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October 16, 2012

Interesting judicial discussion of what plea agreements ought to say about sentencing

At the end of an otherwise routine criminal ruling handed down by the Sixth Circuit in today in US v. Beals, No. 10-5264 (6th Cir. Oct. 16, 2012) (available here), Senior District Judge Tarnow has an intriguing concurring opinion discussing plea agreements which makes these points:

In this case, Miller’s plea agreement contained a waiver of appeal unless her eventual sentence was “above the sentencing guideline range as determined by the district court.” The Court finds, and I agree, that based on language of her waiver, Miller’s eventual sentence was not above the guidelines range as determined by the district court -- though the district court’s determination of the guidelines range was contrary to the stipulated facts in her plea agreement.

The Court holds that Miller “could have bargained” for a narrower waiver, for instance by including language that she reserved the right to appeal whether “the Court incorrectly determined the guidelines range.” The Court thus implies that Miller consciously chose to forego a more narrow waiver for some unstated advantage, or that she was simply deficient in her bargaining and unnecessarily exposed herself to the possibility of a higher sentence.

My point is not to question the Court’s holding that Miller’s waiver was knowing and voluntary, but rather to note that requiring sophisticated bargaining by criminal defendants to retain the right to appeal a sentence likely contributes to uncertainty regarding whether a plea was knowing or voluntary.  It does not seem to me that justice is served by permitting plea agreements that (bargaining aside) result in defendants agreeing to a plea that they did not intend or properly understand.  Moreover, defendants may have less incentive to accept guilty pleas if they are concerned that they are actually at risk of a higher sentence than they thought had been agreed to in their plea agreement.

I would recommend that counsel for both defendants and the government strive to create plea agreements that state in plain terms the maximum possible sentence a defendant might receive.  Defendants who plead guilty based on an agreement that provides a clear statement of the maximum likely sentence are adequately forewarned of the possible consequences of their guilty plea, even in a “worst case” scenario where, as here, a court construes the evidence and sentencing guidelines differently than a defendant expected when agreeing to their plea.

If discussion of the maximum possible sentence is required in plea agreements the result is to eliminate ambiguity in the guilty-plea process, surely an important goal given the interests at stake....

The plea agreement in this case does not mention the actual maximum possible sentence that Miller might have (and did) receive.  While a stipulation in a plea agreement cannot bind a sentencing court to a particular sentence, plea agreements should state the maximum possible sentence that a defendant might receive and, if subjected to a sentence above that maximum, waivers of appeal should not be enforced.

October 16, 2012 at 12:59 PM | Permalink

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Judge Tarnow's concurrence in "U.S. v. Beals, et al.") is consistent with Sixth Circuit and U. S. Supreme Court ["Morrison v. U.S.",449 U.S. 361(1981) and "Hill v. Lockhart", 474 U.S. 52,57(1985)] precedents his opinion doesn't mention. Those decisions hold that in advising a defendant about whether to accept or reject a guilty plea, constitutionally sufficient defense counsel is required to give the defendant a good faith estimate (but not a perfect estimate!) of the U.S. Sentencing Guidelines he is facing if he goes to trial and is convicted. Where there is a significant disparity among the plea bargain sentence offered, counsel's estimate and the actual sentence imposed following trial, counsel has been ineffective and habeas corpus should be granted to the defendant. See, "U.S. v. Morris", 470 F.3d 596, 602-03 (6th Cir. 2006), "U.S. v. Allen", 53 F. App'x. 367, 373-74 (6th Cir.2002) and "Turner v. Tennessee", 858 F.2d 1201, 1205 (6th Cir. 1988), vacated on other grounds, 492 U.S. 902 (1989), holding reinstated, 726 F. Supp. 1113 (M.D. Tenn. 1989), reaffirmed, 940 F.2d 1000 (6th Cir.1991). [There are several similar Sixth circuit precedents, which are not cited here]. In March 2012, the U.S. Supreme Court issued two opinions concerning ineffective assistance of counsel during plea bargaining. "Lafler v. cooper", 132 S.Ct. 1376 (2012) and "Missouri v. Frye", 132 S.Ct. 1399 (2012). Since then, the Sixth Circuit has issued one post-Lafler opinion on ineffective assistance of counsel during plea bargaining, affirming that the appropriate habeas corpus remedy is to vacate the defendant's conviction and order the government to re-offer the plea bargain. "Titlow v. Burt", 680 F.3d 577, 592-93 (6th Cir.2012) As a remedy, the trial court may also order the Government to offer to accept a plea of nolo contendere, instead of a guilty plea under Rule 11 of the Federal Rules of Crimianl Procedure. "Leatherman v. Palmer", 583 F.Supp.2d 849, 852-53, 871-72 (W.D. Mich. 2008), stay denied, 2008 WL 5062902 (W.D. Mich), habeas corpus affirmed, 387 F. App'x. 533 (6th Cir. 2010); "Guerrero v. U.S., 393 F.3d 409, 418-19 (6th Cir.2004) (noting that it is not impermissibly inconsistent for the defendant to have maintained his innocence thru a trial and to plead guilty after that conviction is vacated on habeas corpus). Thus, Defendant Miller (the subject of Judge Tarnow's concurrence) may now have a habeas corpus claim for ineffective assistance of counsel in negotiating the ambiguous plea agreement, for the reasons described in the concurrence. In one Eleventh circuit case decided since "Lafler" and Frye" were announced in March 2012, a defendant has had her conviction and life sentence vacated, and been re-sentenced to 10 years (the prior plea offer). Because she had already served 11 years, she was released from Federal prison and deported to her home country in Central America. See, "Yuby Ramirez v. U.S.", Appeal No. 10-10653-DD (11th Cir. May 3, 2012 unpublished Order, remanding to the District Court with directions) and "U.S. v. Yuby Ramirez", Case No. 04-22395-CV-Lenard/Garber (S.D. Fla., Docket No. 132, May 4, 2012 unpublished Order).

