Wednesday, November 28, 2007

Pleas Please Me--But Not the Indiana Courts of Late

Doug Berman has this post over at Sentencing Law & Policy about the occasionally extreme penalties people pay for going to trial, especially in white-collar cases. I'm not going to re-post his post, but he says, "I think about these issues a lot because the most extreme sentence almost always involve some kind of trial penalty . . . ." He concludes the post:
I wonder if anyone has tried to do a serious empirical analysis of the extent of the trial penalty in federal white-collar prosecutions (post Sarbanes Oxley). My anecdotal impression is that the trial penalty in some large corporate cases is now decades long. If some Justices or legislators really cared about the right to a jury trial, it is high time some more attention is given to this ugly reality.
There is an ugly converse reality in Indiana. Pleading guilty is not worth much as a mitigating circumstance. There has been a deluge of cases in the last months, it has seemed to me, in which the Court of Appeals has said that the plea agreement itself contained whatever benefit a defendant should hope to reap from pleading guilty. There were two such cases in a day back on November 16th, both NFP: Chavez v. State (Judge Najam writing) and Sanders v. State (Judge Vaidik writing).

Here is what Judge Najam writes at the end of
Chavez after a long quote from Justice Rucker's rehearing opinion in Anglemeyer (Ind. 10/30/07):
[T]he State agreed to dismiss the charge of attempted murder, as a Class A felony, in return for Chavez’s guilty plea to aggravated battery, a Class B felony. The State also agreed to cap the maximum sentence, reducing Chavez’s maximum possible sentence by four years. As such, Chavez received a substantial benefit by entering into the plea agreement. Thus, the trial court did not abuse its discretion when it did not identify his guilty plea as a significant mitigator.
Slip op. at 6. (The original opinion in Anglemeyer (Ind. 6/26/07) was the court's not entirely convincing effort to deal with one mess created by the 2005, post-Blakely, elimination of presumptive sentences in favor of "advisory" sentences--namely, what's an appellate court to do when a sentencing judge can do just about anything for any reason? Would have been nice if they could have pushed up the date of the opinion a couple of days to 6/24, Blakely's third birthday.)

Here's the language from
[F]aced with two Class B felony convictions, Sanders was susceptible to a potential maximum sentence of forty years (consecutive twenty-year sentences for both counts). However, in exchange for his plea, Sanders’ maximum sentence was capped at eighteen years, twenty-two years below the maximum possible. This was a substantial benefit. See Anglemyer v. State, --- N.E.2d ---, 2007 WL 3151747 (Ind. Oct. 30, 2007) (“Anglemyer was exposed to a potential maximum sentence of twenty-eight years. In exchange for his plea, Anglemyer received the benefit of a twelve-year reduction in sentence. This alone was a substantial benefit.”).
Slip op. at 3-4.

But the problem is not the Anglemeyer rehearing opinion. The practical elimination of guilty pleas as mitigating pre-dates October 30th. From some quick research, the root seems to be in a case written by Chief Justice Shepard in 1999,
Sensback v. State, 720 N.E.2d 1160 (Ind. 1999). There he writes for the court, without citation to any preceding authority:
A guilty plea is not automatically a significant mitigating factor. . . .

. . . .

While Sensback now argues that the likelihood of being sentenced to life without parole was too remote a possibility to be adequate consideration for her plea, there was a time when she appeared to consider it worth avoiding. Sensback received benefits for her plea adequate to permit the trial court to conclude that her plea did not constitute a significant mitigating factor.
720 N.E.2d at 1165. (Footnote omitted).

Without going into the detail of the cross-talk among the cases after Sensback, which seems, after possibly hasty reading, to pit Justice Sullivan against the Chief Justice's view, it had always seemed that there were two 800-pound gorilla per se mitigators in Indiana sentencing: lack of criminal history and a guilty plea. (Mental illness is a possible candidate for a third gorilla.) In 1982, in Williams v. State, 430 N.E.2d 759, 764 (Ind. 1982), the Indiana Supreme Court said:
[A] defendant who willingly enters a plea of guilty has extended a substantial benefit to the state and deserves to have a substantial benefit extended to him in return. Both this Court and the Federal Courts have recognized the state's legitimate interest in encouraging the entry of guilty pleas and in facilitating plea bargaining which is mutually beneficial to both a defendant and the state.
And to mention just one bit of the cross-talk since Sensback, Justice Sullivan's opinion in Francis v. State (Ind. 11/9/2004) goes so far as to say in footnote 2 that "a sentencing court is inherently aware of the fact that a guilty plea is a mitigating circumstance . . . ."

The old regime seems to have been that one got credit for pleading guilty, period. Maybe more, maybe less, but the more or less did not depend on what the State had done by way of dismissed charges or sentencing caps in a plea agreement. The courts did not go behind the fact of a plea agreement to see what kind of a deal it was. That's really what Williams says. The plea itself benefits the State, regardless of any agreement's terms.

That is, the State used to have an incentive to overcharge just to induce a guilty plea in exchange for dismissed or reduced charges. That has not changed. But now there is an additional incentive to overcharge: the more the State appears to give away in a plea agreement, the less the plea agreement will mean as a mitigator. And it would seem up to a defendant to argue that charges dismissed were either meritless or meaningless because of double jeopardy problems. In the cases I've skimmed, those arguments don't get very far.

