In Arizona state courts, plea agreements are generally simple. Although a few paragraphs tend to confuse most defendants and require a little bit of explaining, they’ll at least set forth a definite number of years in prison, or maybe a range. Or they’ll say probation and maybe specify a specific jail term. Exactly what the defendant is facing is fairly clear. As I’ve started to do more federal work, however, I’ve noticed that things aren’t always that way in federal court.
I wrote before about how silly it is to pretend at the change of plea hearing that the defendant wasn’t coerced when we all know that mandatory minimums cause coercion in nearly every case. That isn’t quite as common in federal cases, but there’s a different sort of silliness in federal court during the part of the change of plea when the judge asks the defendant if he understands the plea.
Imagine a typical illegal reentry case, one where the defendant was caught here after previously being deported. The pleas typically involve the defendant getting one reduction for accepting responsibility and another for participating in the fact track plea process. The defendants typically have little to no education. I’ve heard plenty of conversations like this one in the federal prison visit room:
CLIENT: What am I looking at?
LAWYER: Well, there’s a statutory maximum of ten years.
CLIENT: I’m getting ten years?
LAWYER: No, but you can’t get more than ten years.
CLIENT: How many am I getting then?
LAWYER: I can’t say for sure, but there are guidelines that will at least give you a pretty good idea.
LAWYER: Yes. The judges here tend to follow them.
LAWYER: Yes, I can’t say for sure they will. Sometimes they don’t.
LAWYER: To figure out your guideline sentence, you basically just need to know your offense level and criminal history category.
CLIENT: What’s my offense level?
LAWYER: It’s not that simple.
CLIENT: Why not?
LAWYER: Well, you definitely start off with a base level of 8.
CLIENT: So I’m an 8?
LAWYER: No, that’s where you start.
CLIENT: I start at 8 years?
LAWYER: No, the offense level doesn’t correspond to a set number of years. It’s somewhat abstract.
LAWYER: So you start at 8, then you probably have to add 4 because of your prior criminal history.
LAWYER: Yes, I’m not sure. I can’t promise you anything, and the plea will explain that my predictions are null and void and have no force and effect anyway.
LAWYER: So 8 plus 4 equals 12, and that’s probably your offense level. It looks like you have 5 criminal history points so you’re a category 3.
CLIENT: But I only have 3 convictions. How can I have 5 points?
LAWYER: Some things are worth more points than others. But anyway, you find where level 12 and category 3 intersect on the chart…
LAWYER: Yes, the chart. On the chart, they intersect at 15-21.
LAWYER: No, months.
CLIENT: So I’m getting 15-21 months?
LAWYER: That’s my prediction about your guideline range without the plea.
CLIENT: So you can’t guarantee that’s the range?
LAWYER: Right, I can’t say for sure.
CLIENT: And the judge doesn’t have to follow it even if you are right?
A defendant may well be inclined to plead simply to avoid more confusion after a conversation like that. Unfortunately, the pleas aren’t much less confusing:
CLIENT: So what’s the plea?
LAWYER: Well, you will get reductions for accepting responsibility and participating in the fast track process.
CLIENT: So how much is that?
LAWYER: Again, I can’t say for sure, but it looks like a reduction of 2 for accepting responsibility.
CLIENT: It “looks” like a reduction of 2?
LAWYER: Well, it could be 3 if your level ends up higher, but I don’t think that will happen.
CLIENT: I want 3 instead of 2.
LAWYER: You would only get 3 if you’re over 16, and you’re better off subtracting 2 from 12 than subtracting 3 from 16.
LAWYER: Expect a reduction of 2.
LAWYER: After that, it looks like you will get another reduction of 4 thanks to the early disposition program.
LAWYER: So you’d probably end up with a guideline range of 2-8 months with the plea.
LAWYER: Yes, I can’t say for sure. All I can say is that you will get reductions with the plea.
At the change of plea hearing, the judge usually asks the defense attorney if he or she wishes to make a record of his or her guideline predictions. Most lawyers seem to decline to say anything, but I’ve heard a surprising number of those who do say something obviously wrong and get corrected by the judge. Additionally, in more federal cases than not, I’ve found there’s at least some dispute over either offense level or criminal history category. In other words, a probation officer, a prosecutor, or a lawyer, a person who calculates guideline ranges for a living, claims another person who calculates guideline ranges for a living did it wrong.
I suppose we are just using an impressively broad definition of the word “understand” when the judge asks, “do you understand the terms of the plea agreement?” It’s like asking me if I understand quantum physics or modern art, maybe. Regardless, it strikes me as both silly and sad every time I see a judge ask a defendant with a second grade education, someone who grew up in abject poverty and crawled for days through the hot desert to do hard labor to survive, whether they understand the plea in a system as confusing as ours.
It’s a strange game of make-believe, but it isn’t a surprising one.
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