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April 21, 2022
Interesting example of federal judge rejecting white-collar plea deal as too lenient
A story this week out of Utah provides a reminder that federal judges can still have control over sentencing outcomes even in our plea bbargained justice system of pleas. The headline of this local article captures the essence of the story: "Judge demands harsh sentence for ex-attorney accused of embezzling millions from Utah clients: Former Salt Lake City attorney Calvin Curtis faced about six years in prison as part of a plea agreement. The judge insisted on more prison time." Here are some of the details:
A federal judge in Utah tossed out a sentencing proposal Tuesday for former Salt Lake City estate attorney Calvin Curtis, demanding that the man accused of defrauding his clients out of millions receive a harsher prison sentence.
The proposal of about six years in prison had been agreed upon by federal prosecutors and Curtis’ defense attorney ahead of the hearing. U.S. District Judge David Barlow was expected to take it into consideration before imposing a sentence.
Instead, rejecting the proposal altogether, Barlow said that as Curtis allegedly stole $12.7 million from 26 of his clients — all elderly, disabled or incapacitated — over about 13 years, the suspected fraud was “cold-blooded, premeditated and repeated.” Curtis “perverted” the law, Barlow continued, and “enriched himself on the backs of those who needed his help.”
Prosecutors have argued Curtis used that money to fund a “lavish lifestyle,” which included frequent travel, expensive gifts, tickets to basketball and football games, and pricey renovations and mortgage payments on his former mansion home and office on South Temple. Assistant U.S. attorney Ruth Hackford-Peer said in Tuesday’s hearing that the proposed sentence of 73 months in prison was not a perfect resolution, “but it’s a good one.”
Several of Curtis’ victims attended the hearing, filling the courtroom along with family members and caregivers.... As the victims shared their stories of how devastating it has been to lose money that they would have used for various needs such as food, clothing, medicine and health care, a common refrain was for Barlow to impose the maximum sentence. “I don’t think Calvin is human,” one woman said quietly. “I feel that he’s the devil.”...
When it came time for Barlow to announce a decision, he said the proposed prison sentence — plus a restitution judgment of $12.7 million and supervised release for three years as part of Curtis’ plea agreement — was not harsh enough. Since Curtis’ crimes were “so heinous,” Barlow said, he should receive a prison sentence at the higher end of the range that is customary in such a case, which is 10 years. The judge added that he is “not convinced” that Curtis — who is charged with wire fraud and money laundering — takes responsibility for his actions or feels remorse.
Barlow asked the attorneys for both sides to negotiate again and come up with a new sentencing proposal. A new hearing date was not immediately set....
Laura Milliken Gray, an attorney for a woman with Alzheimer’s disease from whom Curtis has admitted to embezzling more than $9 million, called Barlow’s decision a “surprise.” Her client’s daughter-in-law, Sherry McConkey, said she is “excited” at the prospect of Curtis getting more time in prison than expected. But she added that it’s “hard” the case will go on longer, “because I just want it to be over and done with.”
April 21, 2022 at 05:24 PM | Permalink
Comments
As a (former) attorney, I am assuming that Calvin Curtis is in Criminal History Category 1, and should be facing a Guidelines Range of at least 121 to 151 months. Given the amount of money involved, $12.7 million, his Guidelines may be even higher.
Posted by: Jim Gormley | Apr 21, 2022 6:55:31 PM
Doug: What is your calculation of the Guidelines Range for Calvin Curtis, charged with wire fraud and money laundering of $12.7 million, assuming a 2 point reduction for acceptance of responsibility? Or do you think he might be getting a 3 point reduction for acceptance of responsibility?
Posted by: Jim Gormley | Apr 21, 2022 7:03:08 PM
This episode is also a reminder that plea bargaining is not the prosecutor's torture tool that it's often portrayed as being. Under the Federal Rules of Criminal Procedure, in EVERY case, not just this one, the judge can refuse to accept the bargain if the agreed sentencing range strikes him as either too lenient or too harsh. The judge's ability to do this is not limited by the Guidelines (which are advisory in any event) or by what the prosecutor wants. Moral of story: It is simply flat-out false that prosecutors control the defendant's fate through plea bargaining. Flat-out false.
Posted by: Bill Otis | Apr 21, 2022 7:39:21 PM
More lies from Otis.
Posted by: Whatever | Apr 21, 2022 7:46:53 PM
Whatever --
At least you're aptly named. If you can read, try this brickhead: https://www.law.cornell.edu/rules/frcrmp/rule_11
See especially Rule 11(c)(3).
Posted by: Bill Otis | Apr 21, 2022 8:22:36 PM
Using this rare case to say it "is simply flat-out false that prosecutors control the defendant's fate through plea bargaining," strikes me a bit like fans saying the referees control the fate of a football game rather than the activities of the players. In some rare cases, the calls of the refs can have a big influence --- e.g., I am still salty about an OSU roughing call toward the end of the first half in the Dec 2019 playoff semifinal against Clemson --- and a last-minute crucial call by a ref can make the all the preceding efforts of the players look secondary to the final outcome. But all sensible sports fans fundamentally know that how the players play the game determines if and when the refs are even in a place to make an important call. So just like it is entirely accurate to say that players fundamentally control the fate of a football game, it is entirely accurate to say prosecutors fundamentally control the defendant's fate through plea bargaining.
Of course, many other factors can come into play during charging and bargaining and can influence how prosecutors and defendants approach plea options AND judges in rare cases will object to plea terms, But that these cases are so rare and so notable ultimately serves to demonstrate that prosecutors fundamentally control the defendant's fate through plea bargaining. And every prosecutor and defense attorney knows how much plea power prosecutors have.
In this context, it is worth recalling that you think prosecutors can (and generally should?) require waivers of appeal and collateral review and compassionate release in all plea agreements. Doesn't the decision of prosecutors to demand those plea terms -- on a whim without justification or for any (generally unexplained) reasons --- serve to entirely control the defendant's fate in those respects?
Posted by: Doug B. | Apr 21, 2022 8:48:10 PM
Mr. Otis,
I am wondering what your overall awareness/experience has been with trial judges not going along with plea bargains (and not just the cases in which you were personally involved but any and all such events)? Would you say that judges kick deals back in 1% of the cases? More? Less?
In my personal experience over 25 years as a crim. defense investigator, I am aware of only 2 cases in which a federal district court judge did not go along with a deal, and in both cases because the court felt the deal to be "too lenient".
And should a judge accept the guilty plea, but then impose a sentence LESS THAN the agreed upon penalty, I have known the U.S. Atty's Office to then appeal the sentence, making a big to-do, claiming the judge to be biased and pro-criminal, or words to this effect.
It goes without saying that the court has the power and authority to accept or reject deals (no reason to bring this up, really), but real world experience says that in this day and age the "deal" offered by the prosecutor (in at least 99.9% of cases) is THE determining factor of the outcome of the case and the fate of the defendant. To imply otherwise is largely disingenuous and misleading, in my opinion.
And I am in total agreement with Prof. Berman as to the terms and conditions (waivers) imposed by prosecutors in almost all plea bargains being yet another overall determinative factor.
Posted by: sg | Apr 21, 2022 10:18:09 PM
Doug --
-- Of course the question is not how frequently the judge uses this power. The question is whether he is ALWAYS FREE to use it, and the answer is yes (which notably you don't dispute). The reason they don't use it more often is that they believe the parties reached an acceptable agreement (which is overwhelmingly what judges in civil cases think as well). Something wrong with that?
