Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
October 28, 2011
On September 28, 2008, then-Governor Edward G. Rendell signed into law a series of prison reform measures, known in part as Act 81. The reforms were intended to reduce costs, ease county jail overcrowding, improve treatment services and among other things provide for the compassionate release of terminally ill inmates. Not all of the reforms have met with success.
A provision of Act 81, Place of Confinement -- 42 Pa.C.S.A. 9762, is scheduled to take effect on November 24, 2011. The new law provides that sentences with maximums between two and five years must be served in a state prison. However, under specific circumstances a judge can order the sentence to be served in a county jail. That is not entirely new. What is new is that the sentencing judge will retain jurisdiction for purposes of parole, not the Pennsylvania Board of Probation and Parole.
Act 81 provides that offenders sentenced to a term of two years or more, but less than five years may be confined in a county jail if: (1) the county prison warden certifies that the county jail is at less than 110% of capacity; (2) the district attorney has consented to the confinement; and (3) the sentencing court has approved the placement in the county jail.
According to data compiled by the Pennsylvania Commission on Sentencing, in 2009 7,860 sentences included a maximum term of two years or greater but less than five years; of these, 6,080 were committed to a state correctional facility, and 1,205 were committed to county jails. The remaining 575 sentences were state intermediate punishment.
What are the implications for offenders? Initially, an offender who has local ties to the community will be more accessible for purposes of visitation while in a county jail. That is not always the case in the state correctional system. With 28 correctional facilities across the commonwealth some state inmates find themselves far away from family and friends.
An offender serving a sentence in the county jail may also have available the privilege of work release. An offender with a family to support could continue to work while serving her sentence. This often eases a significant burden placed on the non-incarcerated parent.
Administratively the most significant change brought about by the new law is that judges will now make parole decisions, not the Parole Board; and local county probation offices will supervise those offenders after parole instead of the Parole Board.
Criminal defense practitioners should be eager to explore the benefits of Act 81. The trick may be getting a feel for the administrative aspects of the new law. A provision of the reform package provided that the Sentencing Commission would establish parole guidelines for the Parole Board and for judges who invariably will be making more parole decisions. Those guidelines have not yet been established, although the Parole Board has been utilizing internal parole guidelines since 1980.
Visit Matt Mangino
Showing posts with label Sentence Guidelines. Show all posts
Showing posts with label Sentence Guidelines. Show all posts
Saturday, October 29, 2011
Sunday, October 23, 2011
U.S. Supreme Court Takes Another Look at Plea Bargains
Matthew T. Mangino
Pennsylvania Law Weekly
October 18, 2011
In Blaine Lafler v. Anthony Cooper , the court will consider whether an attorney's advice to his criminal client to reject a favorable plea bargain based on an incorrect understanding of the law was ineffective assistance of counsel. In Missouri v. Galin E. Frye , the court will consider whether counsel's failure to disclose the terms of a favorable plea offer is a violation of the Sixth Amendment right to a fair trial.
Frye was charged with a felony for driving with a revoked license. He was appointed a public defender, Michael Coles. The district attorney sent Coles a letter offering a reduced charge and 90 days in jail. Coles received the letter and made written notations. However, Coles never communicated with Frye regarding the letter and therefore Frye never learned of the plea offer.
Frye subsequently made an open plea and was sentenced to three years in prison. He filed a claim pursuant to the Sixth Amendment alleging ineffective assistance of counsel. The Court of Appeals agreed and the appeal by the State of Missouri followed.
In Cooper's case, the prosecutor communicated a verbal plea offer to Cooper's attorney, Brian McClain. Pursuant to the offer, Cooper would plead to assault with intent to murder with a recommended sentence of 51 to 85 months in prison. Cooper would have accepted the plea because he "was guilty."
However, Cooper's attorney talked him out of accepting the plea based on a misunderstanding of the law. McClain incorrectly thought because the victim was shot below the waist the state could not establish the element of intent. McClain thought a better plea deal would come closer to trial. Instead, Cooper went to trial and the jury found him guilty on all charges. He was sentenced to 185 to 360 months in prison.There are two questions confronting the U.S. Supreme Court. Initially, could defense counsel's incorrect advice during the plea bargaining process or failure to convey a plea offer establish a successful ineffective assistance of counsel claim? Second, what remedy can the court impose once a successful ineffective assistance of counsel claim is made with regard to the inadequate legal representation during plea negotiations?
