August 15, 2011
"Taking Plea Bargaining Seriously: Reforming Pre-Sentence Reports after Padilla v. Kentucky"
The title of this post is the title of this important new paper by Professor Jack Chin, which is now available via SSRN. Here is the abstract:
This essay proposes two reforms to the pre-sentence report (PSR) in light of increasing recognition that plea bargaining, not trial, is the major decision point in criminal prosecutions.
PSRs are important to plea bargaining and sentencing because they contain the critical information that will be used in imposing a sentence. The sentence will sometimes be mandated by the criminal record and other information in the PSR; for example, a record may mean that there is a mandatory minumum sentence, or that probation is unavailable. In most other cases, the sentence will be highly influenced by the contents of the PSR. Given the importance of the PSR, in a rationally designed system, the PSR would be available before critical decisions about the case are made. Yet, under current practice, the PSR is generally not prepared or available until after entry of a guilty plea. This means that all parties are pleading in the dark –- they can be surprised by a mandatory or presumptive sentence based on ignorance or misunderstanding of the defendant's criminal record or other important, pre-existing facts. While deferring preparation of the PSR until after disposition might have made sense in an era when many cases went to trial, it is unacceptable when virtually all cases are pleaded. Accordingly, PSRs should be prepared in advance of pleas, so that all parties can make a deal knowing the facts that reveal what the bargain actually means.
This essay also suggests that, in accordance with existing law, PSRs should identify collateral consequences and other legal restrictions which are not nominally part of the criminal sentence, in order to provide a guide for a defendant's conduct (18 U.S.C. 3563(d)), and to establish the defendant's post-release financial condition for purposes of calculating restitution and fines. (Fed. R. Crim. P. 32(D)(2)(A)(ii).).
August 15, 2011 at 09:17 AM | Permalink
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I agree that PSRs ought to be available to defendants prior to a guilty plea. Of course, there would have to be admonishments that a pre-plea PSR isn't a gaurantee since the Court can disagree with Probation and things can happen that change the numbers. But, the large majority of districts will never get pre-plea PSRs. Why? Defendants would read them, see all of the inflammatory hearsay, get furious, and go to trial. Anyone think that the govt wants that? As I see it, one of the biggest advantages to the govt in the PSR coming out AFTER the plea is that, by that point, defendants are generally locked into their guilty plea. And, not only that, if defendants fuss too much about the PSR, then they lose credit for acceptance of responsibility.
Posted by: Nicholson | Aug 15, 2011 10:06:05 AM
here's an easy solution. CAN ALL PLEA BARGAINS! take the criminal injustice system back to the LEGAL CONSTUTIONALLY required justice system. Get your criminal convictions via a Contutionally required JURY OF THEIR PEERS!
Posted by: rodsmith | Aug 15, 2011 10:52:52 AM
The PSR is supposed to be a tool to assist the Court in exercising sentencing discretion. I don't wish to be made a handmaiden to the parties, helping them concoct their horse trades.
Posted by: USPO | Aug 15, 2011 10:59:26 AM
Another example of an academic with little practical experience. Pre-plea PSRs have always been an option in guideline sentencing. They are little used because the parties found they were not necessary. Many plea agreements were nearly iron-clad, allowing the defendant to withdraw his guilty plea if the stipulated agreements regarding the guidelines were not followed by the Court. In the interest of expediency, the Court followed most stipulations even when they were found to be infirm by the PSR investigator.
Posted by: mjs | Aug 15, 2011 11:39:03 AM
Plea agreements are supposed to be knowing, voluntary, and intelligent. It is defense counsel's duty to ensure that the agreement is made intelligently. Clients in federal court with experienced lawyers are not "pleading in the dark" because their lawyer has provided them with an analysis of the relevant statutory offense factors, the advisory guidelines, their criminal history, the 3553 factors, and the predilictions of the district judge who is going to be doing the sentencing. Anything less is does not meet the prevailing standards for defense counsel appearing in federal court in my district.
In many cases, I also counsel my clients as to potential collateral consequences with the help of materials obtained from the ABA and www.fd.org
It is counsel's job to make sure the client understands so I wonder why Prof. Chin thinks this is so important.
Posted by: Y | Aug 15, 2011 12:35:22 PM
Practices vary from district to district, division to division, and judge to judge. There are places where the Government will not stipulate regarding sen.tencing issues before the plea. In those circumstances, the PSR is extremely important. Because judges treat the PSR aspresumptively reliable, this gives the Probation Office enormous power over sentencing, especially where the AUSA is content to let the judge and probation officer take over sentencing.
