Relying on a dataset I assembled of 130 doctors prosecuted for illegal opioid distribution between 2015 and 2019, this Article shows that judges rejected federal prosecutors’ sentencing recommendations over two-thirds of the time. Put differently, prosecutors lost much more often than they prevailed at sentencing. And judges often rejected the prosecutors’ sentencing positions by dramatic margins. In 23% of cases, judges imposed a sentence that was half or even less than half of what prosecutors recommended. In 45% of cases, judges imposed a sentence that was at least one-third lower than what prosecutors requested. In short, prosecutors lost most of the time at sentencing, and they often lost big.
Although this sentencing data involves a unique type of defendant in a particular category of cases, it should nevertheless give us pause about the conventional narrative that prosecutors are all-powerful. Prosecutors, quite simply, may not wield as much power in the courtroom as we have thought.
Part I of this Article describes the cases of doctors who were convicted and sentenced for illegally distributing opioids. Part I explains how I located a large sample of federal cases involving drug-dealing doctors and where I procured the prosecutors’ sentencing recommendations that are usually hidden from public view. Part II reports the findings that prosecutors often lose at sentencing. In particular, Part II demonstrates that whether prosecutors made sentencing recommendations within, below, or above the Federal Sentencing Guidelines, judges consistently rejected those recommendations and imposed shorter prison terms than prosecutors sought. Part II also reports the surprising finding that prosecutors did not seek to penalize defendants who went to trial by recommending sentences at the high-end of the guidelines range. Finally, Part III considers the extent to which we can extrapolate larger conclusions from a unique dataset of quasi-white-collar offenders.
This abstract has been adapted from the author's introduction.
95 St. John's Law Review 581-639 (2022)
Gershowitz, Adam M., "The Myth of the All-Powerful Federal Prosecutor at Sentencing" (2022). Faculty Publications. 2080.