Posted by: Jim Gormley | Oct 16, 2012 3:49:15 PM

Personally i think this one is a no brainer.

"I would recommend that counsel for both defendants and the government strive to create plea agreements that state in plain terms the maximum possible sentence a defendant might receive."

I would consider any plea contract and that is what it is. Complete bullshit from the state if it did not include a specific sentence. The defense response to any plea absent this should be two words. FUCK OFF!

Posted by: rodsmith3510 | Oct 16, 2012 3:50:52 PM

My experience with US Attorneys is that the waiver-claused Plea Agreement is "take it or leave it." Accept the waiver, or go to trial -- on whatever the coming superseding indictment charges, and maybe career offender enhancements (bumping defendant to Criminal History VI, and a sentence of 262-ish months). Sometimes an open plea is possible, if there's one count or all counts will be relevant conduct anyway. But generally, it's take either the waiver or the trial penalty.

To suggest that these waivers are the process of open, voluntary "bargaining" also suggests the writer hasn't been around plea negotiations in a while.

Posted by: Jay Hurst | Oct 16, 2012 4:26:50 PM

Jay Hurst --

The only Constitutionally-designated method for the disposition of felony charges is a trial. Thus it seems to me that if the defendant doesn't like the waiver, or any other condition the government insists upon, tell it to get lost and take what the Constitution gives.

I am continuously amazed that defendants complain about plea bargaining when all they have to do is tell the government to shove it.

And yes, it's true that bargaining positions aren't equal. That's because the defendant was caught on the bank surveillance camera doing the heist and the AUSA wasn't. To expect equality of position when the evidence of criminality is distinctly unequal is foolish. In those circumstances, there isn't going to be, and shouldn't be, equality.

Posted by: Bill Otis | Oct 16, 2012 5:36:48 PM

"I am continuously amazed that defendants complain about plea bargaining when all they have to do is tell the government to shove it."

Oh please. You act Bill as if the truth mattered when you know full well it doesn't. Would you tell the government to shove it if you had some underpaid and overworked public defender looking at your case. I'm sure you'll say yes and blather on about what fine and noble PD's you met in your career; easy enough to do when your not the one facing down the sentence.

I know for a fact I don't have much confidence in the PD system and I know plenty of legal professionals who feel the same way. Mostly because they are simply overworked, not because they are stupid. The entire system would crash if everyone insisted on their rights and they were all represented by competent attorneys with plenty of time and resources at their disposal.

Posted by: Daniel | Oct 16, 2012 9:03:44 PM

Daniel --

"You act Bill as if the truth mattered when you know full well it doesn't."

I know nothing of the kind, and I doubt you'll get much support for that statement from the defense lawyers here.

"Would you tell the government to shove it if you had some underpaid and overworked public defender looking at your case."

I'd tell the government to shove it if I were innocent. I'd bargain for the best I could get otherwise, which is what actually happens. You would know this if you had spent any time actually presenting cases.

"I'm sure you'll say yes and blather on about what fine and noble PD's you met in your career..."

Cut out the "blather" business and get some adult manners. The PD's I ran across were generally at least as good as privately retained counsel. Some were noble and some were other than noble.

"...easy enough to do when your not the one facing down the sentence."

It's easy enough when it's true. And the reason I'm not facing down a sentence is that I'm not a criminal. Those who are might consider accepting responsibility for their behavior rather than looking for every dodge.


Posted by: Bill Otis | Oct 16, 2012 10:55:54 PM

hmm

"I'd tell the government to shove it if I were innocent. I'd bargain for the best I could get otherwise, which is what actually happens."

hmm funny bill i thought that to have a legal bargain both sides need to know what is going on and what each side will receive. Sorry but the system we have now does not even come close. If the state can't even get off it's ass and show the defendant a set number. But has to keep it a "suprise" till after the signure is on the dotted line. No constract on earth would be considered legal done that way in any other context but you seem to think it's legal here.

