Archive for August, 2017

How Often & Why Do You Reject Plea Bargains?

posted by Judge_Burke @ 14:15 PM
August 11, 2017

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


From the Sentencing Law & Policy blog (a terrific resource for judges):

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

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

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

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

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

For the reasons stated, I REJECT the plea agreement.

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


Plea Agreements as Constitutional Contracts

posted by Judge_Burke @ 14:15 PM
August 10, 2017

Plea Agreements As Constitutional Contracts


…is the title of this notable new article authored by Colin Miller available via SSRN.

Here is the abstract:

In his dissenting opinion in Ricketts v. Adamson, Justice Brennan proposed the idea of plea agreements as constitutional contracts and lamented the fact that the Supreme Court had yet to set up rules of construction for resolving plea deal disputes.  Since Adamson, courts have given lip service to Justice Brennan’s dissent and applied his reasoning in piecemeal fashion.  No court or scholar, however, has attempted to define the extent to which a plea agreement is a constitutional contract or develop rules of construction to apply in plea deal disputes.  This gap is concerning given that ninety-five percent of criminal cases are resolved by plea agreements.

This Article is the first attempt to defend the concept of plea agreements as constitutional contracts and establish a core rule of construction to guide judges in interpreting plea bargains. It advances two theses.  First, plea agreements are constitutional contracts whose constitutional protections extend to all matters relating to plea agreements.  Second, due process requires that courts treat pleading defendants at least as well as parties to other contracts, meaning all of the protections associated with contract law should be incorporated into plea bargaining law through the Due Process Clause.

This Article then argues that incorporation of one of these protections — the implied covenant of good faith and fair dealing — would lead to legal reform in three plea bargaining scenarios where pleading defendants are treated worse than parties to other contracts:

(1) substantial assistance motions;

(2) Brady disclosures; and

(3) prosecutorial presentation of sentencing recommendations.


The Eighth Amendment Trumps a Mandatory Minimum

posted by Judge_Burke @ 15:20 PM
August 9, 2017

Rarely do courts in the United States overturn sentences on Eighth Amendment grounds. But, in a recent decision, a federal appeals court holds that a mandatory minimum sentence constitutes cruel and unusual punishment under the Eighth Amendment:

The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S. CONST. amend. VIII. Central to this prohibition is the requirement that the punishment for crime “be graduated and proportioned to the offense.” Graham v. Florida, 560 U.S. 48, 59 (2010). However, this proportionality principle is narrow, and it only forbids “extreme sentences that are grossly disproportionate tothe crime.” Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring in part and concurring in judgment). There are two types of Eighth Amendment challenges to sentences: 1) challenges to sentences as applied to an individual defendant based on “all the circumstances in a particular case” and 2) categorical challenges to sentences imposed based on the nature of the offense or the “characteristics of the offender.” See Graham, 560 U.S. at 59–61. Slough, Liberty and Heard assert their sentences are disproportionate both as applied to their situations individually and categorically to all defendants who have discharged government-issued weapons in a war zone. We begin by addressing the as-applied challenges.

When addressing an as-applied challenge, courts begin “by comparing the gravity of the offense and the severity of the sentence” based on “all of the circumstances of the case.” Id. at 59, 60. When engaging in this comparison, courts are to give “substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes.” Solem v. Helm, 463 U.S. 277, 290 (1983). Also, the imposition of a severe mandatory sentence does not in itself make a sentence unconstitutional. See Harmelin, 501 U.S. 994 (“Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense.”); see also id. at 1006–07 (Kennedy, J., concurring in part and concurring in judgment) (“We have never invalidated a penalty mandated by a legislature based only on the length of sentence . . . .”). Thus, courts should be “reluctant to review legislatively mandated terms of imprisonment,” and “successful challenges to the proportionality of particular sentences should be exceedingly rare.” Hutto v. Davis, 454 U.S. 370, 374 (1982) (per curiam). However, the unusual circumstances of this case make it one of those “exceedingly rare” instances. 


D.C. CIRCUIT COURT OF APPEALS.  The opinion deals with a lot of issues. The Eighth Amendment analysis begins at page 69.


Justice Ruth Bader Ginsburg

posted by Judge_Burke @ 16:35 PM
August 1, 2017

If you have never listened to Justice Ruth Bader Ginsburg, you should. It isn’t necessarily about legal philosophy, but rather the remarkable intellect she has.

From How Appealing: “A Conversation with Supreme Court Justice Ruth Bader Ginsburg about the 2016-17 term.” Duke University School of Law has posted this video on YouTube.