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ON THE DEFENSIVE: Defendants struggle with Morton’s Fork

By Anthony Cotton

Anthony Cotton is a partner at Kuchler & Cotton SC, Waukesha. He is the vice president of the Wisconsin Association of Criminal Defense Lawyers and on the board of the National Association of Criminal Defense Lawyers.

Morton’s Fork describes a choice between two equally unpleasant options.

It originated as a way to describe the tax collection philosophy of John Morton, the archbishop of Canterbury in the late 15th century. Morton’s reasoning was: If a person is living modestly, he must be saving money, and therefore could afford to pay more taxes; and if a person is living extravagantly, he must be rich and could afford to pay more taxes.

Most defendants prosecuted for drug crimes in federal court are confronted with a Morton’s Fork. During the past 20 years, Congress has escalated mandatory-minimum penalties such that many defendants face minimum sentences of five, 10 or 20 years.

In the vast majority of cases, there is only one way to be sentenced below that minimum: sign up as an informant and rat out your friends, family and neighbors.

Largely because of these mandatory-minimum sentences, coupled with a sentencing structure that penalizes losing at trial, 97 percent of all federal cases resolve by way of a plea agreement.

The cooperation game is so endemic to this system that most plea agreements contain a specific paragraph in which the defendant agrees to cooperate in “current and future” investigations. Should a defendant choose not to cooperate against other individuals, he or she would suffer the effect of a severe mandatory-minimum prison sentence.

The fundamental flaw in the cooperation game is that it rewards criminality. Those who know more information, because they were more enmeshed in criminal activity, are rewarded with bigger cuts to their sentences.

Those who had a lesser level of involvement find themselves unable to provide much meaningful information, and, consequently, they get a very slight sentence reduction or sometimes no reduction. This type of system sends a message to future defendants: make sure to involve yourself in more criminal activity because if you are federally indicted, you need to have lots of information to give.

This type of system also does an injustice because it generates lies that become the foundation of future prosecutions. Here is the Morton’s Fork that so many lower-level defendants face: Do I tell the truth, provide the limited information I have and serve a 10-year prison sentence? Or do I lie, claim that my co-defendants were involved in more criminal activity than they were and take my large sentence reduction?

Sadly, for most defendants, it’s an easy choice to make.

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