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Supreme Court Cases Significantly Increase Defense Attorney's Obligations

Good News: Fast-Track Programs Now Available in All Federal District Courts

Warning: Time Off for RDAP (Residential Drug Abuse Program)

B.O.P. : HALFWAY HOUSE BEDS ARE SCARCE

Supreme Court Cases Significantly Increase Defense Attorney's Obligations in Respect to Guilty Pleas and Plea Bargains.

May 26, 2012

Today, approximately 97% of all federal criminal prosecutions are resolved through guilty pleas. In other words, only a very small number of defendants go to trial. Over the last two years (and just in the last few months) the Supreme Court has decided three cases that acknowledge that present-day criminal justice is overwhelmingly involved with guilty pleas and with plea bargaining and that, as a consequence, a defense attorney must give competent advice regarding guilty pleas, as well as plea offers made by the government.

Let's look at each of these cases and what they mean to a defendant who has been busted by the feds.

The first case is PADILLA v. KENTUCKY, decided March 31, 2010. Padilla, a native of Honduras, had been a lawful permanent resident of the United States for more than 40 years, though he was NOT a citizen. He served with honor as a member of the U.S. Armed Forces during the Vietnam War. He faced deportation after pleading guilty to the transportation of a large amount of marijuana in his tractor-trailer in the Commonwealth of Kentucky.

Padilla's attorney failed to advise him of this consequence prior to his entering the plea, and also told him that he "did not have to worry about immigration status since he had been in the country so long." Deportation consequences of a conviction are known as "collateral consequences" (as distinguished from direct consequences such as the length of sentence and the length of supervised release). For some time it has been well-established law that an attorney must give effective representation (and thus correct advice) as to the direct consequences of a conviction; it has not been clear what his obligations are with respect to collateral consequences of a conviction.

In PADILLA, the Court ruled that an attorney must give accurate advice as to the deportation consequences of a guilty plea. In Padilla's case the deportation consequences were clear; the Court found that a simple reading of the relevant immigration statute would have let the defense attorney know that Padilla would be deported as a consequence of pleading guilty. The Court decided that when the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence for a conviction, counsel must inform his client whether he will be deported upon conviction.

The Court also found that Immigration law can be complex and it is a legal specialty of its own. Many attorneys who represent clients facing criminal charges will not be well versed in it. There will, therefore, be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the defense attorney in such cases is more limited. When the law is not succinct and straightforward, a defense attorney need do no more than advise a noncitizen client that pending criminal charges MAY carry a risk of adverse immigration consequences.

The second case is LAFLER v. COOPER, decided March 21, 2012. Cooper was charged under Michigan law with assault with intent to murder and three other offenses. The prosecution offered to dismiss two of the charges and to recommend a 51-to-85-month sentence on the other two, in exchange for a guilty plea. In a communication with the court, Cooper admitted his guilt and expressed a willingness to accept the offer. But he rejected the offer, after his attorney convinced him that the prosecution would be unable to establish intent to murder because the victim had been shot below the waist. At trial, Cooper was convicted on all counts and received a mandatory minimum 185-to-360-month sentence.

The Supreme Court found that Cooper's attorney's advice was incorrect and constituted ineffective assistance of counsel (technically known as "deficient performance"). The Court found that, despite the fact that Cooper had received a fair trial and been convicted, that trial could not wipe clean the fact that he had been lead astray by his attorney and refused the plea offer, which had offered him a sentence less than one third of that which he later received after conviction at trial. The attorney had been obligated to give reasonable professional advice in relation to the plea offer and the subsequent potential for conviction at trial.

The third case is MISSOURI v. FRYE, also decided March 21, 2012. Frye was charged with driving with a revoked license. Because he had been convicted of the same offense three times before, he was charged, under Missouri law, with a felony carrying a maximum four-year prison term. The prosecutor sent Frye's counsel a letter, offering two possible plea bargains, including an offer to reduce the charge to a misdemeanor and to recommend, with a guilty plea, a 90-day sentence. Frye's attorney, however, did not convey the offers to Frye, and they expired. He subsequently pleaded guilty with no underlying plea agreement and was sentenced to three years in prison.