-- "So just like it is entirely accurate to say that players fundamentally control the fate of a football game, it is entirely accurate to say prosecutors fundamentally control the defendant's fate through plea bargaining."
Note how you use "players" (i.e., athletes on both teams) is the first part of your sentence, but then magically it becomes "prosecutors" (i.e., only the players on one team) in the second part. Your first part is more accurate. Yes, most of the time it IS the players who primarily control the outcome -- meaning, in criminal litigation, the government's lawyer and the defendant's lawyer. It's just blinking reality to make like the defense lawyer has no role. He has a huge role. Negotiations can't even begin without his assent. He can walk out anytime. And if he refuses to sign the final deal, there is no deal. Since when is that not being a player?
Frequently, you've had posts about how bargaining is this big secret cabal. Well, not really. It's wide open to the people with the greatest interest (the defendant and his counsel, who can put it all up on Twitter for all I care), and then has to be approved by the judge, who (as your post shows) can ask anything he wants to about it IN OPEN COURT.
Secret, schmecret.
-- "But that these cases are so rare and so notable ultimately serves to demonstrate that prosecutors fundamentally control the defendant's fate through plea bargaining."
Once again, you sound the recurrent theme of this blog -- whatever goes on, it's everybody else's fault BUT NOT THE DEFENDANT'S. Well not really. The defendant makes his own fate through his chosen conduct. If he'd chosen to have sex with a willing adult rather than a four year-old, he wouldn't be facing his current unpleasant choices. But his version of a suitable sex object is not the prosecutor's doing.
-- "In this context, it is worth recalling that you think prosecutors can (and generally should?) require waivers of appeal and collateral review and compassionate release in all plea agreements."
Nope, that's not what I think, for the simple reason that prosecutors cannot "require" anything in a plea bargain. If the defense vetoes term X.Y, or Z, that term does not go in the bargain. The prosecutor can SEEK term X, Y, or Z, and offer various inducements to try to get the defendant to agree -- sure. That's what bargaining is. Sometimes the defendant will agree and sometimes he won't. His choice not mine.
Still, I don't want to be coy about this. If I were back in the USAO, the policy would be that, ordinarily, plea bargains will contain the waiver (waiver of appeal was my particular creation). If the defense wouldn't go along, then my evil plan would be -- ready now? -- to tell the defendant that he was going to have the chance to exercise every single one of his constitutional rights before a jury of his peers.
Goodness, gracious, how dastardly!! Brusquely telling the defendant that he could require me to prove every element of my case to a unanimous jury beyond a reasonable doubt!!! How can government lawyers be so awful?
P.S. Since you bring up waivers, it's worth noting that my creation from 32 years ago (United States v. Wiggins, 905 F.2d 51, 53
(4th Cir. 1990)) has been examined, and approved, by all of the courts of appeals. If "Whatever" and his allies are waiting for me to apologize for something that expedited justice, saved a ton of taxpayer money, and met with universal judicial approval, they'll be waiting a long time.
Posted by: Bill Otis | Apr 21, 2022 10:23:36 PM
sg --
-- The great majority of judges accept the deal because they believe it's within reasonable parameters. Something wrong with that?
-- If you'd prefer more trials and less plea bargaining (as you sort of imply without saying to directly), fine. The solution is in your hands. Tell the prosecutor up front that he can save his breath and that the client will require him to meet his constitutional burden. Something wrong with that? (There are some defense counsel -- a minority to be sure -- who advertise that they do trials not deals).
-- "It goes without saying that the court has the power and authority to accept or reject deals (no reason to bring this up, really)..."
Apparently it doesn't go without saying to "Whatever," who called me a liar for bringing up what you now (correctly) characterize as obvious.
Posted by: Bill Otis | Apr 21, 2022 10:55:05 PM
@Bill Otis: I do think the vast majority of defendants have worse representation than the government does, so it is fair to say that the prosecutor has the power in most cases. The judge's power to reject a deal is almost never exercised, which is frankly a good thing. The main role of the judge is to preside over disputes, not to create a nonexistent dispute where the parties have agreed.
You are of course right that almost all criminal cases begin with the defendant's voluntary choice to do what he already knew was illegal. But as one defense attorney memorably said, "Most of my clients did *something*. But that does not mean they did precisely what the prosecution claims they did." Prosecutors have very broad discretion to charge creatively, so that the identical conduct could be charged in different places under many different theories of criminal liability, depending on what that particular prosecutor decides he wants.
Posted by: Marc Shepherd | Apr 22, 2022 9:03:21 AM
Bill, I agree that defense attorneys are players in the bargaining process AND that defendants would not even be defendants were it not for their own misbehavior (except in those not-rare-enough cases of wrongful prosecution/conviction). But in a world in which everyone knows that prisons sentences could and often will be 5 or 10 or even 40 years longer if a defendant exercises his constitutional right to jury trial, defense attorneys must regularly tell their clients that refusing plea offer on whatever terms provided by the prosecution may mean a much, much longer sentence.
As you know, the operation of sentencing guidelines (which you want made mandatory again), mandatory minimums (which you never want reduced or repealed), and acquitted conduct enhancements (which you support) are just some of the many factors that contribute to federal defendants often facing prison sentences that are 5 or 10 or even 40 years longer after a trial. Since I doubt you are going to join me in advocating repeal of these laws/doctrines and others that give prosecutors extra bargaining power in an effort to make the plea process more balanced, I wonder if you would just be prepared to encourage every prosecutors' office to have public and accessible policies and practices announced concerning how and why it asks for particular plea terms?
I know you are proud of your "creation" of waivers that have allowed federal prosecutors and judges to circumvent the statutory appeal rights Congress created. You provide a useful reminded that there has long been reason to worry about Beltway bureaucrats "creating" law to their liking contrary to laws enacted by the Democratic process. But how about you join me now in creating a means for plea bargaining process to be less secret by encouraging all prosecutors' offices to develop and publish plea agreement/bargaining guidelines and then plea practice data. Would you join me in supporting the development of public plea guidelines and the publishing of plea practice data, especially since practice shows that the choices made by prosecutors at this stage shape the outcome in 99.9% of cases?
Posted by: Doug B. | Apr 22, 2022 9:36:40 AM
Doug --
Glad to see your first paragraph includes the (previously missing) acknowledgement that defense counsel are players in the system. Indeed, they are indispensable and constitutionally-required players (in felony cases). But the rest of your first paragraph is wide of the mark, encapsulated in its final words, "...defense attorneys must regularly tell their clients that refusing plea offer on whatever terms provided by the prosecution may mean a much, much longer sentence."
What they mainly tell their clients is, "I've seen the evidence in the government's casefile, and if we go to trial we're going to lose." It's the defendant's behavior, provable by the evidence, that's his central problem. In other words, what gives the defendant his (admittedly very unappetizing) choices is the fact that the semen in the four year-old's vagina has his distinctive DNA markers. The prosecutor is not the bad guy and the law is not the bad guy. The rapist is the bad guy. Instead of wailing about the sentence he's going to get when he fails to flim-flam the jury, he should by happy that, instead, he's going to get a big break simply because the prosecutor's office is overloaded and underfunded and thus has a strong incentive to settle the case at a huge discount the defendant did nothing to deserve. And in truth and in fact, the defense bar is plenty happy, which is the real reason they go for bargains over trials.