An experienced defense attorney who understands the dynamics of the court will warn defendants of the types of unsubstantiated information that are likely to make their way into the PSR and the likelihood the judge will rely upon it. But many lawyers are as shocked as their clients when they get the PSR.
Posted by: C.A.J. | Aug 15, 2011 3:18:20 PM
"one of the biggest advantages to the govt. in the PSR coming out AFTER the plea is that, by that point, defendants are generally locked into their guilty plea."
Exactly, and by that time they have often been duped into waiving their rights to appeal.
"if defendants fuss too much about the PSR, then they lose credit for acceptance of responsibility."
If they "fuss too much" they may find that all of the "promises" for consideration made by the AUSA and/or the PO disappear when the PSR is published. By that time, the plea has been entered and it is too late.
"It is counsel's job to make sure the client understands"
However, this is often not the case. Many times "promises" are made by both the AUSA, and the PO that a competent attorney would reject out of hand unless made a part of the plea agreement. Those defense attorneys who do not and make the mistake of "trusting" the word of an AUSA or PO generally see their client get the short end of the stick. You can't lie to them but they can lie to you and will not hesitate to do so if it serves their purposes.
"Because judges treat the PSR as presumptively reliable, this gives the Probation Office enormous power over sentencing, especially where the AUSA is content to let the judge and probation officer take over sentencing."
True, but the more likely situation is that it is the PO and the AUSA who are collaborating. The PO is being totally guided by the AUSA. He writes the PSR as instructed by the AUSA to insure the sentencing result desired by the AUSA. All of which goes back to the fact that the plea has already been entered before the defendant or his attorney ever see the final version of the PSR. The PSR may be amended between the first version and the actual sentencing date. Recommendations in the original that favored the defendant may be radically different in the final version that the judge uses to pronounce the sentence. When challenged, the typical response from the PO is that the AUSA has decided that the defendant did not meet the "standards" required for consideration of whatever "concessions" may have been "promised".
Posted by: Thomas | Aug 15, 2011 4:42:23 PM
That is quite a work of fiction you have woven. PSR writers take their marching orders from the Court and not the parties. There is no collaboration with the AUSA beyond the retrieval of official documents related to the case at hand. The defense is free to submit countervailing documentation but rarely avail themselves of the opportunity.
Posted by: mjs | Aug 15, 2011 7:16:32 PM
You are living in a dream world
Posted by: Thomas | Aug 15, 2011 9:28:26 PM
Amazing. mjs, who is an expert with a world of experience and a sterling reputation with the bench and bar where he worked in federal service for many years, tells it like it is. thomas, who has never even come close to presenting a case in federal court, and is unqualified to do so, snorts that mjs is "living in a dream world."
This is roughly the equivalent of a ten year-old Little Leaguer sneering at Roy Halladay that he doesn't know how to pitch.
Posted by: Bill Otis | Aug 15, 2011 10:32:12 PM
Well, well, well, more blah, de blah, de blah from Mr. Otis. You do not have to be "qualified" to present a case in a federal court or anywhere else to recognize malfeasance when you see it. Guess next thing you know he will be wanting to debate that issue. The scenario that I described is accurate and factual; it happened in the real world that you don't seem to believe exists. If you don't think it happens, both of you are living in a dream world. You see things as you wish them to be rather than as they really are. The problem is not with the PSR itself, or even with the waiver of appeal that Otis is so proud of. The problem lies with the less than honorable members of the justice department who misuse and abuse them.
Bill is a master at belittling anyone he does not think "worthy" of participating in the conversation. Not little league but bush league comes to mind.
Posted by: Thomas | Aug 15, 2011 11:45:41 PM
thomas, the man who never spent a day presenting a case in federal court, continues his know-it-all lecture to people who spent decades doing it. The guy without ten minutes experience indignantly tells those with years of it that they're "living in a dream world."
Well, SOMEONE'S living in a dream world. Or, I guess, not so much that as a Construct World, in which criminals are assumed to the the Good Guys and prosecutors the Bad Guys. That's how thomas wants to see it, so that's how it is.
It is indeed, as I said, like a ten year-old Little Leaguer sneering at Roy Halladay that he doesn't know how to pitch.
Most people would be embarrassed by such breathtaking presumption, but thomas is not most people.
Posted by: Bill Otis | Aug 16, 2011 9:27:43 AM
"thomas is not most people"
That is the only thing in Bill's entire diatribe that he has right and thanks for the compliment.
I am not impressed at all by Bill's inflated sense of self importance and see through his pompous arrogant blather as clearly as looking through a plate glass window.
