All prosecutors are the same, right?
In the United States federal system, there are two main prosecutorial entities: state and federal. Do they approach cases the same way?
ABOUT TEN days ago, after the Sidney Powell entered her guilty plea to several misdemeanors associated with the Fulton County District Attorney’s prosecution of Donald Trump and others in connection with the former President’s efforts to reverse the 2020 election results, I saw an article questioning the sentence Powell received. The journalist spoke with defense attorneys who represented some of the people charged with entering the Capitol Building on January 6, 2021. The attorneys—and the journalist—expressed dismay at the lenient sentence Powell (and, had they occurred in time, the sentences of Kenneth Cheseboro and Jenna Ellis) received compared to the sentences of those who entered the Capitol. While there are valid reasons underlying their dismay, they left out a very important but little known variable that likely had a significant influence on the sentences.
Federal and state criminal prosecutors are different. Having worked in both systems, I had a front-row seat in both systems. They prosecute different crimes, in different courts, with different volumes, in different cultures, and different perspectives. These differences contribute to different sentences.
State and federal prosecutors handle different types of crimes. State prosecutors primarily handle mala in se offenses. These are acts which are, in and of themselves, considered bad, including murder, theft, and assault. No one talks about legalizing these things. State crimes also tend to be reactive, meaning that prosecutors handle cases brought to them by the police once the police make an arrest. Conversely, federal prosecutors handle malum prohibitum offenses that are often illegal only because the government says so. These can include environmental regulations, drug offenses, weapons offenses, and immigration offenses. Often, people disagree about whether such crimes should be enforced, giving prosecutors significant discretion. Fedeal prosecutors also work on proactive cases, meaning they work cooperatively with federal law enforcement to build cases then make an arrest. This gives federal prosecutors more control over their caseload. Of course, these are generalizations and overlap between state and federal occurs.
The fact state and federal prosecutors work in different courts is obvious but hides important differences. State courts are busy and crowded. They are functional to deal with the volume of people and cases. In some courtrooms, the prosecution and defense sit at the same table, across from each other. This would not happen in a federal court. Federal courtrooms, especially older ones, are magisterial, serene, formal, and spacious. In one case I handled in federal court, in one of the smaller, less intimidating court rooms, the local police officer testifying froze, forgetting everything that happened. While he had testified in many state cases, this was his first federal experience. As he explained later, the feel of the federal court overwhelmed him.
A third critical difference is the caseload volume. State prosecutors handle five to ten times more cases than federal prosecutors. This means that state prosecutors must act quickly and decisively. They develop routines and processes to normalize the cases, making resolution quicker and easier. By handling fewer cases, federal prosecutors can devote more time and effort to each case. They can scrutinize their cases and find any potential weak spots. By handling matters proactively, federal prosecutors include causes under investigation in their caseloads. This creates less caseload pressure. The federal courts are not as overburdened as their state counterparts.
All of this leads to different prosecutorial cultures. State prosecutors are case processors. Cases come in, get categorized and are resolved in as little time as possible because new cases arrive everyday. It is not unusual for a state prosecutor to walk into court with a stack of files and be responsbile for handling them based on a cursory review. The cases often present similar fact situations. There are only so many robbery scenarios. There are only so many assault scenarios. Federal prosecutors, on the other hand, know their cases intimately. They have worked with the case since the investigation. They have collectively discussed and considered possible defenses. They have also considered whether the case meets the Justice Department’s standards for prosecution. Is it a federal case? In short, federal prosecutors are more case managers than case processors.
This means that state and federal prosecutors take different perspectives on their cases. State prosecutors, who do not have as much discretion over their case load, understand that acquittals are part of the process. Resolving a case through a plea means one less case to handle. They also accept lesser sentences. Prison sentences are reserved for the most serious offenses. Federal prosecutors, who have much more discretion, prioritize sentence length. The longer the sentence, the more valued the case. At our quarterly staff meetings as a federal prosecutor, there would always be a section where the longest sentences were announced. Acquittals were rare because federal prosecutors would ensure guilt before charging. Anything else was seen as a waste of time.
How does all of this apply to those pleading guilty in the Georgia RICO case compared to those pleading guilty in the federal cases of those who invaded the Capitol? One preliminary note: we cannot compare to those who went to trial. Going to trial will result in not getting a benefit from accepting responsibility. The Georgia prosecutors are more conditioned and are more willing to negotiate than their federal counterparts. They are also used to more lenient sentences. Even though no longer mandatory in federal courts, the federal sentencing guidelines also mandate longer sentences. The Georgia RICO case, itself, also is different from the federal prosecutions. The Georgia case is a comprehensive whole. The lawyers entering guilty pleas will enhance the evidence against other defendants who go to trial. The federal cases are solitary. One does not relate to the others.
To truly understand whether those who pushed the false narrative of a stolen presidential election receive an equivalent punishment to those who were inspired to act on that false narrative, we must wait unti the federal cases conclude. The pending District of Columbia case against Donald Trump is the best one to compare apples with apples. We also wait to see if prosecutions will occur against the mid-level people, such as Sidney Powell, in the federal system. Until these things happen, however, we cannot truly compare the outcomes. The Georgia RICO case is completely different from those who stormed the Capitol on January 6, 2021 if for no other reason than it is a state, rather than a federal, case.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!
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