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 Sanders:
[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. . . .720 N.E.2d at 1165. (Footnote omitted).
. . . .
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.
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.