"As you know, the operation of sentencing guidelines (which you want made mandatory again)..."
And as a fat majority in Congress wrote them and that right wing-freak John Paul Stevens wanted to keep them...
"...mandatory minimums (which you never want reduced or repealed)"
I'd consider reductions all depending on what I got in exchange. As to repeal, the First Step Act, which you enthusiastically supported at the time and now, didn't repeal a single MM. And it's worth remembering that we have MM's to start with because pro-crime judges spent about three decades proving that they couldn't be trusted. Congress in the 1980's had had it. Do you remember that is was that other right-wing freak, Teddy Kennedy, who supported mandatory guidelines (and, I think, mandatory sentencing statutes as well).
"...and acquitted conduct enhancements (which you support)."
Yup, me and the Supreme Court. Of course I would not support such enhancements if an acquittal meant the jury affirmatively found the defendant didn't do it, but it means no such thing, as you know. And while I'm at it: Do you propose repeal of the relevant conduct rule? Because that is the very pillar of the real offense system Congress put at the heart of the SRA, and was not even questioned in Booker. I mean, I hear all the time from the defense that "the defendant should be sentences as a whole person," not just for the behavior that formed the offense of conviction. I happen to agree with that. Don't you?
"Since I doubt you are going to join me in advocating repeal of these laws/doctrines and others that give prosecutors extra bargaining power in an effort to make the plea process more balanced..."
Let's pause right there. Do you really want "balance" between the power of the rapist and the power of those hoping to bring the rapist to account? Do you want "balance" between the firepower of the police and the firepower of the Crips? Do you want "balance" between the resources of those who want to make a fast buck selling smack to 14 year-old's and those trying to stop them?
I sure don't, and I don't think any sane person does. "Balance" is just being used as a seductive buzzword for those who don't think about what the world is like. I want the forces of public safety and truth-telling to have a massive advantage. And you can quote me on that anytime anywhere. Indeed I'll say it before Congress, if I haven't already.
"I know you are proud of your "creation" of waivers that have allowed federal prosecutors and judges to circumvent the statutory appeal rights Congress created."
OK, let's pause there too. Has the Biden administration rejected the waiver I created? No? Did Obama's? No. Have the courts disapproved them? No. Instead, the circuits have approved them without exception. Has Congress barred their use? No and there's never been a move to. So -- are you ready for this radical thought? -- all three branches think that, on balance, they do the justice system a lot more good than harm.
So maybe it's time, now 32 years later, for the defense bar to quit whining about them. Oh, wait, I forgot there for a moment! It's NEVER time for the defense bar to quit whining, because when the evidence has got the client dead-to-rights, whining is what's left.
More later. You've got me going.
Posted by: Bill Otis | Apr 22, 2022 11:06:18 AM
Guideline thoughts - BOL 7 - $12 million +20 = 27 to start
I don't know enough about the victims for 2B1.1(b)(2)(A), (B), or (C) - but I would suspect one of those may apply +2
Maybe sophisticated means too - how did he steal and conceal from the victims?
Then possible Ch. 3 adjustments - +2 if one of the victims was vulnerable (possibly victim with Alzheimer’s)
Abuse of Position of Trust - surely this has to apply +2
So we're looking at 33 - I am assuming the defendant is getting full acceptance -3
30 and like Jim noted earlier - probably Crim Hx Cat. I = 97 to 121 months.
I can tell you from my prior experience at a USPO, I've have had numerous defendants steal and/or embezzle and rarely when the loss exceeded $10 million, did the defendant receive a prison sentence of less than 10 years.
Posted by: atomicfrog | Apr 22, 2022 1:58:26 PM
@atomicfrog: If you are correct, then 90% of his guideline (27 out of 30) is simply due to the amount of money involved. All of the other factors are, frankly, just rounding errors. And that is how the guidelines work in general: if there is a “countable thing” in the offense, it tends to dominate, whether it’s money, drugs, or pornographic images.
This guy seems like an all-around bastard, but sometimes you’ve got cases where the offender had a very minor role, but they get a huge sentence because the countable thing overwhelms every other factor. Also, the money guidelines do not regularly adjust for inflation. $12m is obviously not a small number, and I don’t want to minimize it, but I suspect it was even bigger in real terms when the guideline was written.
Posted by: Marc Shepherd | Apr 22, 2022 6:54:52 PM
Always grateful to see you "going," Bill, and your latest comments usefully confirm that (1) you realize prosecutors control the fate of defendants, and (2) that you are fundamentally a big government, anti-individual and anti-constitutional-text guy.
(1) you describe plea deals as the result of a "prosecutor's office [being] overloaded and underfunded and thus has a strong incentive to settle the case at a huge discount the defendant did nothing to deserve." That is an account of pleas that are a product of, and controlled by, prosecutorial realities, not fundamentally the result of the work of other players in the system. You also indicate the plea discount/trial penalty is "huge," defined by prosecutors, and has no connection to the facts and factors that should shape sentencing outcomes. But, critically, I cannot fully assess the accuracy of your description because, to my knowledge, not a single individual federal prosecutor's office has ever developed public plea guidelines or published ANY plea practice data. Will you join my call for some transparency here, at the very least? I worry you will remain eager to avoid that question because you seem disinclined to embrace any reforms that would function to reduce prosecutorial power or that would require prosecutors to actually prove all sentence-enhancing conduct by the constitutional process of jury findings beyond a reasonable doubt.
(2) you seemingly do not want any reforms that could function to weaken the "prosecutors control [of] the defendant's fate through plea bargaining" because, as you explain, you do not want more "balance" between the punishment power of the state and the fate of the individual. As all students of history should know, giving the state all the power in the name of public order/safety without balancing other interests is the path toward totalitarianism. But, for a big-government statist, I suppose talk of "balance" in the exercise of big government power with concern for individuals may sound worrisomely "seductive" to those eager to ensure the application of Big Brother "firepower" goes unquestioned. Still, when talking about the state and criminal defendants in the US, "balance" is actually a much more modest word than all the express "rights" the Framers built into the text of our great Constitution for all Americans --- including people you want to give the derogatory label crips or criminals even prior to proper convictions according to constitutional standards. State power and prosecutorial power without balance, uber alles, may be appealing to those current/former state bureaucrats who believe this state power will never be misused or abused. But it is not the balance that our Framers wrote into the text of our Constitution and the most unfortunate stories in American legal history often involve courts giving too much power to the state at the expense of "others" in the name of public order/safety (eg Dred Scott, Buck v. Bell, Korematsu).
I will close by returning to my unanswered question in the hope that you would at least support some transparency, if not more balance, in the exercise of the punishment power of the state: will you join me in advocating for the federal plea bargaining process to be less secret by encouraging all prosecutors' offices to develop and publish plea agreement/bargaining guidelines and then plea practice data?
Posted by: Doug B. | Apr 23, 2022 11:36:42 AM
Mr. Otis asks, "Do you really want 'balance' between the power of the rapist and the power of those hoping to bring the rapist to account?" No, I want the benefit of the doubt to go to the person accused of rape, who could be innocent. False accusations can happen to anyone. Especially to people who don't have enough money to hire a good defense attorney.
He also asks, "Do you want 'balance' between the firepower of the police and the firepower of the Crips?" I would answer that that depends on which group kills more innocent people. I suspect that it's not the Crips. And in any case, I believe self-defense is a fundamental human right, which includes the right to possess the means for said defense. I'm especially unsympathetic to the claim that I should get an automatic five-year prison sentence if I were to peacefully possess a firearm, just because I was falsely convicted of a non-violent crime 44 years ago, with my record otherwise perfectly clean before and since. Or even if I *had* been guilty of that crime.
The government scares me far more than free-lance criminals do.
As for jury trials, I'd put more faith in them if they didn't exclude people who, like me, don't trust police testimony. Maybe require all jurors to have followed Radley Balko's blog.
Posted by: Keith Lynch | Apr 23, 2022 2:30:06 PM
I find myself wondering how much of the victims' losses Curtis can actually pay back. I would be inclined to go easier on him if he could come up with the cash and return it.
I am aware this may go against the idea that justice should be blind and should treat rich and poor alike. But I still think it makes sense. If he can make his victims fully whole, the crime has, in a sense, been undone.
Posted by: William C Jockusch | Apr 23, 2022 5:54:03 PM
Most white collar defendants like this one end up selling their homes, cars, bank, brokerage and retirement accounts, jewelry and other valuables to pay towards restitution. Yet, few defendants ever make full restitution. My memory is that restitution judgments are only valid for 20 years; yet the asset recovery units of the U. S. Attorneys Offices continue to try to collect the judgments even after they have expired.
Posted by: Jim Gormley | Apr 23, 2022 6:25:12 PM
Most criminal defense attorneys know little about the Federal Debt Collection Procedures Act, 28 U. S. Code sections 3001 - 3308. It provides the methods by which most restitution is collected by the U. S. Attorneys Asset Recovery Units.
Posted by: Jim Gormley | Apr 23, 2022 7:31:46 PM
Doug --
We always aim to please.
You ask: "[W]ill you join me in advocating for the federal plea bargaining process to be less secret by encouraging all prosecutors' offices to develop and publish plea agreement/bargaining guidelines and then plea practice data?"
Not sure what "plea practice data" means. Could you tell me? Offhand I see no objection, but I always like to know in detail what's being talked about.
As to bargaining guidelines, I'd be happy to collaborate as long as we have an understanding about what the content of these guidelines is going to be, something any sane person would want. I'd like the following to be included:
1. They guidelines will be sentence-neutral overall. That is, I don't want them to be a disguised, backdoor way of lowering sentences. Lowering should be done, if at all, by Congress, see the First Step Act.
2. Neither they nor their implementation will be subject to judicial review. The present rules expressly exclude judges from participating in plea bargaining, and I would keep that rule in letter and in spirit. If the guidelines turn out not to be working, the defense is going to have to take that up with that rightwing extremist, Merrick Garland.
3. They will create no rights enforceable by the defendant. That is, I don't want them to be the indirect tool to circumvent (2) by having the defendant file some motion to the effect that the government violated Guideline 45(c)(11) and therefore the plea agreement is void, plus we want a hearing where the US Attorney must testify for three days.
I've been around the track a few times, Doug, and I know how the defense bar operates. Every new set of rules becomes the opening gun to more diversionary, manufactured litigation not having to do with factual guilt, and more delay. I'd be foolish to walk down that path when I know what lies at the end.
Finally, I'll want something in exchange, but it won't be that much because it will merely be a ratification of existing law. The items I would like to see are (1) a specific term that any waivers in the agreement have been undertaken with the full and knowing consent of the defendant and are not subject to challenge at any later date; and (2) notwithstanding any other provision of law, the burden of proof at sentencing is preponderance of the evidence, and all facts found by the court at sentencing by a preponderance, whether aggravating or mitigating, may be used in calculating the sentence.
Posted by: Bill Otis | Apr 23, 2022 8:32:28 PM
Keith Lynch --
"As for jury trials, I'd put more faith in them if they didn't exclude people who, like me, don't trust police testimony. Maybe require all jurors to have followed Radley Balko's blog."
Two points. First, prospective jurors who IN ADVANCE discount testimony they haven't heard should of course be excluded. Keeping an open mind and all that. Second, if you're aware of a statute or court decision that approves, as consistent with First Amendment freedoms, a state requirement that jurors read any particular private writings, I hope you'll produce a citation to it. I have my doubts there is any.
Posted by: Bill Otis | Apr 23, 2022 8:43:15 PM
Keith Lynch --
"I'm especially unsympathetic to the claim that I should get an automatic five-year prison sentence if I were to peacefully possess a firearm, just because I was falsely convicted of a non-violent crime 44 years ago..."
If I remember correctly, you were convicted because you pleaded guilty in open court. When you entered that plea -- in other words, when you told the judge you did it -- were you lying?
No fancy dance, please. Were you lying?
Posted by: Bill Otis | Apr 23, 2022 9:09:19 PM
atomicfrog --
Thanks for the data. Very useful. My experience was that, especially when the Guidelines first became effective in November of '87, the USPOs were the saviors of the system. Not that many other people knew what they were doing
Posted by: Bill Otis | Apr 23, 2022 9:26:01 PM
Bill, I think of needed "plea practice data" to be comparable to the kind of data the US Sentencing Commission collects and publishes about sentencing outcomes. I assume you think it a good thing to have sentencing decisions made by federal judges tracked and analyzed, and I think we ought to be tracking and analyzing plea bargaining choices made by federal prosecutors in a similar manner. (Notably, the FIX Clemency Act calls upon "the Director of the National Institute of Justice [to] complete a review and publish a report on the charging and plea bargaining practices of U.S. Attorneys’ Offices, including racial and gender disparities." One report is a start, but this data should be gathered and assessed every year as occurs with sentencing data.)
As for your rules about plea guidelines, I agree that judges should not play a direct role in plea bargaining. But I trust you agree that bargaining rules need to comply with the US Constitution. So, I think the rules have to be subject to judicial review to consider the argument that a particular plea bargaining guideline was unconstitutional. But maybe then we would have some real problems with my plea bargaining tends to function in light of United States v. Jackson, 390 U.S. 570 (1968). Jackson suggest a legislature cannot make a rule that hinges a punishment reduction only on a decision to plea; but perhaps that ruling does not apply to an executive branch rule that hinges a punishment reduction only on a decision to plea. Gosh knows that is how pleas have functioned without rules for long time.
Last but not least, the text of the Constitution clearly states that "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury." Consequently, I think any and all offense conduct (all parts of "all Crimes") to be used at sentencing should have to be proven beyond a reasonable doubt to a jury. Any other approach does not seem to me faithful to the text of the Constitution. (But, for other sentencing facts/factors that are not related the "crime," I do not think the Constitution requires those to be proven BRD to juries.)
Posted by: Doug B. | Apr 24, 2022 12:34:04 AM
@Doug: Perhaps my ignorance here, but I am confused about this: "all offense conduct...to be used at sentencing should have to be proven beyond a reasonable doubt to a jury."
As I understand, before the SRA an offense might have a statutory penalty between 1 and 20 years in prison. A judge would evaluate the defendant's conduct to decide where in that range the sentence belonged. The factors the judge would consider were NOT require to be proven beyond a reasonable doubt. Did anyone think this was unconstitutional? Not that I recall.