The state and federal government argue that the purpose of the Sixth Amendment right to effective assistance of counsel is to ensure that the defendant receives a fair trial — a trial that reliably determines the defendant's guilt or innocence.
In Cooper , the government suggests that he was convicted after a fair trial, and advice to forgo a guilty plea, including a plea bargain, did not "deprive the defendant of any substantive or procedural right to which the law entitles him."
The argument continues: "First, a not-guilty plea is merely an assertion of the defendant's constitutional right to a trial; unlike a guilty plea, a not-guilty plea does not waive anything and does not produce a conviction."
The state argues errors made in the plea bargaining process are not prejudicial. Apparently the government does not believe that plea negotiations are a critical stage of a proceeding that requires effective assistance of counsel.
That assertion is difficult to reconcile with the current reality of America's criminal justice system. Recently, The New York Times provided a host of statistics that underscores the shift from a trial-dominated system to a plea-dominated system. The National Center for State Courts found that the percentage of felonies taken to trial, in the nine states with available data, fell to 2.3 percent in 2009, down from eight percent in 1976. That is fewer than one in 40 felony cases — 35 years ago the ratio was about one in 12.
The shift is even clearer on the federal level. In 1977, the ratio of guilty pleas to criminal trial verdicts in federal district courts was a little more than four to one; by last year, it was almost 32 to one.
The U.S. Supreme Court has long recognized that a defendant has no constitutional right to plea bargain, and even if an agreement is reached, the prosecution and the judge have discretion to reject that plea bargain before the defendant gains any enforceable right. However, the landscape has changed. For most defendants the most critical stage of a criminal matter is not trial, but rather the negotiation of a favorable plea.
The court has begun to recognize that effective lawyering is crucial during the interaction between counsel and client during the plea bargaining process.
In Padilla v. Kentucky , the Supreme Court found that defense counsel's failure to correctly warn his client about deportation consequences was ineffective assistance of counsel.
As the law currently exists there is little protection for defendants trying to comprehend and navigate the complex issues involved in negotiating a plea. The process can be daunting. The negotiation may seem harried with unsophisticated defendants dealing with defense lawyers and prosecutors who are very familiar with the process.
Stephanos Bibas wrote in Plea-Bargaining Market: From Caveat Emptor to Consumer , "It is astonishing that a $100 credit-card purchase of a microwave oven is regulated more carefully than a guilty plea that results in years of imprisonment."
Bibas argued it would not take much to extend the consumer protection analogy to plea bargains. Bibas further argued that the legislature could procedurally "ensure a modicum of understanding and advice."
The court may well find, pursuant to Strickland v. Washington , that Cooper and Frye were not afforded effective assistance of counsel. The second question may be more difficult — the remedy. The state and federal government argue that it would be illogical to provide a remedy to Cooper and Frye when they have no constitutional right to a plea.
How does the court make Cooper and Frye whole? Do they get new trials? That puts them in the same position they are in now. Do they get the original plea offer? That might be a benefit that could have theoretically eluded them. The judge could have rejected the plea. Do they get some modified plea agreements? The fairness of that is certainly in question. The government's brief argues, "Courts cannot recreate the balance of risks and incentives on both sides that existed prior to trial."
The appropriate remedy would appear to require Cooper and Frye to accept the original plea offers made by the respective prosecutors. This is the only remedy which returns the men to the position they were prior to the ineffective assistance of counsel. As Frye's counsel argues in his brief to the U.S. Supreme Court, "The object of the remedy for ineffective assistance is to 'identify and neutralize the taint by tailoring relief appropriate in the circumstances to assure the defendant the effective assistance of counsel.'"
Cooper and Frye are scheduled to be argued before the U.S. Supreme Court on Oct. 31.
Visit Matt Mangino
Pennsylvania Law Weekly
October 18, 2011
In Blaine Lafler v. Anthony Cooper , the court will consider whether an attorney's advice to his criminal client to reject a favorable plea bargain based on an incorrect understanding of the law was ineffective assistance of counsel. In Missouri v. Galin E. Frye , the court will consider whether counsel's failure to disclose the terms of a favorable plea offer is a violation of the Sixth Amendment right to a fair trial.
