🔥🔥 Judge’s ire in Steve Bachar case spotlights paying restitution upfront

Judge's ire in Steve Bachar case spotlights paying restitution upfront

When Denver District Court Judge Eric Johnson rejected a plea agreement in a white-collar crime case last week, he gave a very specific reason for throwing out the deal.

“Justice in this society cannot be seen as buying oneself out of a felony conviction,” the judge told defendant Steve Bachar, who’d accepted an offer from the Denver District Attorney’s Office that would have allowed him to avoid jail time and have a felony theft conviction wiped from his record if he pleaded guilty and met certain conditions, including paying $174,000 upfront to the victim in the case.

Johnson called the deal “contrary to justice” during the hearing Friday and noted that people have gone to prison for stealing much less money. His refusal to accept the deal put a spotlight on plea bargains in which prosecutors require defendants to pay upfront restitution as part of the agreement, a practice seen on occasion in Colorado’s courts.

Critics like Johnson say the deals unfairly give wealthy defendants a leg up. Denver District Attorney Beth McCann defended the practice, saying the plea bargains are focused on ensuring victims of financial crimes are “made whole” and paid back the money stolen from them. And still others say the deals simply lay bare what has been seen in courts for decades — wealthier defendants often end up with better results in criminal cases than poorer defendants.

“Of course rich people do get better deals and better outcomes in the criminal system all the time,” said Thea Johnson, an associate professor of law at Rutgers Law School. “…You might make the argument that there is something more honest about saying, ‘This is the negotiation we went through.’”

Plea offers that require defendants to pay restitution by the date of their sentencing in order to receive a more lenient punishment are driven by victims’ needs, McCann said. The offers incentivize defendants to pay back stolen money in cases involving financial crimes.

“The use of this kind of plea agreement for us is very important,” McCann said. “…It’s really a way to be sure we will get the money back to the victim. That’s a good way to induce people to pay the money upfront, so they can get the deal. We’re holding their feet to the fire.”

Most of the court-ordered restitution in criminal cases goes unpaid after a defendant is convicted, The Denver Post has found. Only about 16% of the $322 million in restitution ordered between 2016 and 2020 had been paid by early 2021, The Post found.

“What tends to happen is people don’t pay, don’t pay, don’t pay,” said George Brauchler, former district attorney for the 18th Judicial District. “(Judges will) give folks time and time and time again, and at the end of the day they may end up ending the case without ever having successfully paid the restitution and they say, ‘Just convert it into a civil claim.’ And none of that puts a victim in a place they should have been.”

In June, Denver defendant Tyler Tysdal accepted a plea agreement that required him to pay $2 million in restitution by his sentencing in exchange for a maximum six-year prison sentence. If he had failed to pay the money on time, he’d have faced a maximum eight-year prison sentence.

“When it’s an economic crime, where someone has lost their life savings, we really want to get it back to them, rather than put the person in jail for a period of time,” McCann said.

She added that making the victim whole looks different in non-economic cases like assault or murder, where the harm to the victims or their families goes well beyond lost money.

Johnson said the Tysdal plea agreement struck her as unusual because of its direct line between sentence length and restitution paid.

“It creates what appears to be quid pro quo,” she said. “‘If you give us the 2 million, then we’ll give you the six-year sentence instead of the eight-year sentence.’ It gives the impression you are buying time off your sentence.”

But, she added, in some ways the pleas are similar to plea bargains in non-economic cases, like if a prosecutor offered a defendant in a drug case a deal in which the defendant could serve three years in prison or go to a drug treatment program and serve no time in prison — with the caveat that should the defendant fail the treatment program, he would then be imprisoned for six years.

“This does operate (similarly), these sort of, ‘We’ll give you some benefit now to keep you out of prison, but if you screw that up there will be a harsher penalty down the road,’” she said.

Johnson was a member of a task force that studied plea bargaining for three years and in February issued a report on the practice for the American Bar Association. The task force found that while most justice in the U.S. is doled out through plea bargains — as opposed to jury trials — the overwhelming use of the practice negatively impacts the integrity of the judicial system by creating “perverse incentives across the system for lawyers and judges who focus on disposition rates and getting through cases quickly rather than resolving cases justly.”

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