Wednesday, September 29, 2004

The NAFD Brief and Plea Bargains

Today’s focus is on the brief submitted by the National Association of Federal Defenders. Before you even turn the first page of the brief, you’ll notice that the NAFD didn’t team up with the NACDL to write a brief (or vice-versa) as they did when they filed a brief in July at the certiorari stage. Interesting. (My discussion of the NACDL brief can be found here).

The NAFD brief makes one overarching argument, which is that the principles of Blakely assimilate easily into practice under the federal guidelines. This brief is very “practical,” meaning that it uses a number of cases and statistics to present a “real-world” vision of a Blakely-ized sentencing system, and I think it paints a convincing picture. In the words of the NAFD, “Real-world experience dispels the myths imagined by those who choose to avoid Blakely and its application in federal sentencings.” While describing what the NAFD considers to be an ideal post-Blakely world, the NAFD asserts that Blakely would only affect 3% of guidelines cases. The 3% represent the cases that go to trial. Only those cases, says the NAFD, would be affected significantly by Blakely (but in a way that judges and juries can handle).

The Blakely majority and the dissenters sparred over Blakely’s (and even Apprendi’s) impact on plea bargaining. A centerpiece of that debate between the Justices was a 2001 article written by Stephanos Bibas entitled, “Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas.” (110 Yale L. J. 1097). In this post, I discuss some of the assumptions and arguments from the NAFD brief about plea bargaining in a Blakely-ized world.

It Will Only Be 3%, Really

If the NAFD is correct, that Blakely will only affect 3% of all federal cases, the additional burdens imposed by a Blakely-zied justice system should be minimal, or at least bearable. The NAFD appears to rely on this figure in an attempt to make that argument. But is that really true? The NAFD tries to sell that argument, but I’m not sure I’m buying.

First of all, the 3% figure is a reflection of the current rate at which defendants choose to go to trial. It doesn’t, and can’t account for a Blakely-ized world. The NAFD maintains, however, citing statistics before and after Apprendi, that the number is likely to remain at 3% or go lower, if the statistics from 1999-2002 are a trend. “Despite Apprendi, which required new allegations and proof in federal prosecutions, the number and percentage of criminal trials have decreased, not increased.”

It seems to me that Blakely, if applied in the manner which the NAFD thinks is best, will do a lot more to shake-up the criminal law compared to Apprendi. Although I don’t have statistics to support this assertion, I’ll make it anyways. I think that a greater number of cases have Blakely problems compared to Apprendi problems. In addition to Blakely’s broader net, it appears as though Blakely is a more potent weapon. I think Justice Scalia recognizes that when he wrote that, “Every new element that a prosecutor can threaten to charge is also an element that a defendant can threaten to contest at trial and make the prosecutor prove beyond a reasonable doubt.” Thus far, much of the “chaos,” as some would say, in the federal system emanates from defendants who are getting comparatively light sentences as a result of Blakely. (Tractor man, I’m looking in your direction.) Apprendi certainly cut short many sentences, but it didn’t unravel the guidelines. Blakely might.

NAFD argues (p. 17-18) that more specific indictments are likely to encourage compromise, resulting in pleas. They contend that defendants will gladly take a plea which doesn’t leave their sentence to chance, or a non-lawyer probation officer, to be more specific. I’m not sure if that’s true, either. What if the government’s evidence for the bulk of the enhancements is weak? It doesn’t matter what the non-lawyer probation officer recommends, the prosecutor would still have to prove the enhancements to the jury. What about white collar offenses? The base level offense for those crimes are very low, leaving the amount of loss as the decisive factor in ratcheting up a sentence. Wouldn’t it make sense to go to trial in those cases? Of course, the government will try to slap you with perjury and obstruction of justice if you do go to trial and lose, but I can imagine cases where going to trial may still net a defendant a lower sentence, but only under Blakely, not Apprendi.

I also wonder if there are other variables which may be pressing the plea numbers upwards, despite Apprendi. Maybe the change in administration in 2000?

One interesting question to ponder is, what will happen to plea rates if the system is Blakely-ized and the PROTECT Act undercut? If judges’ authority to depart downward is rejuvenated, how will that, in combination with Blakely affect plea rates?

Finally, assuming that the NAFD is right about all of its claims, I ask, is that a good thing? Several commentators have criticized the current guideline regime for shifting power to the prosecutor, which they say has resulted in fewer and fewer trials. I think that a vast majority of criminal defense lawyers consider that to be a bad thing. The rules of the game, as they currently exist, reward pleas and punish (severely) those that choose to exercise their constitutional rights to a trial. If the rate of trials remains at 3%, or lower, four years after Blakely, will the defense bar have won this battle? Perhaps the average length of sentences will drop, and that will be the defense bar’s symbol of victory.

Other Arguments of Note

Although I focused on plea bargains in this post, the NAFD makes a number of other valuable points. Here’s a very quick preview:

- The Federal Rules of Criminal Procedure implement the requirements of the Fifth Amendment’s indictment clause in manner that could incorporate Blakely’s principles. (page 7).

- The Department of Justice Manual recognizes that proper allegations in an indictment are not limited to only the statutory elements of an offense. (page 8).

- Juries are already doing what many say is impractical, deciding guilt or innocence and then deciding sentencing factors. See United States v. Carlos Cardenas, et al., Case No. 03-20450-CR-GOLD(s) (S.D. Fla.), available at (Local Option Images). (page 24).

Finally, I’d like to point out that on page 27 of the brief the NAFD argues that there is nothing in the text of the SRA which requires judicial factfinding or the use of a specific burden of proof when applying the guidelines. My colleague at Columbia Phil Fortino made this argument a few months ago in an essay, which is about to go to the printer, entitled, “A Post-Blakely Era or Post-Blakely Error?

The NAFD brief isn't arguing that Blakely only affects the approximately 3% of federal cases that go to trial, but rather that the Guidelines can readily accomodate Blakely-ized procedures at trial (bifurcated trials, special issues, etc.). As for the 97% of cases that plead, Blakely still applies to the extent that any facts legally necessary for the sentence must be alleged in the indictment. The only difference is that the defendant's guilty plea eliminates the need for jury findings beyond a reasonable doubt.

In the cases that do plead, the parties would have the ability to bargain over enhancements/relevant conduct. If the Government's evidence for a particular enhancement is weak, then the Government could agree to let the defendant plead to a superseding indictment that lacks that allegation in exchange for the defendant's agreement to plead guilty rather than go to trial.
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