Frye was charged with a felony for driving with a revoked license. He was appointed a public defender, Michael Coles. The district attorney sent Coles a letter offering a reduced charge and 90 days in jail. Coles received the letter and made written notations. However, Coles never communicated with Frye regarding the letter and therefore Frye never learned of the plea offer.
Frye subsequently made an open plea and was sentenced to three years in prison. He filed a claim pursuant to the Sixth Amendment alleging ineffective assistance of counsel. The Court of Appeals agreed and the appeal by the State of Missouri followed.
In Cooper's case, the prosecutor communicated a verbal plea offer to Cooper's attorney, Brian McClain. Pursuant to the offer, Cooper would plead to assault with intent to murder with a recommended sentence of 51 to 85 months in prison. Cooper would have accepted the plea because he "was guilty."
However, Cooper's attorney talked him out of accepting the plea based on a misunderstanding of the law. McClain incorrectly thought because the victim was shot below the waist the state could not establish the element of intent. McClain thought a better plea deal would come closer to trial. Instead, Cooper went to trial and the jury found him guilty on all charges. He was sentenced to 185 to 360 months in prison.There are two questions confronting the U.S. Supreme Court. Initially, could defense counsel's incorrect advice during the plea bargaining process or failure to convey a plea offer establish a successful ineffective assistance of counsel claim? Second, what remedy can the court impose once a successful ineffective assistance of counsel claim is made with regard to the inadequate legal representation during plea negotiations?
The state and federal government argue that the purpose of the Sixth Amendment right to effective assistance of counsel is to ensure that the defendant receives a fair trial — a trial that reliably determines the defendant's guilt or innocence.
In Cooper , the government suggests that he was convicted after a fair trial, and advice to forgo a guilty plea, including a plea bargain, did not "deprive the defendant of any substantive or procedural right to which the law entitles him."
The argument continues: "First, a not-guilty plea is merely an assertion of the defendant's constitutional right to a trial; unlike a guilty plea, a not-guilty plea does not waive anything and does not produce a conviction."
The state argues errors made in the plea bargaining process are not prejudicial. Apparently the government does not believe that plea negotiations are a critical stage of a proceeding that requires effective assistance of counsel.
That assertion is difficult to reconcile with the current reality of America's criminal justice system. Recently, The New York Times provided a host of statistics that underscores the shift from a trial-dominated system to a plea-dominated system. The National Center for State Courts found that the percentage of felonies taken to trial, in the nine states with available data, fell to 2.3 percent in 2009, down from eight percent in 1976. That is fewer than one in 40 felony cases — 35 years ago the ratio was about one in 12.
The shift is even clearer on the federal level. In 1977, the ratio of guilty pleas to criminal trial verdicts in federal district courts was a little more than four to one; by last year, it was almost 32 to one.
The U.S. Supreme Court has long recognized that a defendant has no constitutional right to plea bargain, and even if an agreement is reached, the prosecution and the judge have discretion to reject that plea bargain before the defendant gains any enforceable right. However, the landscape has changed. For most defendants the most critical stage of a criminal matter is not trial, but rather the negotiation of a favorable plea.
The court has begun to recognize that effective lawyering is crucial during the interaction between counsel and client during the plea bargaining process.
In Padilla v. Kentucky , the Supreme Court found that defense counsel's failure to correctly warn his client about deportation consequences was ineffective assistance of counsel.
As the law currently exists there is little protection for defendants trying to comprehend and navigate the complex issues involved in negotiating a plea. The process can be daunting. The negotiation may seem harried with unsophisticated defendants dealing with defense lawyers and prosecutors who are very familiar with the process.
Stephanos Bibas wrote in Plea-Bargaining Market: From Caveat Emptor to Consumer , "It is astonishing that a $100 credit-card purchase of a microwave oven is regulated more carefully than a guilty plea that results in years of imprisonment."
Bibas argued it would not take much to extend the consumer protection analogy to plea bargains. Bibas further argued that the legislature could procedurally "ensure a modicum of understanding and advice."