Posted by: Marc Shepherd | Apr 24, 2022 9:28:48 AM
Doug --
"Last but not least, the text of the Constitution clearly states that "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury." Consequently, I think any and all offense conduct (all parts of "all Crimes") to be used at sentencing should have to be proven beyond a reasonable doubt to a jury."
The part of the Constitution you quote shows more than you give it credit for; it shows that plea bargaining itself is unconstitutional (since it's not a trial). I actually think a reasonable theoretical argument can be made for that, but it's not going to happen, and I'm not aware of a single court that has held plea bargaining unconstitutional.
Similarly, it is widely if not universally accepted that, as Marc Shepherd notes, the standard of proof at sentencing is preponderance, not BRD. See McMillan v. Pennsylvania, 477 U.S. 79 (1986). See also this USSC guidance from 2020 (https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2020/202009_fed-sentencing-basics.pdf):
"Neither the Federal Rules of Evidence59 nor constitutional
provisions related to evidentiary matters (e.g., the Confrontation
Clause of the Sixth Amendment) apply at sentencing.60 Therefore,
the court may consider hearsay and other types of information that
would not be admissible during a trial.61 However, the Commission
has stated that information considered by a court at sentencing must
have “sufficient indicia of reliability to support its probable accuracy.”62
Under Federal Rule of Criminal Procedure 32, the court “must—for
any disputed portion of the presentence report or other controverted
matter—rule on the dispute or determine that a ruling is unnecessary
either because the matter will not affect sentencing, or because
the court will not consider the matter in sentencing.”63 In resolving
factual disputes, the court ordinarily applies the preponderance of the
evidence standard."
I might add that one of the most important facts at sentencing -- whether the defendant has a belligerent or contrite attitude -- very likely cannot be "proved" at all. But it's absolutely essential, and it's hard to imagine a sensible sentencing system that excludes it.
Posted by: Bill Otis | Apr 24, 2022 10:53:42 AM
The defendant's attitude and a range of offender-related facts often used to mitigate sentences during the rehabilitative era when no facts had fixed sentencing consequences and/or when they served as the basis for parole release are not part of the "crime" set forth in the text of the Constitution. So I think those kinds of mitigating and/or offender-related facts/factors can be resolved by judges under lesser proof standards. But, as Justice Scalia in Blakely rightly said, there is a "need to
give intelligible content to the right of jury trial." As I have argued in multiple articles, the jury trial right, to be intelligible, need not demand that EVERY sentencing fact or factors be proven to a jury BRD. But, for the parts of crimes the state wishes to impose punishment, intelligible jury trial right requires any and all of this offense conduct --- all parts of "all Crimes" --- that's to be used at sentencing to be proven beyond a reasonable doubt to a jury. Here are a couple of my articles making the full argument on this front:
https://sentencing.typepad.com/sentencing_law_and_policy/files/final_conceptualizing_blakely.pdf
https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1120&context=faculty_scholarship
There is some constitutionally suspect precedent predating Apprendi/Blakely holding otherwise, but Ring overturned Watson, Alleyne overturned McMillan and Harris, and I view sensible application of Apprendi/Blakely rights to all offense conduct to be much more faithful to the constitutional text and original public meaning than any other interpretation. Of course, if you do not think the text or original meaning matters in constitutional interpretation, you might have a different view.
As for plea bargaining, I do think that is constitutionally suspect when it lacks the hallmarks of due process, and I think all would agree under some circumstances. For example, I assume few would think it sound (or constitutional) to allow a defendant to plead guilty and be imprisoned based on a "common law" crime (e.g., something we might all think is bad, but a legislature has not formally made criminal). I also suspect few would endorse a plea process in which pleas were accepted even when a defendant allocuted that he did not admit that he actually committed a crime, but he would concede the state would likely be able to be prove by a preponderance of evidence that he did. Likewise, I suspect few would be comfortable accepting a plea when a person said they were willingly taking responsibility for something that someone they loved did. If other words, the are a bunch of substantive, procedural and factual limits on plea bargaining that I think due process protects; I do think it constitutionally permissible to waive the jury rights and plea if and only when these broader due process concerns are respected. But due process is a floor that the jury rights help project, albeit in distinct ways and juries also have a community purposes (which is why the Framers wrote BOTH the Article III jury right AND ALSO the Fifth and Sixth Amendments). And so, unless and until the jury right is expressly waived AND due process also ensured, all aggravating "crime" facts have to proven to a jury BRD in my view.
Appendi, Ring, Blakely, Southern Union, Alleyne got us closer to being faithful to the Constitutional text and original public meaning, but there is still more work to do. I sure hope the recent Trump/Biden appointments to SCOTUS are faithful to their claimed commitments on this important front.
Posted by: Doug B. | Apr 24, 2022 2:49:56 PM
Mr. Otis, as I explained to you in detail twice before, I did plead guilty, I did not commit the crime I pleaded guilty to (or any other crime more serious than jaywalking), and I did not lie about it or about anything else. If a transcript of my plea allocution still exists, it's in the Arlington Courthouse, which is within walking distance of your workplace.
Posted by: Keith Lynch | Apr 24, 2022 3:17:58 PM
Keith Lynch --
"Mr. Otis, as I explained to you in detail twice before, I did plead guilty, I did not commit the crime I pleaded guilty to..."
Then you lied to the court. That's on you, not on anyone else.
"If a transcript of my plea allocution still exists, it's in the Arlington Courthouse, which is within walking distance of your workplace."
Actually it isn't. It may well be within walking distance Georgetown's main campus, but the law school is not on the main campus. Instead, it's across town, near Union Station, and Google maps says it's 13 min by car, or 6.3 miles via George Washington Memorial Pkwy and I-395, from the Arlington County Courthouse. That's not really walking distance.
It is not up to me to get you to tell the truth in court, nor to obtain transcripts for you. If you want to make your own case, do your own work. As I explained to you in detail twice before, I am not your lawyer, don't know you, and do not owe you fetching materials that you -- a fully able adult -- can get for yourself.
Posted by: Bill Otis | Apr 24, 2022 4:21:50 PM
Doug --
Just very briefly: As you can't help knowing, the uniform state of present law, years after Apprendi, Ring, Blakely, Southern Union, Alleyne (and Booker, which you oddly omit), is that the standard of proof at sentencing is, with a very few unusual exceptions, preponderance of the evidence. If a sentencing court wants to go above the statutory max, then yes, it's BRD, but that is the exception not the rule. I fail to understand why I'm being an anti-Constitutional radical for accepting what you surely know is well and long settled law with judges of all stripes.
With all due respect to legal academia and its frenetic pro-criminal bias, it does not make law. Congress does. Courts do. This is a settled question.
Same deal with plea bargaining. Its propriety, under the extensive safeguards of Rule 11 and similar rules in the states, is just not an issue anymore (except perhaps in exotic law review articles, which also do not make law). It's not those who accept it (me), but those who reject it (apparently you) who are the radicals and stand outside the mainstream.
Finally, same deal with negotiated appeal waivers. I have every federal court of appeals on my side. You have zero. All of them have considered and rejected exactly the concerns you put forward. I'm not saying the concerns are frivolous; I'm just saying they're losers, again before judges of every stripe. Unless you're prepared to say the federal judiciary as a whole is a bunch of anti-Constitution zealots, it's time to accept settled law.
