« Prison Policy Initiative details "Nine ways that states can provide better public defense" | Main | Is the politics of crime and punishment now different than in our recent history? »

July 28, 2021

Ohio Justice provides insider take on "sentencing by ambush" due to plea bargaining process

This local court press piece, headlined "Justice Admonishes ‘Sentencing by Ambush’," reports on a notable new law review article authored by Ohio Supreme Court Justice Michael Donnelly. Here are excerpts from the press piece (with links from the original):

An Ohio Supreme Court justice is seeking reforms to plea deal processes, which he says are full of unknowns for defendants, who often surrender their constitutional rights.

Justice Michael P. Donnelly lists his concerns and solutions about discrepancies in plea agreements and their outcomes in an article published by the Akron Law Review titled, “Sentencing by Ambush: An Insider’s Perspective on Plea Bargaining Reform.”

In the piece, Justice Donnelly details observations from his 14 years as a Cuyahoga County Common Pleas judge and how his experiences on the trial court bench, paired with his perspective as a member of the Supreme Court, compelled him to write about the need for systemic change to plea arrangements.

“Would you ever enter into a contract when you had no idea what benefit you would receive… [or] without knowing the terms to which you were obligating yourself?” Justice Donnelly asks in the article. “Regrettably, … criminal defendants do that every single day.”

The article explains the legal course of plea bargaining: a prosecutor and defense attorney settle on a recommended punishment, and a judge ultimately determines the sentence. Justice Donnelly highlights multiple procedural flaws that occur in pursuit of this type of conclusion to a case.  The fundamental issues Justice Donnelly raises are magnified because U.S. Department of Justice researchers estimate 90% to 95% of cases — state and federal — are resolved through plea deals.

He notes that prosecutors can charge multiple and different offenses based on the facts from a single event as a means of leverage against a defendant.  The high court jurist also points out two main inconsistencies in plea proceedings: Not all judges accept settlements between the prosecution and defense, and not all plea negotiations are on the record.

“One of the biggest threats to public confidence in the criminal justice system [stems] from off-the-record sentencing representations, whether from a judge in chambers or a defense attorney’s informed speculation,” Justice Donnelly wrote.  As a means for transparency, the justice recommends that all discussions take place in open court. He believes a documented dialogue would ensure negotiations are fair between the prosecution and defense, which would include stating the rationale for the agreement....

Addressing sentencing issues also is the aim of a larger initiative, led by Chief Justice Maureen O’Connor and Justice Donnelly, to develop a statewide sentencing database.

Both efforts emphasize the need for transparency as a way to provide more uniform and proportional sentences across the state, while limiting implicit bias.  “This reform would provide decision-makers (judges, prosecutors, defense counsel, and legislators) with information that is essential to ensure that better decisions are made regarding the most serious issue of incarcerating individuals,” Justice Donnelly said.

July 28, 2021 at 09:40 AM | Permalink


The worst example of this phenomenon I have seen of a defendant getting ambushed at sentencing was the case of James Terry in Tampa, Florida, circa 1998. He went into sentencing thinking that he was looking at Guidelines of like 18 to 23 months for distributing 2 grams of heroin to a friend at a party. He walked out of sentencing with a life sentence in Federal prison for "distribution resulting in death". The problem is that the person to whom he distributed the 2 grams is not dead and was himself sentenced to 20 years in prison for "distribution resulting in death". Unbeknownst to Mr. Terry, his friend used only 0.5 gram of the heroin, and the next day, he sold the other 1.5 grams to two long-term drug addicts, who both had long addiction histories with several prior overdoes. Those two men used the heroin together with other drugs (cocaine and Valium) and died the next day. A Grand Jury refused to indict Mr. Terry for conspiracy to distribute, because there had been no agreement for further distribution of the 2 grams. So how did this happen to Mr. Terry? Well, one of the two men who died of an overdose was the son of a 30-year secretary, working in the U.S. Attorney's Office in Tampa. The prosecutors pushed for the life sentence enhancement at sentencing. The Judge went along with it. And defense counsel failed to object to preserve the issue for appeal (of course, as part of his Plea Agreement, Mr. Terry had waived the right to appeal his conviction, but not his sentence). The Eleventh Circuit affirmed his life sentence, and Mr. Terry spent the next 20+ years litigating two 2255 Habeas Corpus Motion and finally, a SUCCESSFUL 2241 Petition in U.S. District Court in Arizona (where he was then incarcerated). The 2241 Petition is based upon the Supreme Court's decision in Burrage v. United States, 571 U.S. 204 (2014) (for sentencing enhancement to apply, Defendant's conduct must be a "but for" cause of the victim's death). The actual granting of Mr. Terry's 2241 Motion occurred during a status conference in the Judge's Chambers, which the defendant was attending by ZOOM! The prosecutor conceded that the enhancement could not possibly apply to Mr. Terry under these facts and that no rational jury could have found him responsible for "distribution resulting in death". Thus, the District Judge entered a Minute Order in Chambers, granting the 2241 Habeas Corpus Petition. This was later followed by a re-sentencing Order, where Mr. Terry was re-sentenced to "time served" [the 20-year statutory maximum sentence under 18 U.S.C. section 814(b)(1)(C), for simple distribution]. It's a wild case, which should justify a law review article about plea bargaining gone wrong. Ironically, Mr. Terry later returned to Federal prison near Tampa for a few months for violating the terms of his Supervised Release.

Posted by: Jim Gormley | Jul 29, 2021 9:53:58 AM

One of the sub-issues of plea bargaining is whether defense counsel conveyed the plea offer (and accurately) to the defendant, whether defense counsel correctly explained to the defendant his sentencing exposure if he goes to trial and is convicted, and whether defense counsel recommended that his client accept the plea or not. There has been much habeas corpus litigation of these issues because nothing is generally reduced to writing (although some defense lawyers to reduce the offer, trial sentencing exposure and recommendation to writing in a letter to the client -- CYA!). It would become helpful if Court Rules required that such communications between defense counsel and the defendant be placed in writing and filed UNDER SEAL, in case of subsequent allegations of ineffective assistance of counsel at plea bargaining. With the communications reduced to writing an filed in the record (under SEAL), there is later no question about what was communicated and what was not. This would bring to an end much time consuming Habeas Corpus litigation about he said -- she said at plea bargaining, and enhance the public's confidence in the plea bargaining process.

Posted by: Jim Gormley | Jul 29, 2021 10:05:39 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB