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June 16, 2022

Bipartisan group of House members introduce bill to allow judges to reduce sentences to "protect the constitutional right to trial"

This press release from the office of Representative Victoria Spartz reports on a notable new bill seeking to address concerns with so-called "trial penalties."  Here is the text of the release:

U.S. Rep. Victoria Spartz (IN-05) introduced the bipartisan ‘Right to Trial Act’ with her colleagues Reps. Hakeem Jeffries (NY-08), Kelly Armstrong (ND-AL), Karen Bass (CA-37), Morgan Griffith (VA-09), Cathy McMorris Rodgers (WA-05), Guy Reschenthaler (PA-14), and David Trone (MD-06). This legislation would strengthen the constitutional right to trial and mitigate abuses of prosecutorial authority in our federal justice system.

“Our Founding Fathers provided for trial by jury in our Constitution as a safeguard of our liberties,” said Rep. Spartz.“This constitutional right is essential to protect against the tyranny of government and the police state.”

Approximately 97% of defendants subject to federal charges plead guilty, up from nearly 85% in the early 1990s. Despite their constitutional right to trial, defendants face steep mandatory minimum sentences if they choose to exercise this right—driving defendants into one-sided plea negotiations.

“Throughout my time as a district judge, I saw the extreme disparities between sentences offered in plea deals and sentences given to those who went to trial. Americans shouldn’t face drastically different judicial outcomes when exercising their constitutional rights,” said Rep. Reschenthaler. “The Right to Trial Act will address the trial penalty sentencing disparity and ensure our judicial system reflects the spirit of the Sixth Amendment.”

The ‘Right to Trial Act’ seeks to temper these incentives by granting federal courts the authority to impose sentences, in some circumstances, below established statutory minimums.

The full text of the bill, which runs only three pages, is available here. The key provisions amend the sentencing instructions of 3553 to order to (1) instruct judges to consider "the need to protect the constitutional right to a trial, including by prohibiting impairment of such a right in any case in which an increased sentence is threatened or imposed based on a defendant’s decision to go to trial and not accept a plea offer," and (2) authorize judges "to impose a sentence below a level established by statute as a minimum sentence so as to protect the constitutional right to trial."

June 16, 2022 at 06:22 PM | Permalink


Best to title the bill for what it actually is: "The Right of Pro-Criminal Judges To Do What They Feel Like Regardless of Law, Hence To Bring Even More Politics Into Sentencing."

Posted by: Bill Otis | Jun 16, 2022 10:43:40 PM

The Sixth Amendment right to trial, and congressional efforts to protect it, is just "politics" and not "law." Okay, Bill, you yet again confirm that what you like to call "law" are just those doctrines or practices your personally prefer (including appeal waivers) while you like to call "politics" what doctrines you dislike (like individual rights for defendants in the text of the Constitution and SCOTUS rulings or legislation seeking to protect them).

Posted by: Doug B. | Jun 17, 2022 8:13:14 AM

Doug --

Where to start?

1. If a defendant wants to protect his right to trial, it's real easy. Tell the prosecutor, "No thank you, no deals, I want my constitutional trial rights. Go away." There. Game over. He gets his trial, no questions asked and no legislation needed.

But if the defendant wants a deal because he knows that, on the state of the evidence, he would be toast at trial, why shouldn't he be able to make that decision for himself?

Oh wait, I know! It's because defendants' decisions are not driven by the evidence -- no, not that!!! -- but because Merrick Garland's AUSAs are a bunch of extortionist thugs. Gosh, how could I forget?

2. The proposed bill is just an attempt to undermine if not overturn the Supreme Court's holding in Bordenkircher, decided by that right wing freak, Potter Stewart. Still, I suppose I should be grateful that overturning is preferred (for the moment) to assassination, for however much your pal Chuck Schumer might like to egg it on. P.S. Do you happen to know if Kavanaugh's middle school children have had to be outfitted with bulletproof vests yet?

3. "Okay, Bill, you yet again confirm that what you like to call "law" are just those doctrines or practices your personally prefer (including appeal waivers)..."

Actually it's not that I prefer appeal waivers, its that ALL 12 CIRCUITS do, while not a single one has taken your radical position wanting to abolish them.

Remind me again of who supports law and who doesn't.

4. Shouldn't we just cut to the chase? Instead of attacking plea bargaining by some backend sentencing manipulation, let's do it up front. If it's really just prosecutorial bullying, the answer is clear: Outlaw it. Period. I would fully support the introduction of a bill to do that -- not because I would vote for it, but because it would provide a good deal of clarity about what the true aim here actually is.

Posted by: Bill Otis | Jun 17, 2022 8:55:26 AM

Sentencing disparity is a useful tool that saves resources. If you are going to get 5 years at trial or 5 years in a plea bargain, well, there is no plea bargain. You just go to trial every time.

Doug, you see this bass ackward. Instead of a “trial punishment,” why is it not called a “plea bargain reward?” Even parents will reduce punishment if their kid comes clean, admits guilt, and apologizes. I’d laugh in my kid’s face if he called it, “I lied through the entire conversation until you showed video of me stealing the cookie” punishment.

Posted by: TarlsQtr | Jun 17, 2022 7:01:49 PM

Bill and Tarls: I surmise you are both big fans of the policy and practice of huge federal sentencing disparity between those who plead guilty and those who go to trial. But it seems GOP Reps Spartz and Reschenthaler and others think the current policy and practice is problematic because it undermines, in their words, a constitutional right "essential to protect against the tyranny of government and the police state." And they have proposed a law intended to give judges some statutory authority at sentencing to "protect the constitutional right to trial."

You may this think proposed law is bad policy (or may favor abolishing plea bargaining), but this proposed law seeks to protect a constitutional right through a duly enacted law. In contrast, appeal waivers were never enacted by Congress; they were invented by an executive branch official and then blessed by judicial rulings. As a general matter, I prefer laws duly enacted by Congress to doctrines invented by DOJ officials and turned into "law" by judges. But maybe I am silly to favor text passed by Congress to doctrines invented by agencies and embraced by judges who like the applicable policies that the agency likes.

In any event, I doubt this "Right to Trial Act" will become law anytime soon, in part because very few seem eager to take jury trial rights very seriously. I think that is a shame, but that disaffinity for certain individual rights the Framers placed in the Constitution is what really should be labeled a matter of politics, not this genuine effort to give more respect and significance to a right the "Founding Fathers provided ... our Constitution as a safeguard of our liberties."

Posted by: Doug B. | Jun 17, 2022 8:21:07 PM

Interesting comment, Doug.

You first cite two GOP reps in an obvious case of “Appeal to Authority,” then turn around and have to admit that there aren’t enough people in Congress to pass it. Their authority (as well as judges’ authority) means little to you. You can’t have it both ways.

You mention preferring laws enacted by Congress rather than doctrine created by executive employees and given an imprimatur from judges. So do I. I expect Bill does too. Where you go wrong is assuming that the codification must be against the practice or that it is practical to have Congress approve every executive branch policy.

I’d argue that Congress’s inaction in passing a law against it is approval.

Posted by: TarlsQtr | Jun 17, 2022 8:41:52 PM

Doug --

"You may this think proposed law is bad policy (or may favor abolishing plea bargaining), but this proposed law seeks to protect a constitutional right through a duly enacted law."

But it's already protected. Absolutely nothing in appeal waivers forces defendants to agree. If they want a trial, they have but to say so. Indeed, there's a big story just today on such a defendant who told the government to get lost, then won an acquittal, https://www.nytimes.com/2022/06/16/us/georgetown-admissions-scandal-acquitted.html.

"In contrast, appeal waivers were never enacted by Congress; they were invented by an executive branch official and then blessed by judicial rulings."

Exactly that could be said of ANY plea agreement ever. Suppose we just have a standard, basic deal: Defendant pleads guilty to one of the charges and the others are dropped. Such an arrangement was never "enacted by Congress." Thus, your argument has to be that plea bargaining itself has to go IN ITS ENTIRETY.

Who has ever said that? DOJ? The NACDL? The ABA? SCOTUS? Any of the circuits? Not that I can find. But if we are to have plea bargaining at all despite the absence of a statute enacted by Congress, then we can have one in which, say, counts get dropped in exchange for the defendant's giving up (what is overwhelmingly likely to be a futile) appeal.

What you're missing is this: Most defendants believe, with good reason, that they're getting something while giving up next to nothing.

"But maybe I am silly to favor text passed by Congress to doctrines invented by agencies and embraced by judges who like the applicable policies that the agency likes."

It's not that the judges "like" the waiver policy. It's that they find that it preserves the defendant's established right to insist on a trial if, but only if, he thinks that's in his interest. Most often they don't because they know they're going to lose at trial. Your logic would produce the bizarre result that the defendant MUST go to trial even if he doesn't want to and has a different and (from his point of view better) alternative.

That's hardly a result a liberal OR a libertarian would embrace.