Posted by: Bill Otis | Apr 24, 2022 4:41:57 PM
Bill, as the current SCOTUS will likely be showing us again in a matter of months, what is established precedent is only good law as long as the current Court respects it. When you were a prosecutor, you could say (and likely did say) that it was settled law that nobody could claim the Second Amendment provided an individual right. Heller and McDonald changed that, and the Court reasonably claimed in those cases that their rulings were more faithful to the text and original meaning of the Constitution than the "settled" precedents of prior eras. Lots of folks rightly say now that abortion rights and the lawfulness of race-based affirmative action are settled law. Are you preaching to those folks challenging those precedents that "it's time to accept settled law" even as they claim that the the text and original meaning of the Constitution call for a different understanding?
I think you have long praised Justice Thomas, who seems to be the Justice most eager to say, in seemingly any setting, that if settled law does not sit well with the text and original meaning of the Constitution, then so-called settled law needs to change. After all, officials and judges do not swear oaths to judge-invented precedents; they swear oaths to the Constitution and laws of the United States. It is often said we are all textualists and originalists now, and I am ever eager to have us both get with that program in this setting.
You are right that "settled law" has had judges inventing all sorts of pro-state, civil-law innovations, like increasing criminal punishment based on a civil standard of proof and allowing waivers concerning future legal rights. But this "settled law" seems to me wholly inconsistent with the text and original meaning of the Constitution (and statutory laws in the case of appeal waivers). The fact that you keep citing judicial rulings (including overturned ones like McMillan v. Pennsylvania) BUT NEVER ONCE CITE ANY TEXT OR ORIGINAL MEANING of the US Constitution to support your position fundamentally makes my key point here -- namely that you care not about fidelity to the text and its efforts to safeguard individual rights, but rather about increasing prosecutor/statist power. That's your prerogative as a policy matter, but it is entirely contrary to what the text and Framers' original meaning for the Constitution had in mind. Justice Scalia explained this point well at the close of his opinion in Blakely:
"Ultimately, our decision cannot turn on whether or to what degree trial by jury impairs the efficiency or fairness of criminal justice. One can certainly argue that both these values would be better served by leaving justice entirely in the hands of professionals; many nations of the world, particularly those following civil-law traditions, take just that course. There is not one shred of doubt, however, about the Framers’ paradigm for criminal justice: not the civil-law ideal of administrative perfection, but the common-law ideal of limited state power accomplished by strict division of authority between judge and jury. As Apprendi held, every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment."
I am prepared to say that the federal judiciary, arguably led by Justice Breyer at various points, has too often elevated civil law efficiencies and state power over the text and original meaning of the Constitution. And unless and until you can start explaining how text and original meaning supports your civil-law statist approaches to these matters, I will remain skeptical that you really care about anything other than the big government policy outcomes that your prefer. That's fine, just own up to the apparent reality that when text and original meaning do not support your preferred outcome, you are even more eager than folks on the left to completely ignore text and original meaning in favor of the judge-made doctrines that you prefer.
Posted by: Doug B. | Apr 24, 2022 6:13:51 PM
Doug --
Again only briefly and partially:
-- "When you were a prosecutor, you could say (and likely did say) that it was settled law that nobody could claim the Second Amendment provided an individual right." Not to my knowledge. I never believed it was true, for one thing.
-- "Lots of folks rightly say now that abortion rights and the lawfulness of race-based affirmative action are settled law." Those would have to be folks who've been living in a cave for a couple of generations. I'd say those two areas are the very definition of unsettled if not volcanically unsettled.
-- "You are right that "settled law" has had judges inventing all sorts of pro-state, civil-law innovations, like increasing criminal punishment based on a civil standard of proof and allowing waivers concerning future legal rights. But this "settled law" seems to me wholly inconsistent with the text and original meaning of the Constitution (and statutory laws in the case of appeal waivers)."
What language in the Constitution says that sentencing facts must be proved BRD? Isn't it true that the preponderance standard has been in place from the time of the Founding? And what language in the Constitution says that a criminal defendant cannot waive rights that belong to him if done knowingly and voluntarily, and in exchange for something he rationally finds more valuable? If such language is there, I never saw it. And has Justice Thomas ever questioned either the defendant's right to waive his trial or his appeal in a plea bargain? Has any other Justice? Again, I'll be interested to see the quotations, if there are any. (But I'm glad to see you're a fan of Justice Thomas, who's been exceptionally gracious to me and my wife).
I guess what succeeds in law review articles -- given academia's imperative to publish
-- is some snazzy view of what the Constitution requires (which almost always turns out to be -- guess what? -- the author's policy preferences!!!). But I can tell you, from years of litigating cases, and almost always winning them, that what succeeds in court is citing governing precedent. Somehow I'm having a hard time thinking of myself as a Constitution-Betraying Lawyer because I did, and believe in doing, what virtually every successful lawyer does.
Yes, case holdings can be overruled (the quick turnaround at SCOTUS on the propriety of victim impact statements comes most readily to mind), but, with all respect, you are way too quick to say that whatever view most favors the criminal is the one the Founders had in mind. My memory of legal history is that, for the most part, Founding era criminal law was much LESS favorable to the accused, and much MORE favorable to the state, than what we have now.
Posted by: Bill Otis | Apr 24, 2022 9:21:13 PM
The words I quoted from Justice Scalia in Blakely are 18 years old, Apprendi is now 22 years old, and both included Justices Thomas and Scalia basing their votes for the defendant's jury trial/BRD rights on originalist grounds. The jury trial is twice championed in the Constitution, and the due process clause has been long understood (on originalist and other grounds) to require jury findings BRD. I do not think I am "too quick" when wanting and expecting textualists and originalists to take seriously the Blakely holding that "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment."
The Constitution does not speak of "sentencing facts" (or sentencing in any way) because, as Apprendi explains, sentencing outcomes at the founding were fixed by jury verdict. (And, back then, juries considered matters of fact and law in decisions whether to convict.) From what little I have read, the preponderance standard emerged in the 19th century, though there is some debate as to just how much earlier the the BRD standard was formally used in courts. (Some trace it to the early 1700s, other have it later in that century.)
As for waivers, let me ask you this: Could a prosecutor now demand in a plea agreement that a defendant, for a lesser punishment now, agree to being tried by a jury by a preponderance standard in any and all future criminal prosecutions (eg waive BRD rights in all future trials)? I do not think there is any express text saying this violates the Constitution. Do you think this would be constitutional?
I fully understand why, Bill, when you were a prosecutor that you sought to take advantage of every existing precedent you could to get defendants to waive constitutional and statutory rights to make your job easier and achieve what you thought was a righteous outcome. This is what lawyers generally do. But that does not mean what you were doing was consistent with a proper textualist and originalist understanding of the Constitution (indeed, I am sure you advocated for application of mandatory federal sentencing guidelines, which Booker rightly concluded violated the Constitution).
Posted by: Doug B. | Apr 24, 2022 10:08:22 PM
Doug --
Let me start with your last line: "I am sure you advocated for application of mandatory federal sentencing guidelines, which Booker rightly concluded violated the Constitution."