The Supreme Court found that the Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected; that "the negotiation of a plea bargain is a critical stage for ineffective-assistance purposes." (Citing the ruling in Padilla) The Court found that, despite the fact that Frye had later entered a knowing and voluntary plea of guilty, that plea could not wipe clean the fact that his attorney had not communicated to him the original and more beneficial plea offer. The Court stated that, as a general rule, defense counsel has the duty to communicate formal prosecution offers to accept a plea on terms and conditions that may be favorable to the accused.

So, what are the lessons to be learned from these cases? First, is that, although all three were state cases and not federal cases, the rulings in them apply to federal defendants as well. Why? - Because the rulings involve the Sixth Amendment right to the assistance of counsel and thus apply equally to all defendants facing criminal prosecution. Second, is that these are important decisions and have already spread quickly through the ranks of defense attorneys; so defendants can reasonably expect much better performance by attorneys in communicating the deportation consequences of conviction, as well as any plea offer from the prosecution, as well as the relative advantages of the plea offer contrasted with the consequences of going to trial.

A third important point is that the ruling in Padilla encompasses only the deportation consequences of conviction. It has nothing to say about other collateral consequences of conviction, such as the potential loss of voting rights and government benefits such as food stamps. Many of these collateral consequences are discussed in the book Busted By The Feds. It is good to know them, especially as a defense attorney is not constitutionally obligated to discuss them with his client.

Fourth, and very important, is that, although all three of the defendants won their cases before the Supreme Court, they may in fact NOT gain anything of substance from their victories. The Court remanded each case back to the state to determine how the error by counsel will be remedied. The potential remedies are discussed is some detail by the Court and they involve potentially complex procedures. It is clear that the defendants still have real work to do in order to gain anything of substance, such as a new trial or a shorter sentence. On the facts of the cases, I would estimate that Frye has no chance of gaining anything of substance; Padilla has a very small chance, and only Cooper seems sure of getting a shorter sentence.

The above paragraph communicates something critical to the defendant: YOU DO NOT WANT TO HAVE TO RAISE ISSUES ON APPEAL (even potential winners) WHEN YOU COULD HAVE HANDLED THEM INTELLIGENTLY BEFORE CONVICTION.

For example, if you are a noncitizen, you need to 1) Ask your attorney what are the deportation consequences you face. Yes, your attorney is now obligated to tell you the consequences; still, better safe than sorry, so question him about them because of the chance he may not fulfill his obligation and fail to tell you about them. 2) Check the deportation consequences yourself. Read your indictment and the charges you face, and then read the relevant immigration law and how it relates to those charges and deportation. This is especially important if the attorney is not clear as to what the exact consequences are, and thus tells you that you MAY face deportation consequences. 3) If necessary, hire an immigration lawyer to explain the deportation consequences. 4) If it is clear that the charges mandate deportation, and if staying in this country is very important to you, then you must weigh the risk of going to trial in order to avoid deportation. Or you must ask your attorney if there is any way that the charges can be changed, so that a guilty plea would not mandate deportation - is the prosecutor open to such a change?

As for plea offers, make it clear to your attorney that he should communicate any offer from the government IMMEDIATELY to you so that you will have time to carefully consider it before the offer expires. Make sure you understand your sentencing guidelines and the potential sentence you face if you go to trial and lose; see how it compares to the sentence in the plea offer. Plea bargaining is discussed in great detail in Busted By The Feds; several chapters are devoted to the subject. Suffice it to say that it is an area with a lot of hidden traps and pitfalls, and the onus is on you, the defendant, to carefully check everything your attorney tells you and to understand for yourself a plea offer.

If your attorney tells you (as Cooper's did) that the government will not be able to convict you at trial, BE VERY SKEPTICAL of his advice. Prosecutors are not fools; generally they do not bring serious charges that are bogus. Even though you are not an attorney, often you can get a gut sense if the attorney is correct. For example, Cooper, if he had taken the time, should have been able to realize that just because the bullets he fired landed below the victim's waste, it would still be easy for the prosecution to establish attempt to murder.

Finally, keep a written record of all your interactions with your attorney (even your attempted interactions, such as phone calls or letters to your attorney to which he did not respond). A written record is essential if your attorney makes serious errors and you later want to file an appeal or a 2255 motion claiming ineffective assistance of counsel.

