Let's use Roger Stone's case to fix our broken justice system

Every day in courthouses around the country, federal prosecutors ask for grossly outrageous and offensively high sentences. The United States puts more people in prison for longer amounts of time than any other country in the world. And it’s not just violent, repeat offenders who are getting the monster sentences. Those whopping sentences are also doled out like candy to first time, non-violent defendants.

That’s why it should have come as no surprise when the prosecutors handling Roger StoneRoger Jason StoneRepublicans give Barr vote of confidence Key juror questioned in Roger Stone case Trump attacks Stone juror during hearing on motion for new trial MORE’s case (involving an elderly first-time non-violent defendant) recommended a sentence of 7-9 years.

As wrong and over the top as that recommendation was, it was not unusual in the slightest. What was unusual was President Donald TrumpDonald John TrumpWinners and losers from the South Carolina debate Five takeaways from the Democratic debate Democrats duke it out in most negative debate so far MORE’s Department of Justice coming in and saying that the recommended sentence was “excessive and unwarranted” and that the sentencing guidelines do not “serve the interests of justice in this case.” 

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People are rightly upset that DOJ is saying that the sentencing guidelines apply to everyone — except the president’s friends. That’s a huge problem, and it’s no wonder that the prosecutors handling the case resigned. How can they go into court every day and ask for monster sentences across the board except for FOT (Friends of Trump)?

But the larger problem, and the one that no one is talking about, is that the system itself is fatally flawed because it is set up for prosecutors and judges to issue unjustifiably harsh sentences. Stone shouldn’t be thrown in a cage for 7-9 years — and neither should any other first-time non-violent offender. There are two important fixes available:

First, we should abandon the sentencing guidelines. Often prosecutors fall back on the sentencing guidelines for cover when asking for these crazy high sentences. Those “guidelines” are a complicated point system that calculate potential sentences by adding and subtracting points based on factors like the amount of loss, whether the person is a leader, and so on. The problem with this point system is that it is not based on any empirical data or study. The numbers are plucked out of thin air. Further, they don’t take into account the characteristics of the individual being sentenced. Has the defendant led a good life? Did she serve in the military? Donate to charity? Raise a good family? The guidelines don’t care. The Supreme Court recognized these problems and said that judges should simply consult the guidelines but should not be bound by them. That was a good start, but the truth is that they aren’t even worth consulting. They don’t work, and — since their implementation back in 1984 — our jail population has exploded.

Second, we should eliminate the trial tax. This case is a good example of the trial tax in action. Had Stone pleaded guilty, he would have been looking at a sentence of closer to 24 months under the guidelines. And had he met with prosecutors and cooperated, he likely would have been sentenced to probation. Because he had the audacity to go to trial, his sentence goes from probation to 7-9 years.

It’s no wonder that innocent people plead guilty. It’s no wonder that trials are vanishing. Before the sentencing guidelines and the trial tax, 20 percent of cases went to trial. Now it’s less than 3 percent. That is pretty stark evidence that the trial tax has become too severe.

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Lots of people are rightly saying that Trump was wrong to jump in for his friend and overrule the line prosecutors’ sentencing recommendation. But what was wrong about it was not overruling an overly harsh sentence. What was wrong about it was that he did it for a friend instead of across the board.

We are in bad need of criminal justice reform. Let’s overrule all of these insane sentencing recommendations for first time non-violent offenders — not just the FOT.

David Oscar Markus is criminal defense attorney at Markus/Moss in Miami. He is a magna cum laude graduate of Harvard Law School. He tries criminal cases and argues criminal appeals throughout the country. Follow him on Twitter @domarkus.