Last week U.S. Attorney General John Ashcroft issued a Directive to all U.S. District Attorneys requiring them to seek approval of senior Justice Department officials prior to dismissing any charges against any criminal defendant.

He further ordered U.S. Attorneys to seek convictions on the maximum possible charges against defendants. He also ordered U.S. Attorneys to seek a Plea Bargain only when the defendant is providing substantial assistance in an ongoing investigation by the Department of Justice. 

In issuing these orders, the Attorney General stated that prosecutors should not be over-indicting criminal defendants in order to coerce them into taking a Plea Bargain. (See, U.S.A. Today, Tuesday, September 23rd, 2003). These sweeping Directives are a two-edged sword wielded with what appears to be both a deep conviction of fairness and a startling ignorance of the long-term affects of such policies on both U.S. District Courts and U.S. Courts of Appeals. Perhaps the best description of the policies I can attach is that they are motivated by a naive idealism. They are naive from the standpoint that the U.S. Court system does not have the physical facilities to accommodate all the trials and appeals that will be the result of prosecutors following these directives. They are idealistic from the standpoint that in many aspects, what Mr. Ashcroft has done will bring truth, honesty and forthright dealings with criminal defendants back into the criminal justice system, replacing many of the present practices which are perceived as inherently unfair by criminal defendants. 

In my essay, "Once You Are Accused," I discuss the unfair leverage that prosecutors obtain by over-indicting criminal defendants and how it can result in pleas of guilty by even innocent citizens. By issuing a directive requiring U.S. District Attorneys to seek permission from senior Justice officials prior to dismissing any charges against criminal defendants, and specifically stating the policy of the U.S. Department of Justice is that over-indictment will no longer be an acceptable practice, Mr. Ashcroft has brought truth back into the charging process, preventing the totally one-sided advantages prosecutors enjoy in the Grand Jury proceedings from being used by prosecutors to result in multiple, or more serious charges, that the prosecution knows cannot or should not be presented to a jury, under 
the facts and circumstances of the case, but which will give the prosecutor "throw-away" charges that can be used in plea bargaining to frighten the legally unsophisticated into quickly taking the plea bargain offered. This honesty in the plea bargain process is long overdue. 

On the other hand, at the same time Mr. Ashcroft has instructed U.S. Attorneys to seek the maximum possible charge under the facts of the case, not enter into any plea bargain unless the defendant is "substantially assisting" in an ongoing investigation, and to both appeal any downward sentencing departures made by U.S. District Judges, and report to the U.S. Department of Justice Judges who frequently depart downward from the U.S. Sentencing Guidelines. 

This latter directive, which is not mentioned in my opening paragraph, was issued two weeks ago by Mr. Ashcroft. 

The realistic long-term affects of these combined directives are discussed in my article "As Gulliver Slept," in the last few paragraphs. Criminal defendants will now be faced with Indictments charging what they are actually guilty of, if they are guilty, and with charges they know can be proven at a jury trial, and knowing if they are convicted they will face the maximum possible sentence with no possibility of leniency from the sentencing Judge. 

They will also be faced with entering a plea of guilty to the maximum possible charge, knowing no offer of a plea of guilty to a lessor charge will be advanced by the prosecution, and if they enter a plea of guilty the only possible break they may receive at sentencing is a downward departure for "acceptance of responsibility" authorized by the U.S. Sentencing Guidelines. They will also know that departure is usually only a few months less than the sentence the crime carries under the Guidelines. 

Criminal defendants will also know that at a jury trial the jury must be instructed on each and every lessor included offense of the maximum crime charged if there is any doubt as to any of the essential elements of the maximum charge as testified to by the prosecution's witnesses. If the 12 jurors are not convinced of any one of these sometimes numerous elements in the prosecutions case, beyond a reasonable doubt, the jury will be instructed they must return a verdict on the lessor included offense. 

Given the choice of entering a plea of guilty to the maximum possible crime and receiving the maximum possible sentence, minus a few months, or going to a jury trial where the government must meet it's burden of proof of each element, beyond a reasonable doubt, before a jury of 12 people who are frequently described as "blind, deaf and dumb," and obtaining a finding of guilt on a lessor offense, defendants will almost always choose to take their chances with the jury. After all, they really have nothing to lose at that point by going to trial. A few months, one way or the other, on a five, seven or ten year sentence, doesn't mean much when weighing the few months a guilty plea may save them for acceptance of responsibility, against a two, four or six year sentence on the lessor charge if the jury does not find the prosecution's case persuasive. 

