On the Bias

I almost never comment, but I read here every day and have so much enjoyed sharing this space with all of you! Would someone kindly DM me with the site where I can find you all again? Thanks so much!

Yes, because agreeing to plead guilty is just the first step. The next step is actually pleading guilty in front of the judge. That will be a public proceeding. In addition, if there’s a plea agreement, it will be filed with the court just as motions are. If Josh pleads guilty, the plea proceeding won’t be, or at any rate shouldn’t be, a quick, nothing-to-it hearing. That’s because the judge is required to question Josh to make sure that he understands what he’s doing, that he understands what the consequences are, and that he’s not being coerced. There are several parts to that. First, the elements of the crime — what a person has to do to be guilty of the crime — will be listed (usually the prosecutor does this), and Josh will be asked if he understands them. A description will be read of what he himself did that makes him guilty of the crime, and he will be asked if he did those things. Next, the mandatory minimum (if any) and statutory maximum sentences will be listed, and he’ll be asked if he understands that he must be sentenced to at least the mandatory minimum and that he could, in theory, be sentenced to as much as the statutory maximum. If there’s a plea agreement, the judge will ask if he understands that the judge will make an independent decision about what the sentence will be, no matter what’s in the agreement (unless it’s one of those rare agreements that binds the judge, in which case the judge will have to agree to be bound by it). Josh will then be questioned to make sure that his plea is truly voluntary: that there are no secret agreements, that he isn’t being forced to plead guilty. Finally, the judge will ask how he pleads to whatever he has agreed to plead guilty to, and Josh will say, “Guilty.” And then the judge will accept the plea. At that point, Josh will have been convicted of whatever crime he has pled guilty to, and the judge will set a sentencing date, typically ten to twelve weeks out.

Yes, but it’s not as much as you might think. In the federal system, if you behave well you serve 85% of your sentence. Except that the way the Bureau of Prisons calculates 85%, it’s actually 87%.

You’re right that a plea agreement is usually just between the prosecution and the defense. (Not always, there’s a form of plea agreement in federal court that binds the judge, but it’s rare and the judge has to agree to accept it.) Given that, your thought about the pros and cons of pleading guilty sounds logical, but it isn’t actually the case, at least in federal prosecutions. There are generally huge advantages to pleading guilty. First, remember all those charts that have floated around that show sentencing guideline ranges, with the person’s criminal history on one axis and the offense characteristics on the other? Just as there are enhancements that send your offense characteristics calculation through the roof, there are (many fewer) offense adjustments, which lower that calculation. Pleading guilty is one of those adjustments — it’s called acceptance of responsibility — and at Josh’s level it would probably mean a three-point decrease in his offense level. That would significantly lower his guideline range. And although judges don’t have to sentence within the guideline range, the range is supposed to be a starting point for their sentencing calculations, and at least in my old district it was usually the ending point as well. If that’s also the case in Josh’s district, all things being equal Josh’s sentence would be lower if he pleaded guilty than if he were sentenced after trial. Second, a plea agreement may include the prosecution’s agreement to drop certain charges, which, again, could lower the person’s guideline range. It’s true that there are ways that dropped charges can sneak back into a sentencing calculation, but it’s not common. In the same way, the agreement could include a requirement that the prosecution not argue for certain sentencing enhancements or not argue against certain sentencing requests that the defense might make. Third, although the judge isn’t required to sentence in line with the plea agreement (unless he or she is, see above), the agreement in practice carries a lot of weight with most judges. Which makes sense — why would anyone give up the right to a trial if they knew that the judge would probably do whatever anyway? So even a plea agreement that doesn’t formally bind the judge could give Josh some degree of security about his sentence. Of course the usual disclaimers apply: Josh might be acquitted at trial; if he’s convicted, whether by plea or at trial, the judge might do something unexpected at sentencing; I don’t know anything about what generally happens in Josh’s district; it’s been several years since I practiced and things might have changed even in my own district; I haven’t read any pleadings or orders in Josh’s case, and on and on. But generally Josh would be looking at a lower sentence if he pleaded guilty than if he went to trial and were convicted.

I haven’t seen any of the judge’s orders and don’t know the significance of the October 18 date (which, as it now appears from the quoted bit above, may not even be part of an order), but if Josh decides to plead guilty, he can do so at almost any moment. Whether he pleads after reaching an agreement with the prosecution or pleads without an agreement (“pleading open”) after the prosecution has withdrawn its offer is a different issue, but I’m not aware of any authority that the judge has to prevent the prosecution from negotiating a plea agreement after a certain date — on the contrary, the law is clear that judges aren’t allowed to insert themselves in plea negotiations other than encouraging the parties in general terms to come to an agreement.