In fact, from the moment you are arrested and are facing criminal charges, begin to WRITE and NOT JUST THINK about your defense and the charges you are facing. Busted By The Feds encourages every defendant to take an active part in his case; it contains the critical information a defendant needs to protect himself. But there is A LOT OF INFORMATION. You must pick out the points that apply to you and write them down and consider them carefully. The subject is too vast and important to try and keep the information in your head. Remember that in the final analysis, you, the defendant, best know the facts of your case; and FAR AND AWAY you have the strongest motivation to understand your case and get the best result possible. So, give yourself the essential tool of writing and considering all aspects of your case, as well as recording all interactions with your attorney.

DO NOT SELL YOURSELF SHORT. Busted By The Feds strongly recommends that you hire the best defense attorney you can, and that such an attorney is probably the most important asset in your case. Nevertheless, even the best attorney can be helped by a conscientious client who is also considering the case.

Just to give you an example, I know of a defendant who was represented by one of the most famous attorneys in the country in a complicated Savings and Loan case in Texas. He was convicted on a set of charges in one federal district after he had signed a plea agreement that resolved charges in another district. It was only after he arrived in Federal prison and began to consider the case himself and use the law library, that the defendant realized that the plea agreement (a very complicated plea agreement) had actually forbid his being prosecuted on the charges he was convicted of. Believe me, this man was kicking himself for not having taken the same interest in his case beforehand, while he was facing charges and his attorney was preparing a defense. He realized that all along he himself had had the resources to look carefully and discover the key fact that would have prevented his prosecution. He just didn't take the necessary interest and do the necessary work.

Okay, nuff said for now, and good luck.

Good News: Fast-Track Programs Now Available in All Federal District Courts

March 2012.

In 2003 Congress directed the Sentencing Commission to issue a guideline for something called an “Early Disposition Program” with authority for downward deductions of up to four levels. The Commission did as Congress directed and the program resulted in certain “fast-track” programs, which were meant to give defendants sentencing concessions in exchange for a prompt guilty plea and the waiver of procedural rights such as the right to appeal. The vast majority of these cases involved aliens who would agree to immediate deportation following the completion of their sentences. The application of this program was only available in certain districts.

The fast-track programs at first were confined to districts in the Southwest of the United States, which handle a great many deportation cases. As time passed, the programs were adopted in additional districts no longer limited to the southwestern border districts; rather, some, but not all, non-border districts sought and received authorization to implement fast-track programs.

Because districts without fast-track programs were often sentencing deportable aliens to sentences greater than those in the fast-track districts, sentencing disparities resulted, and these disparities were often contested by defendants asking for a Booker variance to bring their sentences into line with similar defendants in a fast-track district. The Courts of Appeals, however, could not reach a consensus if such Booker variances are allowed; the Circuits split on the issue. Because of this circuit conflict, Federal Attorneys in non-fast-track districts routinely faced motions for variances based on fast-track programs in other districts. Courts that granted such variances were left to impose sentences that introduced additional sentencing disparities.

The Department of Justice eventually realized that to avoid the disparities and the resources involved in deciding Booker variances, it would allow fast-track programs for deportable aliens in ALL districts. Districts prosecuting felony illegal reentry cases should implement the new policy no later than March 1, 2012.

The directive from the DOJ also clarifies the criteria for how an alien defendant qualifies for the fast-track program, and how the program is to be implemented:

A. Defendant Eligibility. The United States Attorney retains the discretion to limit or deny a defendant’s participation in a fast-track program based on –

(1) The defendant’s prior violent felony convictions (including murder, kidnapping, voluntary manslaughter, forcible sex offenses, child-sex offenses, drug trafficking, firearms offenses, or convictions which otherwise reflect a history of serious violent crime);

(2) The defendant’s number of prior deportations, prior convictions for illegal reentry under 8 U.S.C. § 1326, prior convictions for other immigration-related offenses, or prior participation in a fast-track program;

(3) If the defendant is part of an independent federal criminal investigation, or if he or she is under any form of court or correctional supervision; or

(4) With supervisory approval, circumstances at the time of the defendant’s arrest or any other aggravating factors identified by the United States Attorney.