Each of those criminal defendants who go to trial will then be entitled to an Appeal as-of-right from their conviction. In an appeal as-of-right the Court of Appeals has a duty to read the entire transcripts of the trial and review all pre-trial proceedings on evidentiary issues for plain error, meaning error defense counsel failed to identify or object to during the proceedings. In the year 2000 there were 6,746 criminal trials conducted by U.S. District Courts. (See, Sourcebook of Criminal Justice Statistics, 2000, NCJ-190251, p. 452, Table 5.38). Note this number includes trials of miscellaneous cases, hearings on temporary restraining orders and for preliminary injunctions, hearings on contested motions and other contested proceedings in which evidence is presented, as stated in the footnote to the Table. During the same year, 63,863 Guilty Pleas were entered by criminal defendants before U.S. District Court Judges. (See, Sourcebook of Criminal Justice Statistics, 2000, NCJ-190251, p. 431, Table 5.21). Ninety percent of all criminal cases are now disposed of by guilty pleas. This fact, and the crucial importance of the Plea Bargaining System, was given as the basis of the decision by the U.S. Supreme Court in United States v. Ruiz, 122 S.Ct. 2450 (2002), where the Court declined to require U.S. Attorneys to disclose impeachment evidence that could be used by the defendant against the prosecution's witnesses to establish an affirmative defense to the charges during plea bargaining negotiations, and holding only that exculpatory evidence going to prove factual innocence need be disclosed, prior to a guilty plea being negotiated. Id.. The Court held its decision was in the interest of maintaining the 90% rate of guilty pleas now obtained by the U.S. District Attorneys, which it described as crucial to our "system of justice." 

John Ashcroft's directives, combined, will result in many of the cases which would have been resolved by a plea of guilty now going to a full jury trial, because, as explained above, the criminal defendants will now have nothing to lose, and everything to gain, by demanding a jury trial and hoping the jury finds them guilty on a lessor included offense if the prosecution's case falters on anyone of the several essential elements needed proven. 

The results of the increased numbers of trials, and increased numbers of direct appeals from these trials, can be gleaned from my study, "All the King's Horses and All the King's Men..." It is also described at the end of my essay, "As Gulliver Slept." 

The vast majority of criminal defendants are low-level drug dealers who do not possess enough information about the people they obtain their drugs from to be of "substantial assistance" to federal authorities investigating drug smuggling or trafficking. The vast majority of criminal defendants charged in crimes other than drug related crimes have acted alone or in a manner that deceived other people, not in a manner that included other people in their criminal endeavors. They simply have no information of value to federal authorities warranting a "substantial assistance" departure under the U.S. Sentencing Guidelines.

There are 655 active U.S. District Judges and 312 Senior U.S. District Judges, the latter who are on retired status and who only work around two days a week, if that, in the 94 U.S. Districts of the United States. In the year 2000 they conducted 6,746 trials and hearings, and accepted 63,863 Guilty Pleas. The trials took up, on criminal matters alone, 20,970.5 work days. (See, Sourcebook, supra., p. 452, Table 5.38). These judges, during the same-year, also presided over 7,933 Civil Trials, which took 25,337.5 work days to complete. (See, Sourcebook, supra., p. 452, Table 5.38). The 63,863 Guilty Pleas, averaging 1 hour per plea, took 7,983 work days. Federal Probation termination hearings in 1999, at roughly 3 hours each, took up 1002 workdays. (See, Sourcebook, supra., p. 496, Table 6.11, stating 2,672 probation violation hearings were held in 1999). Add one day of research and trial preparation for criminal trials, three hours for reviewing charges, evidence, Sentencing Guidelines and Pre-Sentencing Reports and Recommendations in criminal trials and guilty pleas, and another 23,948 work days are gone. Add one hour to review the case prior to Probation Violation hearings, and to review the Probation Departments pre-sentence recommendations, and another 334 work days are gone. Criminal matters alone now use up a total of 60983.5 work days a year. 

Under John Ashcroft's directives, that could increase ten-fold.

On top of the criminal case load of the U.S. District Courts, as noted above, there is a substantial civil and prisoner Habeas Corpus case load. In the year 2000, 25,337.5 days were spent by U.S. District Judges in civil trials. (Table 5.38, supra.). 

One day of research and preparation for the civil trial adds another 7,933 work days used per year. In 2000, 1,192 Petitions for a Writ of Mandamus were filed by State and Federal prisoners. At two days each, this is another 2,384 work days used per year. In 1998 (there is a two-year litigation time period), there were 26,462 Federal and State prisoners Civil Rights and Prison Conditions suits filed. (See, Sourcebook, supra., p. 467, Table 5.61 (Mandamus); p. 467, Table 5.61, (Prisoner Civil Complaints)). 

The initial review for frivolous filings or Summary Dismissal, Rulings on Motions to Proceed In Forma Pauperis; Assigning the case to a Magistrate; reading the Magistrate’s Report and Recommendation; reading Objections filed to the Magistrate's Report and Recommendation; reviewing the evidence; researching case law; writing the Opinion; reading and researching Motions for Relief from Judgments filed under Civil Rule 60(B), and writing an Opinion and Judgment on those Civil Actions, generously takes three days per case. That uses an additional 79,386 work days over a two-year period. Combined, criminal and civil matters, in a two-year period of time, consume a total of approximately 272,662 work days, not counting State and Federal Habeas Corpus actions filed by prisoners. 

Habeas actions present another serious problem. 

There is approximately a two-year litigation time frame for Habeas Corpus cases. Since the numbers above are mostly generated to cover the time period between 1998 and 2000, I will use the numbers of State and Federal Habeas Corpus proceedings filed in the year 1998, which would have been decided in the year 2000. 