The court may well find, pursuant to Strickland v. Washington , that Cooper and Frye were not afforded effective assistance of counsel. The second question may be more difficult — the remedy. The state and federal government argue that it would be illogical to provide a remedy to Cooper and Frye when they have no constitutional right to a plea.
How does the court make Cooper and Frye whole? Do they get new trials? That puts them in the same position they are in now. Do they get the original plea offer? That might be a benefit that could have theoretically eluded them. The judge could have rejected the plea. Do they get some modified plea agreements? The fairness of that is certainly in question. The government's brief argues, "Courts cannot recreate the balance of risks and incentives on both sides that existed prior to trial."
The appropriate remedy would appear to require Cooper and Frye to accept the original plea offers made by the respective prosecutors. This is the only remedy which returns the men to the position they were prior to the ineffective assistance of counsel. As Frye's counsel argues in his brief to the U.S. Supreme Court, "The object of the remedy for ineffective assistance is to 'identify and neutralize the taint by tailoring relief appropriate in the circumstances to assure the defendant the effective assistance of counsel.'"
Cooper and Frye are scheduled to be argued before the U.S. Supreme Court on Oct. 31.
Visit Matt Mangino
Friday, July 22, 2011
Offenders to Get Review in Light of New Sentencing Guidelines
The Pennsylvania Law Weekly
July 19, 2011
By: Matthew T. Mangino
Federal judges will be pounding the Federal Sentence Guidelines as the result of two significant decisions in the last couple of weeks. Why? Two reasons. The first is the U.S. Supreme Court decision in Freeman v. United States , and the second is the decision by the U.S. Sentencing Commission regarding retroactivity of the sentence guideline amendment related to the crack/powder cocaine sentencing disparity.
In 2005, William Freeman pled guilty to a federal drug offense and was sentenced to 106 months in prison based on a plea agreement that referred to, and was consistent with, the federal sentence guideline of 46 to 57 months plus a 60-month gun enhancement.
Two years later, the U.S. Sentencing Commission amended the guideline to reduce the crack/powdered cocaine sentencing disparity. The guidelines were changed after criticism that harsher sentences for crack disproportionately punished African-Americans. The amendment changed the range of Freeman's sentence from 46 to 57 months to 37 to 46 months.
A federal judge refused Freeman's motion for a sentence reduction of about nine-months, and the 6th U.S. Circuit Court of Appeals affirmed. The Federal District Court and the 6th Circuit had ruled that offenders such as Freeman, who had entered into plea bargains in which the proposed sentence was binding on a judge, could not take advantage of the new guidelines because their sentences were not based on the guidelines.
However, the U.S. Supreme Court disagreed.
According to Justice Anthony Kennedy writing for the majority, "there is no reason to deny" Freeman a sentence reduction since federal law allows judges to correct sentences that were based on a guideline provision that was later adjusted, amended or ruled invalid.
In order to reduce unwarranted federal sentencing disparities, the Sentencing Reform Act of 1984 authorizes the U.S. Sentencing Commission to create, and to retroactively amend, sentencing guidelines to enhance judicial discretion. According to the U.S. Supreme Court in Freeman , "Title 18 U. S. C. §3582(c)(2) permits an offender who was sentenced to a term of imprisonment "based on" a guidelines sentencing range that has subsequently been lowered by retroactive amendment to move for a sentence reduction.
"In every case the judge must exercise discretion to impose an appropriate sentence," Kennedy wrote. "This discretion, in turn, is framed by the guidelines. And the guidelines must be consulted, in the regular course, whether the case is one in which the conviction was after a trial or after a plea, including a plea pursuant to an agreement that recommends a particular sentence."
Chief Justice John Roberts wrote a dissenting opinion, joined by Justices Antonin Scalia, Clarence Thomas and Samuel Alito. Roberts wrote that a plea bargain, like any agreement, has its bitter and sweet parts. "Because of today's decision, however, Freeman gets more sweet and the government more bitter than either side bargained for," wrote Chief Justice Roberts.
The precise impact of the Freeman decision is unclear because Justice Sonia Sotomayor joined in the majority, but concluded that a convicted offender is eligible for a reduction only if the plea agreement was specifically based on a recommended sentence that was tied to the guidelines.
