surrender? The truth is that it’s done as a show of strength, a bully tactic. I’m stronger than you and here’s a taste of what I will do to you. Even though Felicity Huffman knew about the investigation, seven armed federal agents arrested her at her home at 6 a.m. This is a common — and absurd — practice with no legitimate purpose in this case. Indeed, the feds tried to arrest Lori Loughlin, but she was not home (her husband was arrested in the raid). Instead, when she heard of what was going on, she made arrangements to surrender and there was no incident.
Asking for no bond or extremely high bond amounts. There is zero risk of danger or flight from either Loughlin or Huffman. Yet, the government asked for and received bond in the amount if $1 million for Loughlin and $250,000 for Huffman. Huffman is only accused of paying $15,000. And they are the lucky ones. Six out of ten people in United States jails — almost 500,000 people — are in jail awaiting trial because they can’t afford their bond. This costs taxpayers $14 billion a year. And for no good reason. It’s just a pressure point to break down individuals to plead guilty.
Threatening more serious charges and higher sentences. The tactic is plead or we will crush you. That’s the message prosecutors send. So Huffman pleaded guilty and is facing a 4-month sentence though she will ask a judge for probation. But Loughlin had the temerity to want to at least look at the discovery and explore whether there are legal or factual defenses, so the government did not waste any time in hammering Loughlin with additional charges of conspiracy to commit money laundering. Even innocent defendants will plead guilty to a 0-4 month sentence to avoid facing the risk of years in prison.
Threatening charges against family members. In other words, “Plead guilty or your family will pay!” Criminal defense lawyers across the country can empathize with this threat because it’s frequently made by federal prosecutors. And in this case, prosecutors have sent target letters to some of the adult children of people charged. The message is clear — if you plead guilty and fall on the sword, we will not go after your kids. Shame on prosecutors for using those kinds of threats to force guilty pleas.
Our criminal justice system was set up so that judges could act as a check on the legal sufficiency of a federal indictment while juries could act as a check on the factual sufficiency on such a case. By bullying defendants into pleading guilty, judges and juries are wrongly cut out of the process. Even if you believe that these are the cases that belong in federal court and that also warrant federal prison (we need to talk!), the tactics being used to force these parents into pleading guilty are offensive.
David Oscar Markus is criminal defense attorney at Markus/Moss in Miami. He is a magna cum laude graduate of Harvard Law School. He tries criminal cases and argues criminal appeals throughout the country. Follow him on Twitter @domarkus.