B. Expedited Disposition. Within 30 days from the defendant being taken into custody on federal criminal charges, absent exceptional circumstances such as the denial of adequate assistance of counsel or a substantial delay in necessary administrative procedures, the defendant must agree to enter into a plea agreement consistent with the requirements of Section C, below.

C. Minimum Requirements for “Fast-Track” Plea Agreement. The defendant must enter into a written plea agreement that includes at least the following items –

(1) The defendant agrees to a factual basis that accurately reflects his or her offense conduct and stipulates to the facts related to the prior conviction and removal;

(2) The defendant agrees not to file any of the motions described in Rules 12(b)(3), Fed. R. Crim. P.;

(3) As determined by the United States Attorney after taking into account applicable law and local district court practice and policy, the defendant agrees to waive the right to argue for a variance under 18 U.S.C. § 3553(a), and to waive appeal and the opportunity to challenge his or her conviction under 28 U.S.C. § 2255, except on the issue of ineffective assistance of counsel; and

(4) The United States Attorney shall retain discretion to impose additional procedural requirements for fast-track plea agreements; specifically, the United States Attorney has discretion to require that the defendant agree to enter into a sentencing agreement pursuant to Fed. R. Crim. P. 11(c)(1)(C), and/or to waive a full pre-sentence investigation as conditions of participation.

D. Additional Provisions of a Plea Agreement . If the above conditions are satisfied – including those imposed at the discretion of the United States Attorney as provided for in Section C(4) – the attorney for the Government shall move at sentencing pursuant to Sentencing Guidelines Section 5K3.1 for a downward departure from the adjusted base offense level found by the District Court (after application of the adjustment for acceptance of responsibility) as follows:

Four levels for all defendants, except those with a criminal history category VI or with at least one felony conviction for a serious violent offense. For the latter category, if the defendant is not excluded under Section A(1), the government may only offer a two-level departure, with supervisory approval on a case-by-case basis after considering the interest of public safety.

Warning: Time Off for RDAP (Residential Drug Abuse Program)
May Not Be What You Think!

February 2010.

Many federal defendants agree to accept plea agreements because they believe that they will actually serve one year less than their sentences because they expect to complete the RDAP (Residential Drug Abuse Program) in prison and get a year off their time. But for most of them that “year off” is now just a pipe dream.

For several years the Bureau of Prisons has had more demand for the RDAP programs than it has beds. It also had a shortage of halfway-house space for all the RDAP graduates who did get the year off. So, it has gradually been reducing the average time off that it gives to those who do graduate. At first, the reductions in time off weren’t significant, so the average reduction remained reasonably close to a full year; but in the recent past B.O.P. policies have changed and the average time off is now significantly less – perhaps as low as six months instead of a year – and many RDAP graduates are getting no time off at all. Those who do get time off are often getting only six months or even three months, instead of the full year off.

B.O.P. program statement 5331.02 sets out the current rules regarding time off for RDAP completion. These rules apply to inmates who begin the RDAP program on or after March 16, 2009. Since the program typically lasts only nine months, these rules should now apply to virtually everyone. The pertinent portion of Program Statement 5330.11 is reproduced here:

10. Length of Sentence
Following completion of Transitional Drug Abuse Treatment (TDAT), inmates found to be eligible for release under 18 U.S.C. § 3621(e) may receive that release based upon the length of the sentence, as detailed in the table below.

Note: The early release time-frame reductions shown on the table are not pro-rated by days. For, example, if an inmate’s sentence is 36 months and any number of days, 9 months is the maximum sentence reduction allowed, whether the inmate’s sentence is 36 months and 0 days, or 36 months and 30 days.
Any change in current offense sentence length as imposed by order of the Court will result in a recalculation of sentence computation and provisional incentive. For example, a 36-month sentence reduced to a 24-month sentence will result in no more than a 6-month early release.

The eligibility rules for RDAP have also been tightened up by the B.O.P. to make it more difficult for inmates to qualify. One significant such change is that the B.O.P. now takes it upon itself to decide whether or not an inmate has a drug problem, regardless of what might be said about that subject in the inmate’s P.S.I. (Pre-Sentence Investigation Report). So, it is no longer enough to prove it to medical staff in the B.O.P. by showing them your needle marks or other convincing evidence.