Posted by: Bill Otis | Jun 17, 2022 9:04:58 PM

Being able to go to trial without inflating one's punishment is one of those ideas that I like in the abstract but also find difficult to figure out how it would work in practice.

Ironically, part of what makes it impossible to get this to work is the tremendous number of protections the accused has in our legal system. Deal with all the rules created by these protections is what makes our system so expensive. And the fact that the system is so expensive is in turn why there is a plea bargain discount, trial penalty, or whatever you want to call it.

In the early days of our republic, the number of protections was less, and therefore trials were cheaper, and there was less of a need for plea bargaining.

So, regardless of what I might like in the abstract, I think in reality we have to choose. Do we want a system with a small plea bargain discount? Or do we want a system with a lot of protections for the accused?

I'm skeptical that it's possible to do both.

If an economist has ever investigated this, the results might make interesting reading. For example, it's possible that they might have even come up with an equation relating trial cost to plea bargain discounts, with the size of the available budgets probably mediating somehow.

Posted by: William C Jockusch | Jun 18, 2022 12:31:41 AM

Tarls: Bill's very first comment was this bill is about bringing more politics, not law to sentencing. My reference to GOP (and other) sponsors was to highlight that this bill is a bipartisan, law-driven effort to strengthen and safeguard a constitutional right "essential to protect against the tyranny of government and the police state." Then I mentioned that this bill likely will not pass because of "tough-on-crime" politics. The text of this bill and its sponsors signal to me they are not "playing politics," but rather seeking in good faith to advance a new law that they think will improve current policy and practice. I am not trying to have it both ways, I am trying to make the point that politics is a better way to explain why this interesting bill, based in law and a concern for constitutional rights, seems to me unlikely to advance.

In addition, I am not asserting all policies and practices created by agencies have to be codified by Congress to be lawful, I am just saying the term "law" in our system fits much more comfortably with statutes duly enacted by Congress and signed by the Prez than something invented by an executive branch. (Ergo, it is a silly red herring for Bill to claim I am suggesting all of plea bargaining is unlawful.) Lots done by federal executive agents functions as a form of law, and must in our complicated world (which is, of course, why many on the left generally favor a large and powerful administrative state.)

I just find it especially rich for Bill --- the inventor of the non-textual (and suspect) broad appeal waiver --- to assail as "politics" an effort by members of Congress to enact actual statutory law to seek to strengthen and safeguard a constitutional right that he helped weaken. Bill is eager to say the right to trial is already protected enough. The authors of this bill plainly do not agree, and that is why they have proposed a law to seek to protect it more. A policy debate over whether this proposed law or others are needed strengthen and safeguard the right to trial is a debate over what makes for good law, not what makes for good politics.

As William notes, how best to calibrate these matters in practice can be quite challenging. Due in part various aspects of federal sentencing practice --- eg, some severe guidelines and mandatory minimums, a bloated federal criminal docket that often prompts prosecutors to offer sweetheart deals to avoid trials --- in many districts over 99% of guilty verdicts come from pleas. This bill, in quite a modest way, may hope to recalibrate the system so that not quite so many individuals feel quite so much pressure to forgo their constitutional right to put the government to its burden of proof at trial.

If you think, as I do, that individual freedoms are bolstered when government agents feel a bit more accountability because they may have to make their case for criminal sanction to fellow citizens a bit more, the data on how few cases go to trial should trouble you. Maybe it does not, but assailing a bill proposed by Reps who are troubled by these realities as "politics" and not "law" seems deeply misguided.

Posted by: Doug B. | Jun 18, 2022 7:58:44 AM

Doug --

-- The politics this bill would allow into sentencing do not arise from its sponsorship but from its proposed operation. Just recently, you had a post about how one Obama-appointed judge was much harsher in sentencing Jan 6 defendants than the other judges. The reason for that stems from her personal extreme dislike of Trump and Trumpism. But that sort of personal opinion (which I concede is a better term for it than "politics") should not have a place in sentencing.

The bill you're praising in this entry would give it, not merely a place, but an UNLIMITED place. The bill contains no limit on the judge's ability to depart down, so it could be 100%, right? Based solely on that judge's personal beliefs.

That's just all wrong, as you must know. It would be going all the way back to pre-guidelines luck-of-the-draw. And it would replace anything even resembling law with taste.

-- And one question: Do you doubt that a defendant who admits his wrongdoing and comes clean (by entering a plea) deserves a significant sentencing break over one who falsely claims innocence at trial and shows no sign that he has even a slight interest in coming to terms with his shortcomings and changing them?