Sorry, there may be a misunderstanding, but Josh will always know what’s in his plea agreement. His lawyers are ethically required to explain it to him, and before the judge accepts the plea he or she will question Josh to make sure he understands what he is pleading to and what sentence he faces. That questioning is required under the Federal Rules of Criminal Procedure (Rule 11, to be precise). If Josh pleads guilty, he won’t be pleading blind.

No sweat! We’re good.

Perhaps you’re drawing on your experience in state court? In federal court, supervised release is a mandatory part of sentencing and has been since the Sentencing Reform Act (1987). It’s the portion of a person’s sentence that begins after he’s released from custody. It’s imposed in CP cases just as it is in other felony cases; in fact, in the district in which I practiced, judges tended to impose unusually long supervised release terms in CP cases.

Conditions will vary based on the circumstances, but in a child pornography case they might include restrictions on where the person can work (for example, not in a business that mostly serves children, like a video arcade), or on computer use. There might be a fine to be paid to children in the images whose identity is known; if so, the payment plan would be part of the conditions. If I’m remembering right, registration as a sex offender is required by statute. But as I said, it’s been a while for me, and I might not be remembering any of this very accurately! And of course the statutes and guidelines may have been amended since I last looked at them. And I don’t know what’s typical in the district where Josh has been charged. And obviously it’s conceivable that Josh won’t be convicted, in which case supervised release would be a moot issue.

My pleasure! I seem to remember from your past posts that you’re also a lawyer or have a background in the law? If so, then of course you know that we all have our specialties. (I wouldn’t be able to draft a contract to save my life lol.)

You’re right that there’s no parole in the federal system, but something did replace it: supervised release. Supervised release begins when a person leaves federal custody. The judge sets the s/r term and the s/r conditions at the time of sentencing. I haven’t practiced in several years now and don’t remember what the minimum s/r term for Josh’s presumptive offenses would be. Two years? Five years? In the district where I practiced, people convicted in child pornography cases generally had possessed far more images than have been reported in Josh’s case, and many were placed on s/r for ten years or even life. As for the s/r conditions, some are required by statute, some are recommended by the U.S. Sentencing Guidelines, and some may be recommended by the probation officer who prepares the presentence report. The conditions are supposed to protect the public and help the person to rehabilitate himself, and they are required, in theory at least, to be the least restrictive conditions possible to serve those purposes. If Josh is convicted, once he is released from custody he will have to report periodically to his probation officer, who will supervise his compliance with the s/r conditions. If he fails to comply, the judge may extend his s/r term up to the statutory maximum and may send him back to prison, although as far as I remember the maximum for an s/r violation isn’t very much compared to the prison term for the underlying crime. (Two years? Whatever it is, I’m sure it doesn’t feel trivial to the person serving that sentence.) In addition, the judge may modify the existing s/r conditions or impose new ones. On the other hand, if Josh behaves well on supervised release, the probation officer, the prosecution or the defense may ask the judge to loosen some of the more onerous conditions or reduce the s/r term.

I think that @cereality and @GeeGolly have explained it really well. The questions on the bar exam aren’t difficult in themselves — they’re not tricky, there’s nothing hidden — but they require a great breadth of knowledge, they require a fair depth of knowledge, and the consequences of failure are catastrophic. I hold no brief for Derick, and I don’t know how difficult the Arkansas bar exam is (I’m barred in California), but for his own sake that of his family, whose tiny steps out of the suffocating TTH cult I’m happy to see, I hope he’s buckling down.

I agree, in my experience it’s at the very low end, so low that I’m frankly surprised that the feds didn’t kick it over to state prosecutors. Given JB’s political contacts, perhaps they kept the case to ensure the appearance of neutrality.

In the federal system, you serve 85% of your sentence by statute, and the way the BOP calculates it, it’s really 87%. In addition, in all but the most minor cases, the court is required to impose a term of supervised release that begins when the defendant is released from custody. It’s been several years since I was in practice, but as far as I can remember, the offenses with which Josh is charged carry a minimum supervised release term of five years. In the district where I practiced, judges routinely imposed lifetime terms of supervised release in CP cases, although those cases typically involved hundreds or even thousands of images and dozens of videos rather than the sixty-five images and one video reported here. Supervised release is conditional, which means that the defendant must abide by the conditions of release that the judge has imposed. The federal Probation Office is in charge of ensuring that he does. Conditions in a CP case may include restrictions on certain kinds of computer use, a bar on being around children, prohibitions against living near a school, and so forth. If the defendant violates his supervised release terms, the court may send him back to prison.

Maybe people are playing off the short story in which a woman bashes her husband to death with a frozen leg of lamb, cooks it, and serves it to the investigating detectives?