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January 15, 2009

Interesting SCOTUS discussion of plea agreement breaches in Puckett

With so much else going on in the sentencing world these days, I have not given much attention to Puckett v. United States (07-9712), the case before the Supreme Court involving the government breach of a plea agreement regarding arguments to be made at sentencing.  I have not focused on Puckett much because the official question presented concerns appellate review standards: "Whether a forfeited claim that the government breached a plea agreement is subject to the plain-error standard of Rule 52(b) of the Federal Rules of Criminal Procedure."

But, upon reading the transcript of today's oral argument in Puckett, which is now available at this link, I was reminded of how rarely the Supreme Court has occasion to consider the many legal issues surrounding plea agreements.  And, in the Puckett argument, various Justices struggle with the question of whether the government really breached the plea agreement, whether any breach could be considered harmless, and what sorts of remedies might be justified and appropriate for the government's (iffy?) breach.

As detailed in some of the posts listed below, lower courts often struggle with various practical questions in the wake of the prosecutorial failures at sentencing to comply with plea promises.  Puckett could provide some guidance on these issues, but I am fearful the case's opaque facts and unusual procedural posture may keep it from shedding needed light in this arena.

Some related posts:

January 15, 2009 at 12:21 AM | Permalink


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It didn't seem that the defendant was making a ton of headway with his argument.

Posted by: federalist | Jan 15, 2009 10:46:00 AM

I think this case gets kicked for being improvidently granted. It's clearly not the right vehicle to tee up this issue, and it seems that some of the justices were thinking that this case is just a mess.

Posted by: A. Nony. Mous. | Jan 15, 2009 11:04:20 AM

What is most fascinating is the plea agreement as contract discussion.

When California passed the Three Strikes Law a man drove his car into a police car in protest. While he may not deserve any sympathy for being so stupid, sympathy has nothing to do with it. Why did he do that? Why not do it the day before in protest of the already existing habitual criminal law? Because it was a breach of contract and he had surrended his rights without knowing or expecting the state to change the terms of the plea agreement contract.

In People v. Gipson, 117 Cal. App. 4th 1065; 12 Cal. Rptr. 3d 478; 2004 Cal. App. LEXIS 562, the defendant argued exactly that:

Defendant claims the doubling of his base sentence from three years to six years under the Three Strikes law violates the federal and state contract clauses, which prohibit states from passing laws impairing the obligation of contracts. (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9.) According to defendant, his 1992 plea bargain was a contract between the state and him, which the Legislature could not impair by subsequent enactments. (See Hall v. Wisconsin (1880) 103 U.S. 5 [26 L. Ed. 302].) The prior plea agreement “incorporated by reference Penal Code section 667 [as it existed then], which provided a recidivist penalty of 5 years for each prior serious felony and a one year enhancement for each prior prison term served. These incorporated terms were limited to these penalties which would occur upon the happening of a future event. This was the scope of the agreement [insofar] as it dealt with sentencing enhancements for possible future convictions.” Defendant adds, “[t]he plea agreement was executed between [defendant] and the executive branch of the government (the prosecution) and [it was] judicially sanctioned. A third party (the legislature [sic]), which was not a party to the original contract, cannot at a future date make those agreements burdensome by retroactively applying new terms to a consummated deal.”

The court found: His plea bargain is “deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy… .” ( In re Marriage of Walton, supra, 28 Cal. App. 3d at p. 108.) The plea bargain “vest[ed] no rights other than those which relate[d] to the immediate disposition of the case.” ( Way v. Superior Court (1977) 74 Cal. App. 3d 165, 180 [141 Cal. Rptr. 383].)

It is interesting in that finding against Gipson, the court does not cite any federal case law. Is there any? Is there police power that trumps all the other constitutional rights enough to make a plea bargain contract void or voidable?

Posted by: George | Jan 15, 2009 1:26:21 PM

George. I hadn't seen those cases before and I find the courts logic there (though not necessarily its conclusion) incredible. The idea that a plea agreement is like a contract is an analogy that is overstated and I thought the lawyer for the defendant in the SC case did a good job (in fact, I thought that was one of the best example of lawyering I've seen at the SC in quite some time). But in regard to the case you raise, this sentence blew my mind.

"deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy…"

Say what? Why not say that it is deemed to incorporate the Holy Catholic Faith, all the Saints and Angels, Jesus Christ, and the mysteries of the Pyramids of Giza and the Bermuda Triangle as well.

If what the court says is true, when does the Ex Post Facto clause *ever* have any meaning. Heck, when does anything in the constitution have any meaning because the state can just overturn it in the interest of public policy.

"Is there police power that trumps all the other constitutional rights enough to make a plea bargain contract void or voidable? "

You might want to ask John Yoo that question.

Posted by: Daniel | Jan 15, 2009 2:34:56 PM

Daniel, I used to have faith in the system and thought it was overall fair and thought prosecutors overall pursued justice. Overall they really did. Reading about the man driving his car into a police car woke me up. I knew nothing of Three Strikes other than what was on TV supporting its passage. Even since I've followed the law more closely and it is worse and worse now.

Your thoughts are the same as mine. There is no limit to what the government can do. Contract law, ex post facto, all history if the statutes are worded right or the government argues right (though of course the Cal courts found Three Strikes not ex post facto, but there is SCOTUS precedent supporting that). I'm hoping someone picks this contract argument up and takes it to SCOTUS. Given the oral argument, it seems the Justices might be interested though of course that is no guarantee how they would rule. I don't know if this is settled on the federal level. The Cal court's lack of federal cites suggests the issue is up for grabs.

Posted by: George | Jan 15, 2009 11:36:14 PM

Daniel, forgot to add. A plea bargain as a contract is not an analogy. It is a contract and the defendant has to enter into it knowingly and intelligently. How can anyone do that without knowing the future consequences? No business contract allows that and the terms cannot change from one clause to another clause that didn't exist in the original. Imagine the chaos in business that would ensue.

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