Is it not interesting that Bill chooses to "defend" mjs rather than allowing the gentleman to respond for himself? More arrogance?........I think the answer is clear.
Bill jumps in and characterizes mjs as someone "who is an expert with a world of experience and a sterling reputation with the bench and bar where he worked in federal service for many years". Perhaps so, but are we expected to know and acknowledge the "qualifications" of everyone who comments here before offering a response? I have no idea who mjs is nor does it matter. mjs responded with an opinion and in that opinion offered not one shred of information regarding his "qualifications". Could it be that he thought them irrevelant to the conversation? It just happens that I strongly disagree with that opinion.
It is of note that in all of his blather, Bill chooses to defend the sterling character of mjs but never once denies outright that the malfeasance by prosecutors that I described is in fact a reality. He never once acknowledges or denies that fact that you don't have to be able to present a case in federal court or any other court to recognize the difference between right and wrong. The great "distracter" continues his usual diversionary methods by misstating my position as one where "criminals are assumed to the Good Guys and prosecutors the Bad Guys." Not so by any stretch of the imagination. The reverse is almost always true. I said almost always, as there are times when the prosecutor is indeed the "bad guy" and the party that the prosecutor wishes to characterize, as a "criminal" may in fact be the "good guy." Circumstances that Bill seemingly denies or at least refuses to address head on.
I will ask the straight up question, do you, Bill Otis, categorically deny the misuse and abuse of the PSR and waiver of appeal by some federal prosecutors? Are you saying that I am lying outright when I say that the scenario described was factual? Or do you continue to live in your dream world where every prosecutor and PO is of outstanding character and always adheres to the highest standards?
As I said, Bill is a master at belittling anyone he does not think "worthy" of participating in the conversation and for lack of anything better, he continues on that course. In another thread a few days ago, Bill rails against another commenter who disagrees with him saying, "his elevator is not stopping on all floors" and continues saying, "the guy is just incoherent." Bush league by any measure, pure bush league.
Posted by: Thomas | Aug 16, 2011 12:03:35 PM
The gravamen of your comment was that a sub rosa agreement exists between the Probation Office and the Office of the AUSA to subvert fair and impartial sentencing in the highest court in the land.
Go sell that to John Grisham
Posted by: mjs | Aug 16, 2011 12:49:46 PM
"The great 'distracter' continues his usual diversionary methods by misstating my position as one where criminals are assumed to the Good Guys and prosecutors the Bad Guys.' Not so by any stretch of the imagination. The reverse is almost always true."
A welcome admission, however late in coming. It's unfortunate it has to appear only when you're cornered at the end of the chase.
It is, however, an admission very hard to square with your blanket attack on AUSA's as presumptive liars, who'll go back on their word out of sheer vindictiveness. Thus you wrote on this thread less than 24 hours ago -- in a passage you now seem to have forgotten:
"However, this is often not the case. Many times "promises" are made by both the AUSA, and the PO that a competent attorney would reject out of hand unless made a part of the plea agreement. Those defense attorneys who do not and make the mistake of "trusting" the word of an AUSA or PO generally see their client get the short end of the stick. You can't lie to them but they can lie to you and will not hesitate to do so if it serves their purposes."
I guess you must have been using invisible ink when you qualified that false and scurrilous passage by saying, "Oh, hey, wait, it's 'almost always true' that the AUSA is a good guy."
The truth is that you just say what you want in order to unload bile, which is your main schtick here. If, in less than a day, your earlier statement gets exposed, you turn on a dime and claim it really meant the opposite of what any normal person would have taken it to mean.
It's for exactly this reason that you head for the hills when offered a live debate. You know full well that sneering, ignorance of the subject matter and self-contradiction won't sell in such a setting, which is therefore to be avoided. And avoid it you do.
But the invitation is still open. You said that the appeal waiver is unethical (your exact word) and that by implication I'm unethical for having invented it.
Fine. If what you say is true, a live debate is your chance to show me up big time. If you have problems with putting it on before a law school audience in Washington, DC, I'm happy to consider alternatives more convenient to you. Are you ready?
(By the way, the "unethical" appeal waiver has been approved by every court of appeals to have ruled on it, which is most or all of them by now. But you, with zero experience litigating criminal cases, elevate yourself to pronounce that all these courts got it wrong, while you, with Your Superior Wisdom and Morality, got it right. Do you even hear yourself?).
"I will ask the straight up question, do you, Bill Otis, categorically deny the misuse and abuse of the PSR and waiver of appeal by some federal prosecutors?"
