O’Hara: He Took a Plea Deal –Pigeon’s Decision of a Lifetime

By J.J. O’Hara

It has been almost two years since Steve Pigeon, who once chaired the Erie County Democratic Committee and had working relationships with powerful Democrats throughout the country at the local, state and federal levels, was charged with committing the following crimes:                                                                                         –

1. Two (2) counts of Predatory Sexual Assault Against a Child (Class “A-II” felonies);
2. One (1) count of Rape in the First Degree (Class “B” felony);
3. One (1) count of Criminal Sexual Act in the First Degree (Class “B” felony);
4. One (1) count of Sexual Abuse in the First Degree (Class “D” felony); and
5. One (1) count of Endangering the Welfare of a Child (Class “A” misdemeanor).

In the intervening 23 months, Pigeon’s lead attorney, James Nobles, was able to convince State Supreme Court Justice M. William Boller, who is presiding over the case, to allow Pigeon to remain out of jail on bond while he prepared for trial.

Nobles was unsuccessful, however, in moving to get Erie County District Attorney John Flynn replaced on the case by a Special Prosecutor. Nobles had argued Flynn had a “prolonged antagonistic personal relationship” with Pigeon, which started when Pigeon blocked him from running for Erie County DA in 2008.

Since Pigeon was indicted, Frank Report has posted several articles concerning the charges against him – including the following:

1. Democrat Strategist Steve Pigeon Accused of Rape; DA Says ‘It’s a Child’s Word Versus His Word’ – Frank Report;
2. NYS Justice Kevin Carter to Decide Pigeon’s Motion to Disqualify DA Flynn for ‘Bias,’ ‘Animosity,’ in Child Rape Prosecution – Frank Report;
3. DA Flynn Should Hope Justice Kevin Carter Disqualifies Him in Pigeon Case – Frank Report;
4. Child Rape Allegations Against NY’s Steve Pigeon Raises Questions on Validity – Frank Report;
5. Erie County DA Bets on Teen’s Word Against Pigeon: Lack of DNA Evidence and Witnesses Complicates Case – Frank Report;
6. District Attorney John Flynn Stands by Accusations Against Pigeon Despite Lack of Physical Evidence, as Family Members Question Credibility of Teen Accuser – Frank Report; and
7. Shadows of Scrutiny: A Closer Look at the Rape Accusation Against Veteran Political Strategist Steve Pigeon – Frank Report.

To Plead Or Not To Plead

On November 6^th – a day that he will likely relive every day for the rest of his life – Pigeon pleaded guilty to one count of Sexual Abuse in the First Degree, a Class “D” felony under Section 130.65 of the New York State Penal Code.

As detailed in that section, a person is guilty of Sexual Abuse in the First Degree when they subject another person to sexual contact:

1. By forcible compulsion
2. When the other person is incapable of consent due to being physically helpless
3. When the other person is less than eleven years old
4. When the other person is less than thirteen years old and the perpetrator is twenty-one years or older.

In conjunction with the plea, it is expected Pigeon will be incarcerated for 8-12 months – and be required to register as a Level 1 or Level 2 sex offender with the New York State Sex Offender Register. 

So, what are some facts and factors that Pigeon likely considered as he pondered the plea deal that was offered to him – and decided to accept it? Here are my thoughts on the matter.

How long will he be incarcerated?

While every criminal defendant offered a plea deal may have some unique factors to consider, I can tell you from personal experience – and from discussions with many others who accepted plea deals – that the primary factor is usually the alternative punishment that would likely be imposed if the defendant went to trial and was convicted.

This so-called “trial penalty” has recently become the topic of several research studies – the general consensus of which is that “…the ‘bargain’ underlying a plea bargain – the reduction of potential sentences – exists and is significant”.

In Pigeon’s case, a guilty verdict on all the pending charges agiasnst him could have resulted in a jail sentence of 25 years to life. Indeed, from the very outset of the case, DA Flynn claimed that “He’s facing life in prison.”

Where will he be incarcerated?

