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July 5, 2017

Federal district judge explains his remarkable reasons for rejecting an unremarkable plea deal in heroin dealing prosecution

A helpful reader alerted me to a fascinating opinion issued last week by US District Judge Joseph Goodwin of the Southern District of West Virginia in US v. Walker, No. 2:17-cr-00010 (SD W. Va. June 26, 2017) (available here).  The full opinion is a must read, and here is its conclusion:

My twenty-two years of imposing long prison sentences for drug crimes persuades me that the effect of law enforcement on the supply side of the illegal drug market is insufficient to solve the heroin and opioid crisis at hand. I also see scant evidence that prohibition is preventing the growth of the demand side of the drug market. Nevertheless, policy reform, coordinated education efforts, and expansion of treatment programs are not within my bailiwick. I may only enforce the laws of illicit drug prohibition.

The law is the law, and I am satisfied that enforcing the law through public adjudications focuses attention on the heroin and opioid crisis.  The jury trial reveals the dark details of drug distribution and abuse to the community in a way that a plea bargained guilty plea cannot.  A jury trial tells a story.  The jury members listening to the evidence come away with personally impactful information about the deadly and desperate heroin and opioid crisis existing in their community.  They are educated in the process of performing their civic duty and are likely to communicate their experience in the courtroom to family members and friends.  Moreover, the attendant media attention that a jury trial occasions communicates to the community that such conduct is unlawful and that the law is upheld and enforced.  The communication of a threat of severe punishment acts as an effective deterrent.  As with other criminalized conduct, the shame of a public conviction and prison sentence specifically deters the sentenced convict from committing the crime again — at least for so long as he is imprisoned.

Over time, jury verdicts involving the distribution of heroin and opioids reinforce condemnation of the conduct by the public at large. In turn, respect for the law propagates.117 This respect for the law may eventually reduce such criminal conduct.

The secrecy surrounding plea bargains in heroin and opioid cases frequently undermines respect for the law and deterrence of crime.  The bright light of the jury trial deters crime, enhances respect for the law, educates the public, and reinforces their sense of safety much more than a contract entered into in the shadows of a private meeting in the prosecutor’s office.

For the reasons stated, I REJECT the plea agreement.

It will be quite interesting to see if the parties appeal this rejection of the plea agreement or if the defendant decides to plea without the benefit of any agreement (which I believe must be accepted if the judge finds it is voluntary).

July 5, 2017 at 09:04 AM | Permalink


I wonder if this will be a thing for this sort of crime or that the fact a grand jury indictment was obtained and/or the long term record of the defendant etc. made things different somehow.

Posted by: Joe | Jul 5, 2017 9:57:35 AM

The real down side I see to an open plea is that none of the charges go away if that route is taken, and given that most plea agreements call for a within-guidelines sentence for the charges that remain that seems like the major benefit to the defendant.

Would it be possible to plead guilty to the charges the government wants and reserve the rest or is that an all or nothing situation? If that is possible I suppose it could be done and then hope that the prosecutor gives over on the remainder.

Posted by: Soronel Haetir | Jul 5, 2017 11:43:01 AM

Prohibition works. It dropped the heroin addiction rate 95% in Vietnam veterans returning to the US. Alcohol prohibition dropped consumption only 50%, and that era was highly successful.


Posted by: David Behar | Jul 5, 2017 12:23:31 PM

I know in state court here, it is absolute discretion to reject a plea. Of course, the judge can't prevent the prosecution from dismissing and refiling with reduced charges (potentially allowing the parties to get a different judge on the new case).

I can understand the general philosophy that plea bargaining excludes the general public from participation in the judicial system and that, therefore, some cases need to go to trial. (Professor Akhil Amar has written at length on the "educational" and public participation roles of the jury at the time of the framing.) If choosing one case as a teaching moment for the public, I would hope that the judge will remember on the back end that this case went to trial because the court wanted a trial, not because the parties did.

Posted by: tmm | Jul 5, 2017 1:18:44 PM

What I see here is the possible birth of the new boogeyman. Now that the politicians and goodie goodie nuts have beat the SEX OFFENDER hysteria till it's a dead horse. They need a new one. At Least this one does have a high reoffense rate

Posted by: rodsmith3510 | Jul 5, 2017 6:34:26 PM

There are two key things the Court's decision hides via omission:

Was this a BINDING plea agreement under (c)?

Was the charge in the Information without a drug amount or limited to a non-mandatory minimum amount?

I assume both are true, and that the Judge may have seen a vast difference between the Indictment and the (in my assumption) sweet sweet deal that would tie the Court's hands.

Posted by: USPO-Retired | Jul 5, 2017 7:22:11 PM

Another point I thought of, I don't see how the putative jurors would learn much about the sentencing as that is information they are specifically not provided. And any sentence would come down long after the jurors are done.

Posted by: Soronel Haetir | Jul 5, 2017 8:40:21 PM

tmm, actually, a reading of Frye v. Missouri would likely give an argument that the Court was compelled to take the fact that the parties didn't want the trial.

Posted by: federalist | Jul 6, 2017 10:07:53 AM

Federalist, I am not seeing how Missouri v. Frye would support a constitutional right to plead guilty. Frye was an IAC case in which counsel failed to advise the client of the plea offer (and thereby was incompetent) with the likelihood that the court would accept the plea being part of the prejudice prong. While there is certainly language in Frye recognizing the significance of plea bargains in the system, neither Frye nor the companion decision in Lafler require the trial court to accept that plea bargain after setting aside the original sentence and judgment.

Posted by: tmm | Jul 6, 2017 10:31:15 AM

The opinion says nothing about the details of this particular plea agreement, especially the two critical facts identified by USPO-Retired (7:22). Without those facts, everything in the opinion appears to apply to plea agreements in general, not just this one. The opinion boils down to: this judge prefers trials to plea agreements (and by the way this particular defendant is a recidivist). Hard to see how that overbroad reasoning stands.

In all likelihood this gets overturned for abuse of discretion, or at the very least remanded for additional explanation of reasoning.

Posted by: Def. Atty. | Jul 6, 2017 10:59:42 AM

tmm--if the idea is that there is some sort of liberty interest in a plea deal (see Kagan at oral argument), then what difference should it make that it was taken away by an idiosyncratic decision of a judge? I wasn't saying that Frye dictated the result--but there is a logical argument here.

Posted by: federalist | Jul 7, 2017 12:34:08 PM

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