We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SUMMONING THE SPIRITS

In law school, a cynical but wise professor told me that whenever someone argued you were violating the “spirit of the law,” that necessarily meant that you were not violating the letter of the law.

Ed Raifsnider learned that the hard way last week. Like many people with plea agreements, he reasonably expected the government to keep its word by recommending an in-Guidelines sentence. The AUSA literally did that, but Ed said, “the Government effectively recommended an alternative sentence by strongly suggesting the district court should not follow its formal recommendation.”

That’s hardly unusual. The government does that all the time, telling the court things like, “We are obligated by the plea agreement to recommend an in-guidelines sentence,” which is a dog whistle if ever there was one, communicating to the sentencing court that the government will provide the picket signs for an angry mob if the judge does not hammer the defendant, despite anything the plea agreement may say to the contrary.

But the Court was not very sympathetic to Ed. It found no breach, holding that “we do not suggest the Government can never breach a plea agreement by implicitly recommending a different sentence than the one it is bound to recommend by the agreement, but we do not believe this line has been crossed here.”

If there’s a line somewhere, we’re still waiting to see it.

United States v. Raifsnider, 2019 U.S. App. LEXIS 4443 (8th Cir. Feb. 14, 2019)

– Thomas L. Root