There were 27,446 Federal 28 U.S.C. §2255 Motions to Vacate (Federal prisoner Post-Conviction Motions identical to a State prisoners Habeas), Federal Prisoner 28 U.S.C. §2241 Habeas Corpus (which is required to be used to challenge sentencing execution errors and issues which cannot be raised in a §2255), and State Prisoner 28 U.S.C. §2254 Habeas Corpus actions filed in the United States District Courts. (See, Sourcebook,supra., p. 467, Table 5.61).

It takes the U.S. District Judge three-days to review the Habeas for Summary Dismissal (Habeas Rule 4); Rule on the Forma Pauperis motion, issue an order assigning it to a Magistrate for a Report Recommendation; read the State's Return of Writ; read the Magistrate's Report and Recommendation; read the Objections filed to the Report and Recommendation; read the Traverse filed to the Return of Writ; research law; write an Opinion; read the Application for a Certificate of Appealabilty; research law on that, and issue an Opinion on the Appealabilty Certificate. That takes up 82,338 working days. 

To rule on a Habeas Corpus, the Judge is also required to read the complete transcripts of the trial. This is where a problem arises even with the present case load of the U.S. District Courts as described above, and not including the increased case load John Ashcroft's proposals will cause. 

In "All the King's Horses and All the King's Men..." I calculated the numbers of days the trials lasted in 11,297 Habeas Corpus appeals, and from those calculations, the numbers of pages of transcripts involved in 11,297 cases. Using that same formula, and reducing the average number of pages of transcripts and lower court documents to an average of 975 pages per case, the 27,446 Habeas Corpus cases decided by the U.S. District Courts in the year 2000 would have encompassed 26,759,850 pages of documents that required a de novo review by the District Court Judge prior to the Judge being able to rule on those cases.

Due to there being substantially more U.S. District Judges and due to the other work done by District Courts being so time consuming (e.g. trials), which the U.S. Courts of Appeals are not required to perform, I was forced to work backwards in my calculations to arrive at the same point made in my study "All the King's Horses and All the Kino's Men..." 

Over a two-year period of time, the total work days that are available to U.S. District Judges to read the 26,759,850 pages of transcripts in the 27,446 Habeas Corpus cases filed in 1998, after subtracting the numbers of work days needed to perform their other duties are as follow: 



646 Active Judges x 260 work days =
167,960 wk. days.
300 Senior Judges x 130 work days = 
39,000 wk. days.


655 Active Judges x 260 work days =
170,300 wk. days.
312 Senior Judges x 130 work days =
40,560 wk. days.
Total Work Days--2 years =
417,820 wk. days.
Minus Civil & Criminal work days
-272,662 wk. days.
Minus Habeas Corpus processing
-82,338 wk. days.
Days available to read transcripts
62,820 wk. days.

Thus 26,759,850 divided by 62,820 available work days equals 426 pages of documents the U.S. District Court judges must read each day in order to perform a de novo review of the 27,446 Habeas Corpus cases filed in the year 1998, which would have been decided in the year 2000. This number will increase as more and more of the Court's time is consumed by the new criminal trials that will result from the policies announced over the past two weeks by Attorney General John Ashcroft whi1e on the surface this may not appear to be a daunting task, when it is assumed, as I believe it must be, that the Judge's review of these trial transcripts is continuously interrupted by trials, court hearings and the everyday common interruptions of office life, it stretches my belief that these cases are receiving the quality of review they deserve. 

When I further add the additional numbers of defendants who will be seeking a full jury trial due to the directives Attorney General John Ashcroft has issued, as are described above, and the tens of thousands of work days that will be consumed not only by the trials, but by the additional pre-trial motions and hearings, I cannot see any possible way in which the present U.S. District Court system, or the appellate system for that matter, can absorb the blow. 

I can comfortably read 300 pages of transcripts a day. By that I mean read them, stop and look up case law when I run across something that may be error, takes notes that are comprehensive enough to write a brief from, and sometimes, simply stop and gather my thoughts concerning what I read 100 pages earlier in relation to what I am reading right then. 

Reading trial transcripts to identify or analyze legal error is not the same as leisurely reading. It is outright grueling mental work. Readers may, either consciously or subconsciously, assume a Judge would have greater reading skills that I do, being a prisoner. I do not know what level the average Judge reads at, what I do know is my reading level is post-graduate (17.3), and in leisure reading I read at approximately 700 words per minute. You can draw your own conclusions from the simple fact I would be extremely uncomfortable with being required to read 426 pages of documents a day, knowing my opinion formed would decide the fate of another human beings life or liberty. 

Wherefore, I must reassert my conclusion advanced in "All the King's Horses and All the King's Men,” (finding appeals court judges had to read 866 pages a day), that as staffed and structured our Court system is inadequate to handle the numbers of cases before them in a manner instilling confidence in the outcome of the cases as having been carefully reviewed by an Article III Judge. 

Until next time this is Jim Love reporting From The Front Line.
September, 2003

James F. Love #329-475
Lebanon Correctional Inst.
P.O. Box 56
Lebanon, Ohio 45036

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