Acceptance of Responsibility

Every day, in federal district courts around the country, criminal defendants are encouraged to accept responsibility for their acts. If they do so, the presiding judge invariably gives a lighter sentence, and in the process commends the defendant for taking ownership of what they did, while accepting the consequences. The extensive investigatory resources of the federal government are one of the forces behind the prevalence of guilty pleas, another is the typically lengthy sentence that awaits a federal criminal defendant if he takes a case to trial and loses. After a three-month trial, one of my clients received a 25-year sentence, even though he was acquitted of 14 counts of the Indictment, and had no prior criminal record. Federal prosecutors and defense counsel such as myself agree – if federal criminal defendants stopped pleading guilty, the federal judicial system, nationwide, would grind to a halt.

If Brett Kavanaugh is named to the Supreme Court, the majority of cases he helps decide will be criminal appeals, arising from a system which could not function without something that the Nominee is unable to do: Accept responsibility for acts that evidently happened. If the Nominee had simply done what every federal defendant is at some point urged to do, his testimony of September 27, 2018 could have lasted a few minutes, and the nomination would already be secured, without protests, unending expenditures, and another F.B.I. investigation. It could have gone something like this:

“I was a smart, overachieving, but at times thoughtless teenage boy. I attended parties, where like many of my friends, I drank excessively. In that state, I did things that I am ashamed to admit and now, 30 years on, can barely remember. But based on the testimony from Dr. Ford, they evidently happened. I can only be grateful that the outcome was not even worse. I apologize to Professor Ford, and hope she can someday forgive me. Even more, I hope and pray that my own daughters never have to endure what I apparently did to Dr. Ford that day so many years ago.”

That would have been it. A shocked and grateful nation would likely have commended the Nominee for taking it on the chin, accepting responsibility, and for being a Man in the best sense of the word. The debate would be over, the press moving on. Whether we call it irony, hypocrisy, or something worse, Brett Kavanaugh will ultimately decide the fate of defendants who lacked his advantages, but were able to do something that is apparently beyond his capacities: Accept responsibility.


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