That's not what Booker held. It held that mandatory guidelines DO NOT per se violate the Constitution -- and in fact could be re-instituted by Congress with some changes, something the Court went out of its way to stress -- but that the then-existing system of guidelines, which permitted the imposition of a sentence above the statutory maximum, were unconstitutional when proof of the fact or facts that RAISED THE SENTENCE TO THAT EXTENT was by a quantum less than BRD. But for sentences within the statutory range (which is the huge majority of them), the Booker court did not even imply, much less hold, that proof BRD is needed. That's why, in the 17 years since Booker (not a short period of time), ALL the courts of appeals have continued to hold that, except in the one (relatively rare) circumstance Booker addressed, the burden of proof at sentencing is a preponderance of the evidence.
It's possible, of course, that every federal court of appeals in the country is just as blockheadedly disrespectful of the Constitution as you think I am, but what are the chances of that?
Over all that time, the defense has had the chance to make, and has made, exactly the argument you present here. When all 12 circuits say "no dice," I don't think I'm the one with the outlier position.
Posted by: Bill Otis | Apr 25, 2022 8:38:02 AM
Doug --
You also raised a hypo I think deserves addressing: "Could a prosecutor now demand in a plea agreement that a defendant, for a lesser punishment now, agree to being tried by a jury by a preponderance standard in any and all future criminal prosecutions (eg waive BRD rights in all future trials)? I do not think there is any express text saying this violates the Constitution. Do you think this would be constitutional?"
This reminds me of the old nasty joke about the French: "Q: How many Frenchmen does it take to defend Paris? A: No one knows, it's never been tried."
And that's pretty much my answer to your hypo. It's a nifty law professor-type exercise, but I suspect your scenario has never been tried in real life precisely because it's pretty far off the beaten path (and perhaps also because prosecutors are naive enough to think that, just maybe, the current unpleasantness might be enough to persuade Mr. Nicey to get an honest job and not re-appear as a defendant).
There are undoubtedly some things that won't wash as conditions of a plea agreement, for example, that the defendant agrees to cut off the hand he used to molest the little girl. I don't know where the line is going to get drawn. But I do know that sentencing appeal waivers, which are now routine, are on the safe side of that line.
Posted by: Bill Otis | Apr 25, 2022 9:04:18 AM
Bill, you are right that I should have said, for accuracy, that Booker held that any mandated sentence enhancement that raises the ceiling of available punishment -- whether by statute or guideline -- cannot be based on factfinding by a judge by a preponderance without violating the Fifth and Sixth Amendments. Prior to that ruling by SCOTUS, I am sure you argued throughout the 1990s -- and all 12 circuits held throughout the 1990s -- that such judicial punishment enhancement findings were sound and had to be applied in every guideline case. Sorry for using inaccurate shorthand to describe Booker, as you are right that we can (and still do) have mandatory sentencing rules if/when there is constitutionally sound factfinding to support them.
Meanwhile I find it jarring and disconcerting that you say Booker dealt with a "relatively rare" circumstance. Hundreds of thousands of sentences were based on constitutionally problematic mandatory judicial factfinding and guideline application from 1989 to 2004 before the Blakely/Booker rulings. Booker radically changing the operation of the system by making the guidelines advisory, though you rightly say that SCOTUS precedent and lower court rulings continue to embrace the notion that so-called "advisory" judicial factfinding and guideline application is constitutionally permissible as long as a judge has complete discretion to ignore the guideline range created by judicial factfinding.
When Scalia/Thomas et al. declared the mandatory guideline factfinding system unconstitutional in 2005, I did not consider lower courts or all prosecutors and others who previously embraced an unconstitutional mandatory factfinding system to be "blockheads." Though they applied an unconstitutional system for 15+ years in hundreds of thousands of case send millions to longer terms of imprisonment, they were following existing (bad) established precedents throughout the 1990s. Following valid (though problematic) law is part of a commitment to the rule of law until the law is duly changed.
As I said before, I continue to view Apprendi, Ring, Blakely, Southern Union, Alleyne as changes bringing us closer to being faithful to the Constitutional text and original public meaning, but there is still more work to do. I left Booker out of that list because I think the advisory guidelines remedy --- as it has been applied by lower courts to still allow acquitted conduct enhancements and other problematic jury-evading crime-based sentencing enhancement --- has constitutional flaws for not respecting the Fifth and Sixth Amendments. (I also think appeal waivers OF SENTENCING ISSUES should not be considered on "the safe side" of the acceptable line of plea term because I do not think it proper to allow waiver of a right to appeal legal errors surrounding a proceeding that has not yet taken place and that was created by Congress specifically to seek to reduce/rectify those errors.)
But you are right that federal prosecutors have long been successful in convincing federal judges to prioritize civil-law statist approaches to these matters rather than showing what I consider to be fidelity to the text and original meaning that favor individual rights. I hope the arc of justice will keep bending the Apprendi way, but I am not holding my breath (see, eg, Haymond).
Posted by: Doug B. | Apr 25, 2022 9:31:23 AM
Doug --
"I also think appeal waivers OF SENTENCING ISSUES should not be considered on "the safe side" of the acceptable line because I do not think it proper to allow waiver of a right to appeal legal errors surrounding a proceeding that has not yet taken place and that was created by Congress specifically to seek to reduce/rectify those errors."
But that applies equally, indeed it applies a fortiori, to the waiver of the defendant's right to trial. The trial, just like the sentencing, is, at the bargaining stage, in the future. The errors and surprises that can happen at trial, just like the ones that can happen at sentencing, are in the future. And the right to trial was created by the Founders specifically to seek to reduce/rectify sending someone to jail simply on the prosecutor's accusation.
In other words, the logic of your argument is that NO PLEA BARGAIN AT ALL is permissible, a plea bargain being precisely a waiver -- that is, a waiver of the defendant's right to trial.
And maybe you're correct about that. It's just that no court, having heard your argument and variants of it dozens if not hundreds of times at this point, thinks so.
Posted by: Bill Otis | Apr 25, 2022 9:51:12 AM
@Bill Otis: I know that no court has ever found appeal waivers unconstitutional. Has there ever been a dissenting judge, e.g., a 2-1 COA decision?
Posted by: Marc Shepherd | Apr 25, 2022 10:26:20 AM
One interesting issue from the notorious case defendant Sholam Weiss (he was sentenced to 845 years, and served 18 years in Federal prisons before having his sentence commuted by President Donald Trump on his last full day in office) is that his $125 million of restitution was actually fully paid. Weiss had arranged for National Heritage Life Insurance Co. to purchase non-performing mortgages at a steep discount from the face value, with the idea that substantial value could be created by bringing those borrowers back into making payments and performing. When the Court-appointed receiver actually sold those mortgages, they had in fact increased in value. Weiss's section 2241 Habeas Corpus case was handled by Prof. Steve Saltzburg of G. W. Law School and resulted in a sentence reduction of 10 years. The result was roundly criticized because the Habeas Judge merely made a 10 year reduction, without holding a full re-sentencing hearing. If a full re-sentencing had occurred, Weiss's Guidelines Range would have been lower than it was at the original sentencing in absentia. But the full $125 of restitution was paid.
Posted by: James Gormley | Apr 25, 2022 10:46:36 AM
Marc Shepherd --
Yes, I'm pretty sure there have been dissents. At one time, I used to have a list of the cases, but since all the circuits came on board (and I left the government) I have no clue where it is.