On the flip side, the changes in the rules also make it easier for some inmates to get into RDAP (and get time off) who couldn’t in the past. For example, inmates with a real drug problem whose P.S.I. fails to mention it can now provide proof to the prison staff and get into the program. And inmates convicted of child pornography offenses are now eligible for early release, where before they were not. (Inmates convicted of sex offenses against children remain ineligible)

Unfortunately, the B.O.P. has chosen to set out its rules and criteria for RDAP placement and for time off in two separate Program Statements. In order to fully understand the RDAP program and its benefits you must read both these program statements. P.S. 5331.02 presents the early release procedures under 18 U.S.C. § 3621(e) and P.S. 5330.11 presents the Psychology Treatment Programs, including RDAP. You may access either of these documents by going to the link below.

If you are negotiating a plea agreement, it is in your best interests to have the latest and most accurate information about the sentence reduction available to you under B.O.P. practices.

Go to this ink to locate the relevant B.O.P. Program statements:

http://www.bop.gov/DataSource/execute/dsPolicyLoc

B.O.P. : HALFWAY HOUSE BEDS ARE SCARCE

January 2010.
Most inmates being realease from federal prisons now are getting less time in halfway houses than they would have received if the had been released two years ago. Case Managers and Wardens may still reccomend the same terms of up to six months that they have been recommending for several years, but those recommendations are being reduced by the B.O.P.'s CCMs (Community Corrections Managers) when the final determinations are made (usually a year or less before the inmate's projected realease date.) As a result, many inmates who expected to go to a halfway house in three, four or six months are finding that their release dates (to the halfway houses) are later than they expected. And there is little they can do about this.

The reason for this recent change in the B.O.P.'s practise is easy to understand: It's the economy! Halfway house residents during 2009 have found it harder that usual to find steady jobs. As a result, many of them are remaining in the halfway houses for their full terms, instead of going out to home releases after they have earned a couple of paychecks. These longer stays in the halfway houses are keeping those beds full, so they are not becoming available for new releases as early as they used to. And there is no place to put new inmates who are being released now.

I am now seeing many inmates who would normally get six months in a halfway house being sent to them just 60 or 90 days prior to their release dates. Some of them are getting as little as a week of halfway house time.

The B.O.P. is not doing a good job at explaining this problem to it's inmates, so there are many men and women getting unpleasant surprises when they least expect them - just before they expected to go out the gates. If you or an acquaintance is counting on a longer term - four to six months - in a halfway house later this year, you would be wise to plan for the contingency that the time you have been led to expect may not be the time that you finally receive.

12 month halfway house term.

In a related matter, many inmates are expecting to get 12 months in a halfway house, instead of just six months. This expectation is driven by the Second Chance Act that Congress passed in 2008.

It is true that the Second Chance Act now permits the B.O.P. to give inmates up to twelve months in a halfway house, but it is not true that anyone being released in the next couple of years will get the extra halfway house time.
The law itelf instructed the B.O.P. to begin implementing the longer terms on an experimental basis, and the B.O.P. isn't doing very much experimenting. I have heard of rare instances of someone getting the extra six months, but I have never had personal knowledge of one. They appear to be extremely rare, given to very few inmates across the country. It is not yet clear what criteria the B.O.P. uses to choose the lucky ones who get the extra halfway house time, and the suspicion exists that is is being used as a special reward to inmates who have been especially helpful to staff in one way or another.

But there is another more important reason very few inmates get the extra time in a halfway house, and it is the same problem discussed in the first part of this article: a lack of bedspace.

Even before the Second Chance Act was passed by Congress, the B.O.P. was already using all available halfway house beds to near-capacity. So even if they had wanted to start giving everybody double the earlier terms in halfway houses, there was no bedspace to put them in. The only way the longer halway house periods contemplated by the Second Chance Act can ever become a reality is if the number of halfway houses is substantially increased, or if given that opportunity. With the current political and ecomonic situation it doesn't seem likely that either of these two possibilities will occur in the foreseeable future, so 12-month terms in halfway houses are still just a dream in inmate's eyes; they are not likely to become common for many more years.