The plea agreement that wasn't

Let's say you committed a crime. Maybe it involved a fraud related to "antioxidant-rich whole food puree," or maybe it involved apocryphal gold bars supposedly buried by the Japanese during World War II, or maybe it involved both -- we're just spit-balling here. The government has you dead-to-rights, more or less, so you're going to plead guilty. They make you this offer: if you plead guilty (thereby relieving the government of its need to do more work on your bizarre case), they will agree to recommend to the court that you should receive a three-year sentence. If you hold up your end of the bargain and plead guilty, you would have reason to believe that the government would, in fact, make a good-faith effort to recommend a three-year sentence, right?

No. You would not. At least that's the Sixth Circuit's conclusion in the Reed opinion, published today. Rather than uphold the deal it had entered into, the government in this case told the district court how much of a liar Mr. Reed was and how many people he had injured. At the end of the sentencing hearing, just before the court was about to pronounce its sentence, the court stated that "the government has agreed pursuant to the plea agreement to recommend a three-year term of custody." Mr. Reed objected to the obvious: the government never actually had recommended a three-year term of custody. On cue, the government stated that it "recommended a three-year sentence," and Mr. Reed objected that this was too late. The district court rejected Mr. Reed's argument, stating that the prosecutor (who had just demonstrably failed to uphold his end of the bargain) was "unimpeachable"  and noting that the plea agreement itself constituted a recommendation. You heard that right: an agreement to do something actually means you did that thing. The court sentenced Mr. Reed to seven years' custody. Seven years, which is more than three.

In a published opinion, the Sixth Circuit denied relief. Thankfully, it rejected the district court's reasoning that an agreement to pay $10,000 for a car is the same thing as actually paying $10,000 for a car, noting that "[t]his might be a different story if the government had failed to make any recommendation outside the plea agreement itself." The opinion concludes that "[t]he prosecutor was obligated to fulfill his promise -- which he eventually did." The opinion further notes that "[t]he government never advocated for a sentence over three years," so Mr. Reed can take some consolation in that for the next seven years.

I will say what the Sixth Circuit did not say here: regardless of whether Mr. Reed's sentence should be upheld, the prosecutor should not have done this. The prosecutor's promise was as false as the Japanese gold bars from World War II, and prosecutors should be held to a higher standard than fraudsters.