Holder Limits One Form of Trial Penalty, The Atlas Society | Ayn Rand, Objectivism, Atlas Shrugged

Here’s a nice surprise: I recently learned that the day before announcing his plans to resign, Attorney General Eric Holder actually took a step towards restoring the right to a trial.

Among the ways prosecutors can punish a defendant for insisting on a trial is by filing what’s called a “section 851 information.” This notice tells the court that the defendant has prior convictions—and once it’s filed, the mandatory minimum sentence the judge is required to impose if the defendant is convicted increases. In a memo dated Sept. 24 , Holder told his prosecutors that this enhanced sentence “should not be used in plea negotiations for the sole or predominant purpose of inducing a defendant to plead guilty.”

That’s a step towards justice by Eric Holder, though its value is diminished by the memo’s statement that it can be OK to withdraw a section 851 notice if the defendant provides cooperation . So the notice can still be used to encourage defendants to go along with what prosecutors want.

The memo asserts that it is “long-standing Department policy that ‘[c]harges should not be filed simply to exert leverage to induce a plea, nor should charges be abandoned to arrive at a plea bargain that does not reflect the seriousness of the defendant’s conduct.’” That sounds grand—but it reaffirms the kind of thinking Holder displayed in defending Aaron Swartz’s prosecutors : The plea bargain should be the sentence the defendant actually deserves. And that means any greater sentence he’s threatened with if he goes to trial is a sentence greater than the prosecution actually believes his crime justifies. It is, at least when the prosecution seeks it, a trial penalty—a punishment not for the underlying crime, but for demanding a trial. We saw that fairly explicitly in the Raj Rajaratnam case, where the prosecution justified asking for a higher sentence than other defendants who had committed similar crimes on the ground that the other defendants had "accepted responsibility and pled guilty."

Anything that diminishes the trial penalty or limits prosecutors’ power to impose one is a step in the direction of justice—of punishing only the guilty, and of punishing them only for their crimes.

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