I really am not a sentencing maven. Blakely's divinity for me derives (derived?) from its factless formalism that reshaped, for a while, every piece of criminal process it touched. Maybe someone out there who knows more about sentencing has a different take on what's going on with pleas as mitigators.


Sunday, November 04, 2007

Danforth v. Minnesota: Major Geek Time

For Blakely in Indiana, the only game left in town is retroactivity. The argument in Danforth v. Minnesota last week has brought me out of lurking. The question, bluntly put, is whether the States are stuck with the U.S. Supreme Court's retroactivity analysis as stated in Teague v. Lane. For all the background, SCOTUSBlog has a wiki with summaries galore and the briefs. The oral argument link (directly to the PDF file) is here.

There has been a great deal of discussion of this case. SCOTUSBlog's post here, Sentencing Law & Policy here (among a number of posts), and Orin Kerr on the Volokh Conspiracy here. The SL&P post also points to Ann Althouse's post, in which she describes the case as "perhaps the most interesting case I've seen in 20 years."

I'm with Doug Berman: this is the case for the law geek. Maybe for the Ueber-Geek. And there is a lot of geeky goodness in the posts I've linked to above.

But if you read those posts, if you read the argument itself and see what the Nine Geeks were interested in, it looks a lot like a raw, "It is-It ain't" argument.

I want to suggest in what follows that all of the geeks are failing to think about this problem correctly. I don't think Teague has anything to do with "federal common law," or the supremacy of Supreme Court decisions. The solution to the problem is that there is no problem at all, because Teague does not speak to the state courts.

The short explanation is that because States do not have to offer collateral review at all, they can quite literally do whatever they like when they do offer collateral review. What they do or do not do has consequences, but those consequences are never a result of having failed to "apply" federal law.

To fellow geeks who think that solution is question-begging, I offer the following more formal presentation:

1. Teague is only about what rules decide whether a new rule of constitutional procedure applies to cases retroactively on collateral review.

2. The question in Danforth is whether those rules apply to state as well as federal court decisions.

2. The federal Constitution does not require that States offer collateral review of convictions or sentences at all.

3. Because States do not have to offer collateral review at all, they may do whatever they wish, subject to certain federal due process procedural limitations, if they do offer collateral review. That is, nothing prevents States from saying, for example, that Strickland v. Washington requires a post-conviction petitioner to show that his lawyer was wearing an off-putting tie during closing argument in order to obtain relief.

4. There are great benefits to the States, however: a) if they do offer collateral review; and especially b) if they correctly apply the two-prong analysis that Strickland actually announced.

5. The great benefits may be more like the avoidance of great penalties for failing to offer collateral review at all or for failing to follow Strickland as written. In either case, a prisoner may file a habeas petition in federal court and get de novo review of his claims, almost as if it were a direct appeal--though not quite, because of Brecht v. Abrahamson and its limitation on harmless-error analysis.

6. But again, nothing requires that state courts apply Strickland at all or even as written. So when state courts do "apply" federal law as written, they're really only saying that as a matter of state law, we're doing something that looks like what the feds do. They are not applying federal law directly.

7. It follows that Teague has nothing to say directly about collateral review in state courts. It's effect is entirely indirect. And that indirect effect can only seen in cases in which SCOTUS has held a case to be fully retroactive and in States that have no collateral review or don't at least offer relief where Teague would as well.

How about a metaphor? The state and federal courts have two completely distinct sandboxes. The state courts do not have to play at all in their sandbox; and if they do play, they can build whatever sort of castles they like. If the state court castles happen to look enough like the castles in the federal courts' sandbox, though, federal habeas review is a lot kinder to the state decisions.

(If you don't like sandboxes, consider that you probably didn't want to read a version of the discussion I had this afternoon on this subject in which I invoked isomorphisms, homomorphisms, and homology groups. That was ugly.)

Suppose, now, that SCOTUS were to declare Blakely fully retroactive to cases on collateral review. Again, nothing requires that the States honor this. A State that has no collateral review at all would certainly not be required to create it just to accomodate a SCOTUS Blakely retroactivity holding. What would happen is that prisoners in a State without collateral review at all would go across the street to federal court with their habeas petitions.

There is one hole, at least, to this highly (overly?) formal take on the Danforth case. If state courts do not actually apply federal law in post-conviction proceedings but are merely aping it, as it were, SCOTUS would have no jurisdiction to take cert. petitions from those proceedings. But we know that it does.

Maybe it shouldn't and should have to wait for cert. petitions in habeas cases. After all, because States do not have to consider federal claims as part of collateral review.

I also undertand that this is an unusual way to think about state post-conviction proceedings. Section 2254 does, after all, speak in terms of "unreasonable applications of federal law." But I won't be deterred from suggesting that even Congress has failed to think correctly about what state courts are really doing in post-conviction proceedings.

Indiana happens to do Teague, but not directly. The Indiana Supreme Court adopted it as its own. Of course, under my approach, the Indiana Supreme Court could only "do" Teague indirectly. State collateral proceedings are always a matter of state law.

I cannot recall in which argument it was, but in a death penalty case, I believe, Justice Sullivan asked the Deputy A.G. whether the court should follow, lock-step, as it develops, SCOTUS's Teague jurisprudence. The answer was a predictable, "Yes."

Correct thinking or the lack of it aside, I really do think the key to Danforth is the purely voluntary availablity of state collateral review: Teague is only about collateral review.

Comments would be great.

What a subject to return with and to.