As for innocent telling the govt to shove it. Let's get real here bill. Nobody is going to take that risk with all the shit the govt pulls now. You know having trial after trial after trial after trial...till it either finds a group of retards for the j ury of the jury simply get's fed up with people being dragged off the street for new trials and convicts for something.

Posted by: rodsmith | Oct 16, 2012 11:28:21 PM

Bill, what makes these waivers of adhesion abhorrent isn't that they exist, and what makes your "then go to trial" position irrational isn't a constitutional question.

What makes these issues un-American is the one-way ratchet upward in sentence length -- driven by the Department of Justice and its lobbyists, as well as prison profiteers -- that our "justice" system has used for thirty-plus years. This isn't about "do the time." This is about FAR too much time being given without mercy or compassion (per Justice Kennedy, I add), and without good evidence that it reduces crime more than reasonable sentence lengths with drug treatment and remedial education.

Instead of being smart about crime, We the People make it irrational NOT to take a decade and the waiver for a moderate-sized weed grow, instead of risking two decades or more for exercising one's constitutional rights (because, don't forget, convicted on one count means one also gets punished for all the acquitted counts too). Those sentence-length decisions were NOT about justice or accepting responsibility and making better choices. They were about fear and money, and the DOJ was one of very few beneficiaries.

Posted by: Jay Hurst | Oct 16, 2012 11:37:58 PM

As to Federal Defenders, I have every faith in most I know. There are poor lawyers in every field, but the AFDs I know are among the best legal minds that money can't buy. Again, the problem is the System itself, and the way it favors prison construction and private prison contractors.

Posted by: Jay Hurst | Oct 16, 2012 11:44:41 PM

Jay Hurst --

"Instead of being smart about crime..."

To be smart about crime is to create a system that reduces crime. That is exactly what we have done. In the 25 years since the federal guidelines (and many state guidelines) appeared on the scene -- and with the growth of the prison population during that time -- crime has decreased by half, to levels not seen since Eisenhower. If that is not being smart on crime, there is no such thing.

"We the People make it irrational NOT to take a decade and the waiver for a moderate-sized weed grow, instead of risking two decades or more for exercising one's constitutional rights..."

Not a single court in all this time has agreed with your conclusion. That is, the courts unanimously see the (typical but not uniform) granting of a benefit for admitting guilt in a plea deal as NOT being a penalty for the exercise of constitutional rights.

Simply using the phrase "trial penalty" does not mean that there is in fact a trial penalty. There is a "bargain bonus," as there should be. Indeed, the "smart" system you mention would quite certainly incentivize the savings that come with settling rather than litigating cases. This was true before the guidelines and continues to be true, for example, in civil cases as well, where settlement rather than trials is the norm.

If you have an active practice, you can't help knowing that by far the principal reason defendants agree to plea bargains is that they correctly believe they'll do better for themselves by going that route than by putting on some hokey defense the jury shouldn't and won't buy.

Finally, we tried the "mercy and compassion" method you prefer in the 60's and 70's. What we got for our trouble was a crime wave. Contrary to your argument, it is hardly irrational -- indeed it's nothing but common sense -- to stop doing what's not working and try something else. That's what the country did, starting in the 80's, and we reversed the upward spiral in crime. What would be irrational would be to go back to, as Reagan once said, the failed policies of the past.

Posted by: Bill Otis | Oct 17, 2012 2:54:03 AM

I see two kinds of plea agreements in federal court: (1) the "adhesion" model where all of the provisions are really waivers of a defendant's rights that are no different in substance for a straight-up guilty plea, (2) an actual negotiated agreement where the government makes a meaningful concession of some kind. It is almost a misnomer to call the first kind a plea bargain, in substance the defendant is pleading guilty and throwing himself on the mercy of the court, which is free to impose a sentence up to the statutory maximum. The second kind is pretty rare; it mostly happens in high-profile cases. Rumor has it there were some real plea negotiations in the John Edwards case. Edwards didn't like the deal, so he rolled the dice.
I've handled mainly court-appointed cases in federal court, but I have gotten a handful (two or three) actual negotiated pleas.

Posted by: Bryan Gates | Oct 17, 2012 1:08:43 PM

this is true bill.

"Not a single court in all this time has agreed with your conclusion. That is, the courts unanimously see the (typical but not uniform) granting of a benefit for admitting guilt in a plea deal as NOT being a penalty for the exercise of constitutional rights."

But the only reason it's true is the courts refuse to look at the trees in the forest. They never bother to run the numbers to see the amount of time those who refuse to take a plea end up with 20-50 times the sentnece those who take a plea get.

