A federal jury in Boston recently convicted Gamal Abdelaziz and John Wilson in connection with conspiring to get their children into the University of Southern California. The story is more newsworthy for what it says about the corruption of our criminal justice system than for what it says about corruption in the college admissions process.
The striking element is that people are being punished for exercising the rights to "a speedy and public trial, by an impartial jury" and "to be confronted with the witnesses against him" that are guaranteed by the Sixth Amendment.
The Associated Press lays out the facts: "Thirty-three parents have pleaded guilty, including TV actors Felicity Huffman and Lori Loughlin and Loughlin's fashion designer husband, Mossimo Giannulli. The parents have so far received punishments ranging from probation to nine months in prison."
Abdelaziz and Wilson were the first parents to go to trial. What sort of punishment do they face? A press release from the Department of Justice explains:
"The charge of conspiracy to commit mail and wire fraud and honest services mail and wire fraud provides for a maximum sentence of 20 years in prison, three years of supervised release and a fine of $250,000 or twice the gross gain or loss, whichever is greater. The charge of conspiracy to commit federal programs bribery provides for a sentence of up to five years in prison, three years of supervised release, and a fine of $250,000 or twice the gross gain or loss, whichever is greater. The charge of wire fraud and honest services wire fraud provides for a sentence of up to 20 years in prison, three years of supervised release, and a fine of $250,000 or twice the gross gain or loss, whichever is greater. The charge of federal programs bribery provides for a sentence of up to 10 years in prison, three years of supervised release, and a fine of $250,000 or twice the gross gain or loss, whichever is greater. The charge of filing a false tax return provides for a sentence of up to three years in prison, one year of supervised release and a fine of $100,000."
Even longtime federal judges are skeptical of the tendency of prosecutors to pile "conspiracy" charges on top of underlying charges. That allows prosecutors, essentially, to charge defendants twice for the same crime—once for the "conspiracy" of planning the crime, once for committing it. In a pretrial hearing on an unrelated case earlier this year, a longtime federal judge in Brooklyn, Edward Korman, described it as "a common form of charging to unnecessarily complicate cases."
The conspiracy charges are part of the vast imbalance between those who plead guilty and those who exercise their Sixth Amendment right to a trial. Plead guilty and get "punishments ranging from probation to nine months in prison." Insist on a trial and face decades in prison.
The New York Times reports, "They face up to 20 years in prison on the most serious charges. But experts said that under the sentencing guidelines they would get far less, perhaps less than three years for Mr. Abdelaziz and less than five years for Mr. Wilson." Even three or five years, though, is a lot more than "probation to nine months in prison." The difference is what criminal justice reform advocates call the "trial penalty"—additional prison time that people face merely for exercising a right to which they have a constitutional guarantee under the Sixth Amendment.
Plea bargains save the government time, money, and the trouble of actually proving a case beyond a reasonable doubt. The ratio seen in the college admissions cases so far—33 guilty pleas to two convictions after a trial—demonstrates how tilted the system is. In practice, in modern American criminal justice, a trial is unusual rather than routine, despite the constitutional guarantee.
A 2018 report from the National Association of Criminal Defense Lawyers found that fewer than 3 percent of federal criminal cases result in a trial. "There is ample evidence that federal criminal defendants are being coerced to plead guilty because the penalty for exercising their constitutional rights is simply too high to risk. This 'trial penalty' results from the discrepancy between the sentence the prosecutor is willing to offer in exchange for a guilty plea and the sentence that would be imposed after a trial," the report said. A foreword by a former federal judge, John Gleeson, said, "Putting the government to its proof is a constitutional right, enshrined in the Sixth Amendment; no one should be required to gamble with years and often decades of their liberty to exercise it."
Advocacy groups have mobilized in recent years to defend First Amendment and Second Amendment rights against legislative assault. The Sixth Amendment needs champions, too, before the right to a trial is further eroded. Our constitutional liberties might be even more important than who gets into USC.