I doubt any provision of law ever invented has not been misused or abused by someone at some point. This applies to federal prosecutors as to every human being who has reached adulthood. But notice how many giant steps you've taken back from your original, they're-a-bunch-of-liars shotgun blast. Now it's, "You have to admit there's been skullduggery by someone sometime."
"Are you saying that I am lying outright when I say that the scenario described was factual?"
I'm saying that you have provided no specifics (e.g., case name, date and jurisdiction) and no documentation. You have not disclosed your source. You're not a lawyer nor a probation officer, so it's extremely unlikely you have firsthand knowledge of the specifics of the preparation of probation reports. But your scenario comes from somebody. Who is it and what are his biases?
Newsflash: I assess truthfulness the same way any rational person does, to wit, by examining facts, specifics and sources. Where are they?
Lastly, there are people writing comments whose elevators do not stop at all floors, a fact known to everyone who looks at the comments section, including you. If you think stating the truth about this is bush league, I'm not surprised.
P.S. Speaking of bush league tactics, not to mention hypocrisy, you felt perfectly free a while back to tell Soronel Haetir that he needed to see a shrink. This was the sin of disagreeing with you about how often the death penalty should be imposed.
As noted, you just say what you want. The standards of courtesy and truthfulness you would impose on others from your Perch on High are exactly the ones you routinely ignore.
Posted by: Bill Otis | Aug 16, 2011 1:26:31 PM
Grisham wouldn't buy it.
It's almost beyond belief that a guy with zip experience in preparing probation reports would lecture YOU, of all people, about all the in's and out's of it. Beyond belief, that is, until you've read some of thomas's stuff. Then you understand that anything goes.
Posted by: Bill Otis | Aug 16, 2011 1:32:33 PM
More blather,evasion, twisting, turning and mischaracterization from Bill. This conversation is over.
Posted by: Thomas | Aug 16, 2011 2:07:00 PM
The conversation is over for the same reason the debate never started: You have no answers and don't want to make it any more obvious than it is already.
Posted by: Bill Otis | Aug 16, 2011 3:46:11 PM
On second thought, maybe this conversation is not quite over.
Bill is just too full of self-aggrandizement and pomposity to let it slide. The problem is that Bill, like the proverbial "schoolyard bully" just loves to throw his weight around. This response is so full of mischaracterizations, misdirection and straw men it is almost impossible to respond. I have concluded, and I should have seen it long ago, that Bill's only real interest is not in seeking the truth but in winning the argument. That is what lawyers are trained from birth to do right, win the argument. And, if the price is right it does not matter which side of the argument it only matters to win. In a comment on another thread just yesterday, Bill says, "Words are my thing." Yep, and he uses them as the aforementioned Bully uses his fist in the attempt to beat those who disagree with him into submission.
I made a very simple assertion that there are federal prosecutors who misuse the tools given them to secure a conviction by any means. I also maintain that, at times, there is collusion between the AUSA and the PO responsible for writing the PSR. To these simple, uncomplicated assertions, Bill launches a lengthy attack filled with outright misstatements, mischaracterizations distractions and diversions. The rant continues with personal attacks worthy of a liberal politician. Bill never once acknowledges my statement that "The problem is not with the PSR itself, or even with the waiver of appeal that he is so proud of. The problem lies with the less than honorable members of the justice department who misuse and abuse them."
However, hidden in all of the misdirection Bill finally, finally, gives an, almost, straight answer to my question, "Do you, Bill Otis, categorically deny the misuse and abuse of the PSR and waiver of appeal by some federal prosecutors?" Bill's answer, "I doubt any provision of law ever invented has not been misused or abused by someone at some point. This applies to federal prosecutors as to every human being who has reached adulthood." is about as close as I ever expect Bill to come to admitting that such things do happen. It's a start.
However, Bill just can't help a little more distraction though as he continues to distort my comments saying, "But notice how many giant steps you've taken back from your original, they're-a-bunch-of-liars shotgun blast. Now it's, "You have to admit there's been skullduggery by someone sometime." The "shotgun blast" comment is yet another distortion but I will add these questions. Bill, if there is "skullduggery" by "someone" "sometime" do you propose that it go unnoticed? If there is "skullduggery" by "someone" "sometime", do you propose that those of us who do notice just keep quiet for the common good? If there is "skullduggery" by "someone" "sometime" do you propose that, just because the perpetrators represent the "government" that they be allowed free rein? Sure sounds to me like rather than work to insure that every citizen of this country gets fair treatment you would rather kill the messengers who point out malfeasance by those who are supposed to be protecting us.
I'm done here. This thread is well past its shelf life .
Posted by: Thomas | Aug 17, 2011 12:38:16 PM