Another factor that many defendants consider when they decide whether to accept a plea deal is where they would be imprisoned. This is especially true when their choice may make the difference between a high security facility and a low security one – and even more so when their choice may make the difference between a state prison and a local jail.

According to figures cited by The Prison Policy Initiative, almost 2 million Americans are incarcerated at any point in time. As detailed in the chart below, that figure includes inmates in 98 federal prisons, 1,556 state prisons, 3,116 local jails, 1,323 juvenile correctional facilities, 181 immigrant detention facilities, and 80 Native American jails, as well as those who are incarcerated in military prisons, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories.

If Steve Pigeon went to trial and was convicted, he would likely have been incarcerated in one of New York State’s 44 state prisons. And given that he resides in Erie County, he would likely have served whatever sentence he received at the New York State prison in Attica, NY.

Because, however, Pigeon accepted a plea deal that will result in a sentence of no more than one year, he will likely be sentenced to serve his time at the Erie County Correctional Facility (ECCF) in Alden, NY.  In this regard, it should be noted that while Attica State Prison can house up to 2,000 inmates, the ECCF generally houses only half that amount.

How safe will he be while incarcerated?

Regardless of where he serves time, Pigeon will probably be labeled a “Chomo” by his fellow inmates. As such, he will be subject to slurs, open hostility, and violence – both from some fellow inmates as well as from some of the facility’s staff. Based on anecdotal reports, all those indignities would likely be much greater at Attica State Prison than the Erie County Correctional Facility.

If, on the other hand, Pigeon went to trial and was convicted, there would be little he could do to ensure that he served his time in a specific state prison. And since New York State is part of the “Interstate Corrections Compact“, it is even possible that he could be transferred to a prison in another state.

Other factors

In addition to the above, Pigeon likely considered several other factors, as he pondered whether to accept the plea deal that was offered to him. These might have included some/all of the following:

• What were his odds of being acquitted on all counts if he went to trial?
• How would his family members, friends, and professional associates treat him after he served his time and returned home?
• Would he be employable when he is no longer incarcerated?
• What, if any, ongoing requirements and restrictions would he be subject to after he’s released?

Conclusion

Based on my own experience, the worst part of accepting a plea bargain – and this is especially true if you did not commit the crime(s) you’ve been charged with – is that you will likely spend the rest of your life wondering whether you made the right choice.

Unfortunately, there’s no way to be sure how things would have turned out if you had gone to trial:

• Would you have been convicted of some/all charges?
• What would your sentence have been?
• Where would you have been incarcerated?
• Might your conviction have been overturned on appeal?
• Could you have survived – both mentally and physically – 10 or 15 years in prison?

I don’t know why Steve Pigeon decided to accept the plea deal offered to him by Erie County DA John Flynn. But I do know that he will likely spend the rest of his life wondering if he made the right choice.

Personal Comment

Although I’ve spoken to Steve Pigeon once or twice on the phone, I have never met him in person – and don’t have any personal knowledge or “inside information” about the criminal charges against him. I do, however, know what it’s like to have to decide whether to risk substantial time in prison or take a plea deal that requires you to admit to things that you didn’t do.

While plea deals are absolutely necessary in order for the U.S. criminal justice system to function, many believe their increasing usage is due in large part to the way in which prosecutors “stack” the charges they bring against criminal defendants.

In Pigeon’s case, the Erie County DA decided to charge him with six separate crimes, thereby helping ensure that even if he was acquitted of five charges, he would still spend a substantial amount of time in prison.

Before the 1960s, 25%-33% of state felony charges resulted in a trial. Today, that number is down, on average, to 6% for all 50 states – and to just 2% in New York State.

And, as noted by Gaby DelValle in her 2017 essay in The Atlantic,

“Even for those who maintain their innocence, pleading guilty can be preferable to waiting for their case to be heard and risking the possibility of a prison sentence that could run much longer than the time they’d face under a plea.”

What a sad commentary on our criminal justice system.

J.J. O'Hara