I've never heard of a system, anywhere, in which a defendant who accepts responsibility for his behavior isn't treated better, and often much better, than one who persists in the false claim that he did nothing wrong.

The reason I never heard of it is that a system that treats those two defendants equally would be crazy. Treating people who're honest and ready to change the same way we treat people who are dishonest and not ready to change would debase any notion that what we want in our criminal justice system is truthfulness (or rehabilitation, for that matter).

Posted by: Bill Otis | Jun 18, 2022 11:23:14 AM

Doug --

Just to be clear: Is it your position that plea bargaining is legal notwithstanding that it has never been codified by Congress? That certainly seems to be your (present) position, but I wanted to check.

If your answer is "yes," then why does the fact that Congress has never codified approval of appeal waivers as one (now routine) term of a bargain even suggest, much less establish, that such waivers are illegal?

And if your answer to that is, as all the courts of appeals have held, that waivers are legal, why do you think you know more than the defendants who sign them in order to get concessions in the bargain that they (wisely) view as more valuable than what they're giving up?

Posted by: Bill Otis | Jun 18, 2022 3:16:46 PM

Bill, though this medium does not easily enable extended debate, I will continue to try to provide (necessarily partial) responses:

1. Some judges likely sentenced some Jan 6 defendants a bit harsher not because of "taste," but because of a reasonable belief that efforts to disrupt the peaceful transition of power and the people tricked by Trump to seek to do so ought to be better deterred in the hope of preserving important democratic traditions. Do you really consider any and every judge who sentences a bit harsher (whether in view of deterrence or incapacitation or retribution) is doing so because of "taste"? Would you say every prosecutor who charges a CP downloading case with receipt (carrying a five year MM) rather than possession (with no MM) is doing so as a matter of "taste"? Reasonable differences in the exercise of discretion in the application of multi-factor considerations of law and policy is not "taste," it is the regular outcome of the ever-present challenges of sentencing. AND adding one more legal factor for judges to consider at sentencing -- namely, the need to "protect the constitutional right to trial" -- does not dramatically turn sentencing decision-making into picking ice-cream flavors.

2. Few contest that those who admit guilt and show remorse should get a sentencing break compared to those who falsely contest guilt and show no remorse. But how about those who admit guilt on one charge but contest guilt on other charges AND GET ACQUITTED but are subject to huge sentencing enhancements (and lose acceptance credit) notwithstanding their partial acquittal? Do you think those folks should be sentenced exactly the same as someone convicted on all counts? Or, as is even more common, do you think someone who goes to trial should get sentenced 3 TO 5 TIMES LONGER than those who plead guilty to much worse conduct? I have worked on many cases where the most culpable offenders secure deals capping sentences at 5 years or less and their underlings get 20 or more after trial. All this bill seeks to do is give federal judges at sentencing authority to address ways our system now unduly punishes the decision to exercise a constitutional right under various circumstances.

Critically, this bill does not say those who plead and those who go to trial must be treated the same. Rather, it just seeks to allow some hedging against extreme trial penalties so that decades of prison time turn on what offenders did rather than on who decides to exercise a constitutional right. Perhaps you think punishing the crime should matter less than punishing those who do not roll over in the face of government charges, but I think the details of criminal activity should matter a lot more at sentencing than whether someone contested guilt (especially if there was a reasonable basis to do so). Lots of federal sentencing data show that those most severely punished are not always those who commit the worst crimes, but often those who exercise trial rights.

3. A defendant can obvious, legally, plead to a crime once charged under a statute enacted by Congress. But I assume you would agree that it would be illegal for a prosecutor to urge -- or a judge to accept -- a guilty plea to a "crime" that was not enacted by Congress. For example, while the Jan 6 folks can plead to criminal trespass, AG Garland and his USAs could not draft plea deals that said defendants were guilty of the "crime" of believing Trump's election lies. In other words, Congress via criminal statutes sets the basic terms of what is a crime and what can be the basis for a guilty plea. With those basic terms set, there can be some discussion, memorialized in a plea agreement, as to what prosecutors will recommend and defendants will accept (though again, prosecutors could/should not push for problematic punishment terms not authorized by statute -- e.g., defendant agrees to get a tattoo that say "the Big Lie is lie.")