Posted by: Bill Otis | Apr 25, 2022 11:32:02 AM
Bill, we need to get more refined for me to highlight important differences between jury trial waivers and sentencing appeal waivers, and this forum does not make that easy. I will start by saying that if a defendant is getting an absolute fixed sentence as part of the plea deal, including all the terms of supervised release and everything that goes with sentencing AND if he is knows he is clearly getting a sentencing discount as a direct result of giving up the right to appeal the sentence, then a sentencing appeal waiver is somewhat comparable to the waiver of the jury trial. But there are still big difference because of the big difference between the range of trial outcomes and sentencing outcomes --- trials have a binary outcome, guilty/not guilty, and it is very easy for a defendant/defense attorneys to understand the stakes and benefits from a trial waiver and to understand the evidence likely to impact the trial outcome. In addition, because a trial is just a test of guilt, a defendant should reasonably be able to predict the likely outcome of that test. In contrast, sentencing outcomes can and do run the gamut of possibilities, what evidence will come forward and be a focus for the judge is often unclear (and varies from judge to judge), and a wide range of prison terms and conditions of community supervision are all in play. A defendant is almost always NOT able to reasonably predict how he will be sentenced. Moreover, there is a factual right/wrong to the binary question at the trial, there is no obvious binary right/wrong at sentencing.
For a bad sports analogy, is see assessing trial pros/cons and assessing sentencing pros/cons is somewhat like the difference between predicting who will win tonight's Red Sox/Blue Jays game and predicting the precise outcome of every game of the World Series in Oct 2022. I can predict a range of possibilities for the 2022 WS, but tonight's Sox/Jays game is much easier to predict. In the sports betting world, I get much better "odds" for making the harder prediction right --- but in the courtroom, most defendants are getting most of the benefit from waiving a predictable trial and little for giving up an appeal.
In the end, I do not think that the Framers would have been keen to see jury trial rights bargained away in 97 cases out of 100, but I do think defendants can knowingly and intelligibly decide they will take a lower sentence in direct exchange for admitting guilt and saving the government the burden of proving that guilt. Though I strongly believe the extreme plea discounts/trial penalties often create harmful pressure around making a trial waiver, at least defendants can see the direct benefit and reasonably assess the stakes. But, especially because sentencing options are so hard to assess, the "right" outcome is always subject to great debate, and because the leading research shows that "some defendants appear to receive neither greater certainty nor leniency in return for signing wide-open and unlimited waivers of their rights to review," sentencing appeal waivers are different animals in so many ways. https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1269&context=dlj
Of course, to get to an earlier point, if a prosecutor's office had clear, consistent and sensible guidelines about all this --- e.g., we give you a 25% sentence discount for pleading guilty, and an additional 10% discount for waiving appeals, but we will not enforce the waiver if your sentence is above some ceiling --- I might be much more comfortable that appeal waivers were truly knowing and intelligible and not just a bonus baby for prosecutors. But we do not have that, we have prosecutors making this stuff up as they go along, thanks in part to your creation. Because I find that highly problematic in our scheme of government, I am not comforted by the jurisprudence that fails to engage these realities (which first called these waivers jurisdictional and then realized they needed to be enforced with all sort of exceptions, but really should be deemed suspect absent at the very least a clear accounting of what the defendant got in return.)
Posted by: Doug B. | Apr 25, 2022 1:13:45 PM
Mr. Otis: Again, you asked me a question -- the same one. Again, I answered it to the best of my recollection, promptly, politely, and truthfully, and again I told you where you can get more information. Again, you responded that you are not my lawyer. Again I reply that I never asked you for any legal advice or services. Indeed, I would not, since you're obviously prejudiced against accused people. You also called me a liar. I thought politeness was required here.
What would be the *point* in my going to the courthouse to satisfy your curiosity? If I learned that the transcript of my plea allocution no longer existed, or that it never did, and I told you so, you would call me a liar. If instead I learned that the transcript existed, and I got a copy, and I told you what it said, you would also call me a liar.
I was mistaken about exactly where in DC you worked, but it's still walking distance. I've walked from near where you work all the way to Vienna, and I'm no athlete. Given that either of us could have turned out to be anywhere in the US, it's a wonderful coincidence that you just happen to work so close to where the answers you seek can be found, if they can be found anywhere.
But suppose I *had* been guilty. Again I ask why I should be permanently forbidden to possess a gun in my own home. I have never been convicted, or even accused, of any *violent* crime, and I have had a perfectly clean record since before most people alive today were born. Should I also be forbidden to own a car? Cars kill more Americans than guns do. Punishments should be finite, except perhaps for murder and treason.
As for disregarding all police testimony, police aren't all killers, but they are all liars. It's a job requirement (the notorious gaslighting Reid technique). And police who lie under oath are almost never jailed, or even fired. Yes, SCOTUS said they're allowed to lie to suspects. But they didn't say -- they can't say -- that suspects, jurors, or judges are then required to believe them. When a cop speaks, he may be telling the truth or he may be lying. I have no way to tell, unless there's corroborating evidence. In which case I would pay attention to that other evidence, but not to his testimony. As do all rational informed jurors.
Posted by: Keith Lynch | Apr 26, 2022 8:17:08 AM
Keith Lynch --
"You also called me a liar."
You told the judge you committed the crime, and you say here you didn't. One of those is a lie.
"I thought politeness was required here."
Oh right, politeness is required here!! Sure it is. But for however that may be, it's a matter of basic logic, not courtesy vel non, to observe that when a person intentionally says X in one place and not-X somewhere else, one of those is a lie.
Posted by: Bill Otis | Apr 26, 2022 10:21:41 AM
I may have told him that I committed "a" crime, yes, since my court appointed lawyer told me I was "technically guilty," without saying of what, though he implied that it was trivial, and that the judge would give me probation or time served, and release me immediately.. Presumably something like unknowing possession of stolen property, or failure to supervise my (minor) roommate.
Or I may have stated that I was completely innocent, but pleading guilty anyway. I don't remember. It was 44 years ago, I was completely confused, and I put my full trust in my lawyer. The only thing I was guilty of was gullibility in the first degree. I do remember how surprised I was when I later learned that what I had pled guilty to was burglary.
Your implied claim that it's impossible to plead guilty without confessing is obviously false, since otherwise the Alford plea would be a contradiction in terms.
I explained all this to you before.
If you want to argue that I *didn't* plead guilty, given that there was no meeting of the minds, and that my plea was not knowing and intelligent, I won't argue. But the Commonwealth treated it as valid, and still does. You might as well claim that the American Revolution was illegal, hence we're still ruled by Britain. Or that Ukraine doesn't need to fight, since what Russia is doing there is unauthorized, hence doesn't count. What happens in this world doesn't depend on the law, or on justice, it depends on raw power. And I had no power.
44 years ago, poor people stood no chance in court. Today the same is true of middle class people. Only the wealthy can afford a decent felony defense. Sure, most Americans can afford to hire a lawyer, i.e. someone with a law degree. That doesn't mean that lawyer has any skill at winning trials, or any conception of the countless dirty tricks, lies, and coercion employed by prosecutors, police, and jailers, trained to win at any cost.
The good news is that the people are more and more skeptical of our so-called justice system, which is designed not to seek truth, not to seek justice, but to get convictions regardless of the facts. If I were in your shoes, and were religious, I'd be living in fear of what would happen to me when I faced *real* justice.
Posted by: Keith Lynch | Apr 27, 2022 8:21:54 AM