The Probation Paradox (Part One)

It will be on the short list of things your mind will immediately focus on once the federal prosecutors inform you that they intend to charge you. “How do I stay out of prison?” Deferred prosecution having been removed from the table; probation now becomes the golden ticket.

At this point, if they haven’t informed you already, your lawyer will update you on the federal government’s ever-present prosecution success rate of 99%. You are likely to plead out. Everyone knows it. The government knows, your lawyer knows. If you haven’t come to it yet, you will. Nearly no one fights. I didn’t fight.

My case was as likely winnable as any you would encounter. I was charged with one count felony conspiracy to sell counterfeit electronic components. The government acknowledged that the entirety of their case was based on the testimony of ONE individual, who himself had taken a plea and was claiming that I was his co-conspirator. After three years of an intensive investigation no other evidence was produced to support the government’s case. If I had chosen to go to trial their case would likely fall to pieces upon cross examination.

Once I made my decision to enter a plea agreement it was incumbent upon me to prep for my plea hearing and sentencing, and to explain to family and friends why there was no point in fighting. That by going to court, and even with the possibility of winning, the result would likely have a prospectively more damaging outcome than to plea. The continuation of a heated investigation by the government would decimate my still somewhat intact finances along with any prospect of saving our family business (a reasonable probability that drove most of my decisions).

All of this is by design. The prosecution seeks victories, regardless of whether it is for justifiable cause, political pressures, pure careerism, or a mix of all three. There is no other instance in life, in business, in relationships, or in any organizational entity that entails decision making, where the margin of error is nil. As I experienced it, in our US criminal justice system, regardless of fact, and or contingency, one party is always right, and it has the power to ensure that it always is.

Almost everyone pleads out. There is nothing else to be done.

Once you have reached a plea agreement with the prosecution you will know the sentencing guideline that you will be subject to. I was looking at a maximum of twenty-four months. The conditions surrounding my case made it unlikely that I would receive a sentence for the maximum. I was also informed by my lawyers that depending upon the judge, the stance of the prosecution and the perspective of the PO writing my PSR, that I stood a reasonable chance of receiving a non-custodial sentence. Probation.

As it happened, everything aligned and I was sentenced to three years’ probation, 100 hours of community service and a restitution and fine amounting to just over half a million dollars.

It was as good an outcome as I could have hoped for. I wish that it had been otherwise.

Jeff Krantz is a member of the Ministry’s White Collar Support Group that meets every Monday evening on Zoom.