But another statute Congress has enacted provides for criminal appeals and that statute does NOT say that defendants who plead guilty must forego their appeal rights. You and others at DOJ past and present find the exercise of that appeal right annoying and so you decided, without any clear statutory basis or authority, that you could and should make defendants give up this statutory right as part of their effort to secure a reduced sentence. Courts have gone along because they like less work, especially because many appeals are often busy work. But at issue is not whether this waiver might make for good policy --- I think it likely does in many cases, but not in a few --- it is whether DOJ should be able to make up law by rolling into plea agreements the waiver of statutory (or constitutional) rights without any clear statutory basis or authority. Should DOJ be able to put into Jan 6 plea agreements a waiver of the right to vote for the next 20 years? A waiver of the right to a lawyer for the next 10 years? A waiver of the right to access Medicare? A wavier of all gun rights? If you think there are no limits of what rights DOJ can seek waiver of in plea agreements, than the "taste" of DOJ is going to shape individual rights, rather than the laws passed by Congress.

Posted by: Doug B. | Jun 19, 2022 9:31:48 AM

Here in Kentucky, the state's highest Court has made clear that prosecutors cannot make banishment a term of a plea agreement. In 1965, the old Kentucky Court of Appeals (before there was a Supreme Court) reversed a felony sentence (following a conviction at trial) that included banishment from the state as part of the sentence. Despite that holding, for decades afterward, prosecutors con continued to take the position that the prohibition on banishment from the state could be waived by the defendant as part of a plea agreement. About 5 or 6 years ago, a case on this issue from a guilty plea case made its way to the Kentucky Supreme Court. The defendant had pleaded guilty to felony drug distribution charges in an Eastern Kentucky County. As part of his plea, he was sentenced to 10 years of probation, on condition that he leave the state and not return for 10 years -- banishment. He moved to Ohio and lived there for several years, but returned to the county of his conviction when his Mother was on her death bed, to say good-bye. The Sheriff caught him, and the Circuit Judge revoked his probation and gave him 10 years to serve. The case had been fully briefed and argued at the Kentucky Supreme Court, which had no yet rendered an opinion. The defendant was coming up for parole, and it is an issue barring most parole that the defendant is still in Court contesting his conviction or sentence. The Court issued it decision and mailed it on a Friday. On Monday, the Clerk of the Supreme Court received a letter from the defendant's attorney, dismissing the appeal, so that he could be paroled. On Tuesday, the Court withdrew its opinion and dismissed the appeal. We had to wait a few more years to get a decision on this issue, but when it came down, the Supreme Court made clear that when it held that banishment is not an acceptable term of a criminal sentence, it also meant that the issue cannot be waived by a defendant and the ban on banishment is absolute. What other issues should be absolutely banned from state and federal plea agreements?

Posted by: Jim Gormley | Jun 19, 2022 3:53:36 PM

Doug --

1. I agree that this discussion is better carried on in a live debate. So maybe the thing to do is bug your FedSoc chapter out there to host one in the upcoming semester. I can't bug them because of conflict-of-interest rule. Then you could put up a tape of the debate right here on your blog.

2. On substance: Let's cut to the chase. Would you like to see an experimental period in which there would be no difference between trial sentences and plea bargain sentences because there would no longer be plea bargains? Everyone would get his constitutional right to trial on all the charges in the original indictment. The trial v plea sentencing "penalty" would thus cease to exist.

If this is such an outrage, there's an easy way to end it. No plea bargains. Would you like to do that?

Posted by: Bill Otis | Jun 20, 2022 7:39:41 AM

Bill, the crux of these issues are not plea deals, but problematic sentencing laws and prosecutorial discretion not subject to any laws. That is what helps to create extreme deltas between plea sentences and trial sentences.

Eliminating plea deals under existing laws could actually make matters worse as prosecutorial charging choices --- which are subject to no legal regulation or required transparency --- would shape sentencing practices even more. The proper way to approach the problem, as the US Sentencing Commission and others have suggested, is to repeal severe statutory mandatory minimums sentences, which the USSC has long said are misguided and problematic for many reasons beyond just exacerbating the lawlessness and disparity that comes from the "taste" of prosecutorial discretion not subject to any legal regulation.

Eliminating severe MMs will not solve all problems, but it would be a good start. Short of that, which I do not expect to happen anytime soon despite the USSC advocating doing so as good policy for 30+ years, this proposed modest new bipartisan sentencing reform bill seems worth trying.

I would be happy to suggest our FedSoc folks host a discussion on "Whether and how federal prosecutorial discretion can and should be subject to regulation." Might I suggest we start that discussion with what laws or policies or practices define or limit what prosecutors can demand in a plea agreement?

Posted by: Doug B. | Jun 20, 2022 9:13:33 AM

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