It's not rocket science to know that when you look at plea's to see that those who take one get 1 year where an individual who goes to trial and loses get's 50! that it's not in fact a punishment for demanding your right to a trial.

Posted by: rodsmith | Oct 17, 2012 2:32:45 PM

Bryan Gates --

The reason Edwards was offered a lenient plea is that the government knew both its legal theory (the definition of a "campaign contribution") and its factual case (what was the real reason the donor gave the money) were weak, far weaker than in the average case.

Far more typical is the fellow who is caught on video tape robbing the bank, or who is arrested inside the meth house while he's sitting there mixing the brew. In such cases, the government has neither need nor reason to offer leniency, and the defendant's lawyer isn't crazy enough to think he's going to win at trial. Such circumstances are a recipe for the government to get what it wants in plea negotiations, since one of the main things the government seeks to avoid -- uncertainty of outcome -- is almost entirely absent.

Or, to put it more simply, the stronger the case the government has, the fewer breaks the defendant is going to be able to bargain for. But that is hardly sinister. Indeed, it's not even disturbing, since it's how negotiation works in any context.

Posted by: Bill Otis | Oct 17, 2012 2:41:17 PM

i'll give you that one bill. I also agree if the state has caught the little shit dead to rights. Take it to trial. The oroginal ideal for plea agreements at the beginning was not for it to be used in every damn case. It was to be the rare event where iffie evidence was overwhelming but to a jury not so much. So better to use a plea and get them off the street for some time as apposed to no time at all.

Posted by: rodsmith | Oct 17, 2012 11:11:58 PM

Bill Otis:

On Edwards: agreed.
On the bank robber/meth mixer: agreed (I've had cases like that).
On leverage: I never said it was sinister, that is just the way it works.

Posted by: Bryan Gates | Oct 18, 2012 8:16:04 AM

Part of the problem here is defining what the bargain is. There are two types of bargaining: charge bargaining and sentencing bargaining. In a charge bargain, you negotate the charges to which your client is pleading. By eliminating/reducing some charges, the defendant reduces the maximum esposure. In a sentencing bargain, you either reach a firm agreement as to the sentence or an agreed upon cap.

There is no reuirement that the prosecution agree to a sentence bargain, and, even with a sentence bargain, it is acceptable to agree upon a cap. I have had many cases in which I offered a term of years to wrap up the case (or was offered a term of years when I was a defense attorney), but the defendant wanted to be able to argue for less, and so a revised offer with a cap slightly higher than the original offer was extended (to give some incentive to take the original offer and avoid an extended sentencing hearing). Similar, there are some judges in places that I have practiced in that refuse to accept a plea agreement with a sentencing bargain and will only accept charge bargaining.

Whether waivers or a good idea or not is entirely different from saying that a plea bargain is only a bargain if it resolves every possible disputed issue. You don't always have a full resolution of all issues on the civil side and you don't always havee a full resolution of all issues on the criminal side. That doesn't mean that there isn't merit to reaching a partial resolution as long as everybody understands what is resolved and what is still to be decided by the court or a jury.

Posted by: tmm | Oct 18, 2012 2:39:18 PM

i agree tmm as long as it's all in writing. But we are seeing way way way too many cases where the defendant is suprised and is now fighting said plea. you can't tell me all thier lawyers didn't give them the info.

Which tells me in far far too many cases it was a suprise. IE an illegal contract.

Posted by: rodsmith | Oct 18, 2012 3:10:03 PM

Bill (no knowing if this is still being read),

First, the latest crime report shows crime going up, somewhat undermining your argument. I do agree that locking every felon away for decades would reduce the number of felons on the street. But, it also leads to our very problem today -- overcrowded and dangerous prison conditions where we imprison more than China or Russia, long after inmates pass the prime of criminal activity. That's not being "smart," that's using a hammer for brain surgery.

I never suggested that we should return to some of the 70s touchy-feely crap. I paraphrased Justice Anthony Kennedy, not one known as a bleeding-heart liberal. My point was that States like New York and Texas are proving even today that they can reduce crime while imprisoning fewer defendants with things like drug treatment and mental health counseling. Again, it's about being smart, rather than using a hammer for brain surgery.

Moreover, I note AGAIN that the one-way (upward) ratchet is a direct result of lobbying by the USDOJ and private prison corporations, not being smart about crime reduction. Our extreme prison sentences are about powerful interests -- including agents in the U.S. Government -- profiting, and politicians making sure they don't face "Willie Horton" campaign ads.

And a rose by any other name is still a rose, Bill. Call it what you will, sentences are longer if defendants go to trial -- even if they're acquitted on 99 counts out of a hundred. That, my colleague, is a trial penalty, whether courts have rationalized it.

Posted by: Jay Hurst | Oct 20, 2012 9:24:43 AM

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