This past week's other big news regarding the Federal Sentence Guidelines also had to do with the crack/powder sentencing disparity. The U.S. Sentencing Commission voted unanimously to give retroactive effect to its proposed permanent amendment to the federal sentencing guidelines that implements the Fair Sentencing Act of 2010.
The Fair Sentencing Act of 2010 reduced the crack/powder cocaine sentence disparity from 100 to 1 down to 18 to 1. According to The Washington Post , an offender would have to be convicted of selling 28 grams or more of crack to be hit with a five-year mandatory sentence. A 10-year prison term would be handed down for 280 grams or more. The legislation also eliminated a mandatory minimum sentence for simple possession.
The Federal Sentence Guidelines were at one time binding on federal judges. A federal judge had discretion to sentence a defendant, but only within the narrow sentencing range provided by the guidelines, according to the Congressional Research Service. In United States v. Booker (2005), the U.S. Supreme Court declared that the guidelines must be considered advisory rather than mandatory, in order to comply with the Constitution. Instead of being bound by the guidelines, sentencing courts must treat the federal guidelines as just one of a number of sentencing factors. After Booker , some judges imposed lower sentences on crack cocaine offenders than the sentences recommended by the guidelines. In 2007, the Supreme Court in Kimbrough v. United States , ruled that a court may impose a below-the-guidelines sentence based on its conclusion that the 100:1 crack/powder cocaine ratio created an unnecessary disparity.
A U.S. Sentencing Commission press release estimated, based on Fiscal Year 2010 sentencing data, that approximately 12,000 offenders may be eligible to seek a sentence reduction. The average sentence reduction for eligible offenders will be approximately 37 months, and the overall impact on the eligible offender population will occur incrementally over decades. The average sentence for these offenders, even after reduction, will remain about 10 years. The Bureau of Prisons estimates that retroactivity of the Fair Sentencing Act of 2010 amendment could result in a savings of more than $200 million within the first five years after retroactivity takes effect.
The chairwoman of the commission, Federal District Court Judge Patti B. Saris acknowledged that early release "may negatively impact public safety." She said that "careful thought given to the offender's potential risk to public safety" would be part of the judicial review called for in the new policy, reported The New York Times .
Federal judges will make the final determination of whether an offender is eligible for a lower sentence and by how much that sentence should be lowered in accordance with instruction provided by the Sentencing Commission. Those instructions will include specific consideration of whether reducing an offender's sentence would pose a risk to public safety.
Matthew T. Mangino is the former district attorney of Lawrence County. You can read his blog, The Cautionary Instruction, every Friday at the Pittsburgh Post-Gazette legal page Ispo Facto. Contact him at www.mattmangino.com
July 19, 2011
By: Matthew T. Mangino
Federal judges will be pounding the Federal Sentence Guidelines as the result of two significant decisions in the last couple of weeks. Why? Two reasons. The first is the U.S. Supreme Court decision in Freeman v. United States , and the second is the decision by the U.S. Sentencing Commission regarding retroactivity of the sentence guideline amendment related to the crack/powder cocaine sentencing disparity.
In 2005, William Freeman pled guilty to a federal drug offense and was sentenced to 106 months in prison based on a plea agreement that referred to, and was consistent with, the federal sentence guideline of 46 to 57 months plus a 60-month gun enhancement.
Two years later, the U.S. Sentencing Commission amended the guideline to reduce the crack/powdered cocaine sentencing disparity. The guidelines were changed after criticism that harsher sentences for crack disproportionately punished African-Americans. The amendment changed the range of Freeman's sentence from 46 to 57 months to 37 to 46 months.
A federal judge refused Freeman's motion for a sentence reduction of about nine-months, and the 6th U.S. Circuit Court of Appeals affirmed. The Federal District Court and the 6th Circuit had ruled that offenders such as Freeman, who had entered into plea bargains in which the proposed sentence was binding on a judge, could not take advantage of the new guidelines because their sentences were not based on the guidelines.
However, the U.S. Supreme Court disagreed.
