After pushback from the Arbery family, a judge rejected the plea bargain reached between federal prosecutors and two of Arbery’s killers.
After pushback from the Arbery family, a judge rejected the plea bargain reached between federal prosecutors and two of Arbery’s killers.
T he Biden Justice Department found itself backpedaling Monday after the family of Ahmaud Arbery strenuously objected to a plea deal it had given the two men most culpable in Arbery’s murder.
Upon hearing out the family, a federal judge declined to approve the deal. If a new deal is not struck by the end of this week, a federal civil-rights trial is scheduled to begin on Monday for the two defendants, the father-and-son tandem of Travis and Gregory McMichael, along with a third man, William “Roddie” Bryan, with whom prosecutors are also reportedly negotiating. The three have already been convicted of murder and sentenced to life-imprisonment in a Georgia state trial.
The Justice Department’s plea bargain is, indeed, a farce, but so is the rest of this prosecutorial exercise in political theater.
In most instances, it is for the prosecutor to determine an appropriate plea offer. In our system of separated powers, prosecution is an executive function. Deciding how much of the executive’s finite resources should be expended on an individual case is the prosecutor’s job — and that includes crafting plea bargains that represent faithful execution of the law. The court’s job is to ensure that these decisions and the guilty-plea procedure conform to due-process requirements, and to impose a sentence within the penalty range prescribed by Congress for the offense of conviction. It is not the judge’s place to second-guess the prosecutor’s judgment that the plea agreement is an appropriate disposition of the case; it is not the prosecutor’s place to determine what sentence should be imposed.
As with most things legal, however, there’s an exception.
Federal rules permit the prosecution and defense to agree not only on what crimes a plea deal will cover but also on what sentence the court will impose. But because such a plea agreement intrudes on the judge’s sentencing discretion, there is a caveat: The judge may refuse to accept the deal. If he does, then (a) the parties renegotiate until they reach a deal the court will approve; (b) the case goes to trial; or (c) the government drops the charges.
Federal law obliges government lawyers to apprise crime victims (often including the family of the deceased in a case such as Arbery’s) if a guilty plea is contemplated. Importantly, this is a consultation, not a request for permission. The Justice Department should respectfully hear the victims out, and adjust if the victims lodge compelling objections to a plea deal. But if a difference of opinion cannot be resolved, the prosecutor’s decision is final.
Final, that is, unless the exception described above applies. If the prosecutor makes the rare plea deal that needs the judge’s approval of a fixed sentencing term, then the victims can try to prevail on the judge to refuse.
That is what happened in the Arbery case.
The Arbery family became incensed when they were apprised of the plea deal because the Justice Department’s proposal is a boon for the father-and-son defendants — Travis McMichael, who shot Arbery to death, and Gregory McMichael, who instigated the chase that led to the murder. Upon pleading guilty to the federal civil-rights charge, the pair would have been transferred immediately to federal custody. That is what they desperately desire, because it would be safer and more comfortable than confinement in a Georgia state penitentiary.
The Biden Justice Department hoped the family would play along with its spin that the plea deal accomplished significant civil-rights-enforcement objectives. Namely, (a) it would have imposed a sentence of up to 30 years’ incarceration, (b) the defendants would have waived their right to appeal, and (c) at least one of the defendants, Travis McMichael, would have admitted that he was motivated by racism to kill Arbery. The family, however, was shrewd enough to see that this was smoke and mirrors.
First, the 30-year sentence was really no sentence at all: It would have run concurrently with (i.e., be subsumed in) the state-court-imposed life sentence that the McMichaels are already serving, which carries no possibility of parole. Second, virtually all federal defendants who plead guilty waive their right to appeal, but such waivers have no bearing on any state appeal. The state appeal is what matters to the Arbery family, and the Justice Department did not make waiver of the right to it a condition of the McMichaels’ federal plea. Third, the McMichaels have until now denied being racists. For political purposes, getting one of them to admit that racism did in fact motivate him mattered to the Biden Justice Department’s race-obsessed Civil Rights Division. But the Arberys knew McMichael would just be saying whatever he thought he needed to say to be transferred from state to federal custody.
So the Arberys told the Biden Justice Department to pound sand. This impasse should surprise no one.
