Failure to accept responsibility
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Asked why anyone makes a deal with federal prosecutors when the government has so often reneged, John Kiriakou gave a mechanical answer rather than a psychological one. Roughly 98 per cent of federal criminal cases end in a plea bargain, he said, and the reason is a feature of the federal sentencing guidelines.

The mechanism

In his description, a defendant who turns down a deal, goes to trial and is found guilty does not simply receive whatever sentence the offence carries. The court adds time, an enhancement applied, in the phrase he quotes, for "failure to accept responsibility."

The practical effect he describes is that the trial itself carries a price. The choice put to a defendant is not between a negotiated sentence and the sentence the law prescribes, but between a negotiated sentence and a longer one imposed for having contested the charge.

The constitutional objection

His co-host put the obvious objection to him: that this punishes a defendant for exercising the constitutional right to defend himself, and so ought to be unconstitutional. Kiriakou agreed, "That's right. Yes, you're exactly right", and then hedged, saying he assumed the question had already been adjudicated, and adding a single word: "unfortunately."

He does not name a case or a court. The hedge is characteristic: he states the mechanism as something he knows from the inside of the federal system and declines to claim more than that about the case law.

Where it sits in his own account

The exchange arose out of a discussion of Ghislaine Maxwell's failed Supreme Court appeal and, before that, of the plea Kiriakou himself took. His co-host had raised his case directly, noting that the government had told him he was going to a camp and then sent him to a real prison, and asked why anyone trusts the feds not to renege. The enhancement is Kiriakou's answer to that question: people take deals not because they trust prosecutors but because the arithmetic of refusing is worse.

See also

See also

- John Kiriakou
- Federal plea coercion
- Ghislaine Maxwell
- Eastern District of Virginia