According to Justice Anthony Kennedy writing for the majority, "there is no reason to deny" Freeman a sentence reduction since federal law allows judges to correct sentences that were based on a guideline provision that was later adjusted, amended or ruled invalid.
In order to reduce unwarranted federal sentencing disparities, the Sentencing Reform Act of 1984 authorizes the U.S. Sentencing Commission to create, and to retroactively amend, sentencing guidelines to enhance judicial discretion. According to the U.S. Supreme Court in Freeman , "Title 18 U. S. C. §3582(c)(2) permits an offender who was sentenced to a term of imprisonment "based on" a guidelines sentencing range that has subsequently been lowered by retroactive amendment to move for a sentence reduction.
"In every case the judge must exercise discretion to impose an appropriate sentence," Kennedy wrote. "This discretion, in turn, is framed by the guidelines. And the guidelines must be consulted, in the regular course, whether the case is one in which the conviction was after a trial or after a plea, including a plea pursuant to an agreement that recommends a particular sentence."
Chief Justice John Roberts wrote a dissenting opinion, joined by Justices Antonin Scalia, Clarence Thomas and Samuel Alito. Roberts wrote that a plea bargain, like any agreement, has its bitter and sweet parts. "Because of today's decision, however, Freeman gets more sweet and the government more bitter than either side bargained for," wrote Chief Justice Roberts.
The precise impact of the Freeman decision is unclear because Justice Sonia Sotomayor joined in the majority, but concluded that a convicted offender is eligible for a reduction only if the plea agreement was specifically based on a recommended sentence that was tied to the guidelines.
This past week's other big news regarding the Federal Sentence Guidelines also had to do with the crack/powder sentencing disparity. The U.S. Sentencing Commission voted unanimously to give retroactive effect to its proposed permanent amendment to the federal sentencing guidelines that implements the Fair Sentencing Act of 2010.
The Fair Sentencing Act of 2010 reduced the crack/powder cocaine sentence disparity from 100 to 1 down to 18 to 1. According to The Washington Post , an offender would have to be convicted of selling 28 grams or more of crack to be hit with a five-year mandatory sentence. A 10-year prison term would be handed down for 280 grams or more. The legislation also eliminated a mandatory minimum sentence for simple possession.
The Federal Sentence Guidelines were at one time binding on federal judges. A federal judge had discretion to sentence a defendant, but only within the narrow sentencing range provided by the guidelines, according to the Congressional Research Service. In United States v. Booker (2005), the U.S. Supreme Court declared that the guidelines must be considered advisory rather than mandatory, in order to comply with the Constitution. Instead of being bound by the guidelines, sentencing courts must treat the federal guidelines as just one of a number of sentencing factors. After Booker , some judges imposed lower sentences on crack cocaine offenders than the sentences recommended by the guidelines. In 2007, the Supreme Court in Kimbrough v. United States , ruled that a court may impose a below-the-guidelines sentence based on its conclusion that the 100:1 crack/powder cocaine ratio created an unnecessary disparity.
A U.S. Sentencing Commission press release estimated, based on Fiscal Year 2010 sentencing data, that approximately 12,000 offenders may be eligible to seek a sentence reduction. The average sentence reduction for eligible offenders will be approximately 37 months, and the overall impact on the eligible offender population will occur incrementally over decades. The average sentence for these offenders, even after reduction, will remain about 10 years. The Bureau of Prisons estimates that retroactivity of the Fair Sentencing Act of 2010 amendment could result in a savings of more than $200 million within the first five years after retroactivity takes effect.
The chairwoman of the commission, Federal District Court Judge Patti B. Saris acknowledged that early release "may negatively impact public safety." She said that "careful thought given to the offender's potential risk to public safety" would be part of the judicial review called for in the new policy, reported The New York Times .
Federal judges will make the final determination of whether an offender is eligible for a lower sentence and by how much that sentence should be lowered in accordance with instruction provided by the Sentencing Commission. Those instructions will include specific consideration of whether reducing an offender's sentence would pose a risk to public safety.
Matthew T. Mangino is the former district attorney of Lawrence County. You can read his blog, The Cautionary Instruction, every Friday at the Pittsburgh Post-Gazette legal page Ispo Facto. Contact him at www.mattmangino.com
Subscribe to:
Posts (Atom)