District Court embraces a sentencing approach to dealing with prosecutorial misconduct (and highlights the impact of effective scholarship)
I am pleased to report on a fascinating district court opinion issued today, US v. Dicus, No. CR 07-32-MWB (N.D. Iowa Sept. 24, 2008) (available for download below). Among the fascinating facets of the Dicus opinion is its incorporation of the insights of a new piece of scholarship (recently discussed here) by Professor Sonja Starr titled “Sentence Reduction as a Remedy for Prosecutorial Misconduct.” Here is how the Dicus opinion starts and ends:
At a sentencing hearing on September 9, 2008, I announced that I was reducing the defendant’s sentence from the high end to the low end of his advisory guidelines range as a sanction for the prosecution’s serious breach of the defendant’s plea agreement. I would otherwise have sentenced the defendant at the top of his guidelines range based on his sales of marijuana to minors, which was a factor not reflected in his advisory guidelines range. However, the Chief Judge of our district had already found the prosecution’s breach of the plea agreement to be prosecutorial misconduct, and I imposed the sentence reduction, at the defendant’s request, as the appropriate sanction for such serious misconduct. I now enter this memorandum opinion and order to memorialize more fully my rationale for granting a sentence reduction as a targeted remedy for serious and recidivist prosecutorial misconduct….
In this case, I find that a reduction in the defendant’s sentence, albeit one to the low end of his advisory guidelines range, when I would otherwise have sentenced him to the high end, is the appropriate remedy for the prosecution’s serious violation of the defendant’s plea agreement. Such a remedy provides both deterrence for the prosecution’s misconduct and an incentive to defendants to raise such misconduct. Such a remedy also serves the “interests of justice” and shows “appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty.” Santobello, 404 U.S. at 262-63. Finally, the reduced sentence in this case still serves the purposes of sentencing, upon consideration of the pertinent § 3553(a) factors, in that it is sufficient, but no greater than necessary, to achieve all of the appropriate sentencing purposes.