I have been calling attention to the Biden Justice Department’s civil-rights gamesmanship (see, e.g., here, here, here, and here) for a while now. Like its Obama-era forebearer (see, e.g., here and here), the Biden DOJ’s Civil Rights Division habitually slipstreams in behind racially charged cases, invariably involving young black men who’ve been killed in altercations with cops or white assailants. The point is not to do justice; it is to signal solidarity with the Democrats’ ultra-progressive base, all the better to take their mind off Biden’s inability to be the next FDR.
The real action in these cases is the state prosecution, as it should be. There the wrongdoers are prosecuted for murder and other serious offenses. The superfluous federal case is not a murder prosecution. It alleges a violation of civil rights, which has the downsides of being both less significant and harder to prove, since doing so involves determining what was going on in the mind of the perp rather than what the perp did to the victim.
So, if an accused is convicted and sentenced to heavy time by the state court, the Justice Department often extends an enticing offer: If the culprit agrees to plead guilty, admits to racist or other evil motivations, and accepts what is made to look like a heavy sentence, he is permitted to serve his time in federal custody. This is a boon for the murderer, who in exchange for an illusory sentence gets what he most wants — namely, to be in a safer, better-appointed federal facility somewhere in the U.S., rather than in a penitentiary in the state where he committed the murder. It is also a boon for DOJ’s social-justice warriors, who get to issue a press release about how they’ve struck a crushing blow against America’s indelible racism.
That’s the racket. It is exactly what the Biden Justice Department did with Derek Chauvin. After Chauvin was convicted by the state of Minnesota of murdering George Floyd and sentenced to 22-and-a-half years, the Justice Department staged his guilty plea to civil-rights charges. As I related last week:
Naturally, DOJ heralded Chauvin’s guilty plea as a telltale admission that he had willfully violated George Floyd’s civil rights. Yet, as the government prosecutors were well aware, the deal was very favorable to Chauvin.
The plea bargain capped Chauvin’s potential federal sentence at 25 years, stipulated that he could be released in as few as 17 years, and provided that the federal sentence will run concurrently with the 22-and-a-half-year sentence already imposed in the state. Despite admitting guilt in the federal plea, Chauvin is apparently still appealing his state-court convictions. Though some significant appellate issues stem from the state case, he nevertheless realizes that the main murder conviction and the sentence are highly unlikely to be overturned, so it is cost-free to agree to a concurrent federal sentence of roughly the same amount of time.
Significantly, Chauvin will be able to serve his time in federal prison — an objective of Chauvin’s since very shortly after Floyd’s death, when he reportedly offered to plead guilty to at least one state charge if he could serve his time in federal custody (an offer the Trump Justice Department rejected, opting to defer to the state murder investigation). Theoretically, Chauvin could serve more time on the federal than on the state sentence, because Minnesota parole rules could reduce the latter; but it won’t necessarily be more, and even if were, it would be only slightly more. Meantime, Chauvin calculates that custody in a federal prison somewhere in the United States is apt to be safer and less restrictive for him than would be maximum-security confinement in, say, Minnesota’s Oak Park Heights Correctional Facility (where he has been held).
Consequently, though the Justice Department touted Chauvin’s guilty plea as a triumph for civil-rights enforcement, it has no real effect other than to let him serve roughly the same term of incarceration in federal rather than state prison, as he desires. Moreover, the federal sentence effectively shields him from any real punishment for the 2017 use of excessive force against a teenager (which was not part of the state prosecution but has, in effect, been concurrently folded into the state sentence for killing Floyd that he is already serving).
Now, the Justice Department is trying to run the same play in the Arbery-murder case. But neither the Arbery family nor the presiding judge is content to be the puppet at the end of DOJ’s string. Family members objected, Judge Lisa Godbey Wood agreed with them, and now DOJ is scrambling to come up with a deal that both the McMichaels and the Arbery family would find tolerable.
Tara M. Lyons, the prosecutor on the case, insisted that the proposed plea deal the court has rejected was not a sham because it required Travis McMichael to admit the killing was racially motivated, “an important aspect which we believe will allow some healing to begin.” While Lyons was telling the grieving family how to heal, Kristen Clarke, the radical leftist appointed by Biden to head the Civil Rights Division, blamed the family for any confusion, maintaining that they had told DOJ they were “not opposed” to the plea deals.
The law ought to be enforced. But politicizing it can get awfully complicated, awfully fast.