BLOG BULLETS:

• Plea agreements may not provide enough benefits to offset the costs.
• Think about pleading open — when you’re client’s ready — and saving the right to appeal the sentence.
• Appellate issues you didn’t anticipate may arise during the sentencing process.

NOW THE BLOG:

My post last week about breach of plea agreements brought to mind an issue I’ve thought about from time to time ever since I started working as a federal public defender almost 30 years ago. When I first came, we didn’t even have written plea agreements and the agreement was a simple trade of the defendant’s right to go to trial in return for – well, in our district here in Los Angeles, virtually nothing. The government would sometimes dismiss some counts, but that didn’t matter at all without sentencing guidelines. There was a generalized, vague understanding that defendants who “cooperated” by entering guilty pleas would be treated more leniently by the judges, but that may or may not have been true in a particular case, and there was certainly nothing guaranteed.

Now, of course, we have the sentencing guidelines, a right to appeal sentencings, and rulings on legal questions and/or mixed questions of law and fact that are actually appealable. We also have written plea agreements being forced on us that have grown to 15 or 20 pages, consisting mostly of recitations of constitutional rights and other Rule 11 plea colloquy subjects in legalistic language that few, if any, of the defendants who sign these agreements likely understand. Further, in our district here in Central California (actually Southern California geographically, but I guess having all these people at this end of the state tilts the scale a little), the agreements often, if not usually, give the defendant very little, if anything. They give “acceptance of responsibility” points and perhaps the “low end” of the range, but a defendant will get those in many, if not most, cases anyway. And the plea agreements almost always require the partial surrender of at least one important and potentially useful right in addition to the right to a trial – the right to appeal the sentence. The waiver is usually conditioned on the sentence not being above a certain level or number of years, but subject to that threshold not being crossed, the right is given up.

So why do we sign plea agreements? Especially after the Bookerdecision which made the guidelines advisory rather than mandatory and opened up all sorts of new issues, is it wise to waive appeal? Why not plead just “straight up,” as we say? And let our clients decide for themselves when they’re ready to make that decision, rather than have the timing of the decision be driven by some government-imposed deadline on a plea offer?

There are a lot of potential advantages to this if the written plea agreement isn’t really giving the client anything. First, we control the timing on the decisionmaking, which means (a) the client can decide when he or she is ready and (b) we can make the government understand that they have to offer something if they want the benefit of an early commitment. Second, we don’t have to agree to whatever the government thinks the guidelines are and all issues, including issues we perhaps didn’t anticipate prior to the plea, are preserved. Third, and finally, any and all issues that pop up between the plea and sentencing are preserved for appeal; we don’t have a waiver forced down our throat.

So let’s think about whether written plea agreements are really just a crutch or a security blanket for us and/or our clients. Let’s think about preserving options and controlling the process ourselves rather than just rolling over for the government to control it.