Apprendi and the dynamics of guilty pleas.

• Author: Bibas, Stephanos
• Position: Apprendi v. New Jersey - Response to Nancy J. King and Susan R. Klein, Stanford Law Review, vol. 54, p. 295, 2001

Professors Nancy King and Susan Klein devote most of their Commentary to a single subsection of my recent article. (1) My entire article argued that Apprendi v. New Jersey (2) exemplified criminal procedure's misguided focus on jury trials at the expense of the real world of guilty pleas. Professors King and Klein focus on my narrower point that Apprendi undercuts due process by making it harder for many defendants to secure judicial hearings after they plead guilty. In summary, I argued that defendants used to be able to get the massive benefits of pleading guilty while still enjoying enhancement hearings at sentencing. Now that enhancements are issues for jury trials, defendants cannot gain both benefits. They must either allocute to and concede these enhancement issues to gain guilty-plea benefits or go to trial on enhancement issues and forfeit these plea benefits. Professors King and Klein claim that defendants face no additional pressure to give up hearings under this scheme. But they fail to see how prosecutorial and judicial behavior reinforce the pressures to plead guilty, making hearings harder to secure for many defendants.

First, they note that even before Apprendi prosecutors had the same bargaining chips to induce guilty pleas. (3) Both before and after Apprendi, defendants who pleaded guilty enjoyed 35% sentence reductions for accepting responsibility, could avoid recidivism and perjury enhancements, and could gain other benefits as well. (4) What Professors King and Klein miss is that Apprendi has changed the worth of these bargaining chips. Before Apprendi, prosecutors could use these bargaining chips to force guilty pleas. (5) But defendants could reap the benefits of pleading guilty while still getting enhancement hearings at sentencing. Now, however, enhancements are elements of the offense. Pressure to plead guilty simultaneously pressures defendants to give up enhancement issues. To this extent, defendants lose hearing rights and are worse off.

Professors King and Klein object to my considering the possibility of guilty pleas, without plea agreements, followed by sentencing hearings, as most issues are resolved as part of plea bargains and so actual sentencing hearings are uncommon. (6) This objection misses my point. Before Apprendi, defendants had the realistic option of pleading guilty without agreements and insisting on enhancement hearings at sentencing. Plea bargaining took place in the shadow of this option, forcing prosecutors to provide additional consideration and strike reasonable deals in return for waivers of these realistic hearing rights. Prosecutors had to purchase these waivers, so the rights led prosecutors to make lower plea offers, even when defendants ultimately did not exercise these rights. This option, however, is foreclosed by Apprendi. In exchange for taking away these realistic hearing rights, it gave defendants theoretical jury-trial rights that they cannot afford to exercise lest they forfeit the benefits of pleading guilty. Prosecutors know that for most defendants the threat of going to trial is implausible, so these trial rights do not cast serious shadows over most plea bargaining. Knowing that judges have much less power to check their bargains, prosecutors can now drive harder bargains. (7)

Professors King and Klein respond that after Apprendi defendants could plead guilty to base offenses or offer to do so, reaping the benefits of pleas while still enjoying trials on enhancements. Prosecutors need not charge lesser-included offenses, however, and courts are unlikely to let defendants plead guilty to lesser-included offenses if prosecutors have not charged them. (8) True, one circuit has granted acceptance-of-responsibility credit to a defendant who offered to plead guilty to two base offenses, was convicted at trial, and was sentenced based on exactly the drug quantity to which he had offered to plead guilty. (9) Three other circuits have taken a contrary approach, however. (10) And the federal Sentencing Guidelines commentary denies acceptance-of-responsibility credit to defendants who deny "the essential factual elements of guilt" at trial. (11) Perhaps other courts will refuse to apply this plain language to enhancement trials or the Sentencing Commission will amend it; perhaps not. Even if defendants do get acceptance-of-responsibility credit, judges still have discretion to sentence within the resulting ranges. In practice, judges sentence leniently those who plead guilty and spare the courts trials, while being harsher on those who insist on trials. (12) In short, defendants must now forfeit at least some of the benefits of pleading guilty if they want hearings on enhancements at trial. Apprendi forces defendants onto the horns of this dilemma.

Professors King and Klein further claim that my example of federal drug sentencing is atypical of the criminal justice system, though more than a third of federal inmates are charged with drug crimes. (13) It is true that peculiar features of the federal drug laws and guidelines (such as relevant conduct, mandatory minima, and recidivism enhancements) exacerbate the Apprendi problem. But the root of the problem lies not in these features, but in the massive discounts for guilty pleas common to most crimes and jurisdictions. Federal and many state defendants must now choose between enhancement hearings and the massive discounts for pleading to every element. This dilemma simply did not exist before Apprendi. (14)

Professors King and Klein also overstate how much Apprendi strengthens hearings by requiring proof beyond a reasonable doubt of enhancements. (15) This supposed benefit is largely illusory, as legislatures and prosecutors will circumvent it. Even if prosecutors fail to prove an enhancement beyond a reasonable doubt at trial, the Federal Sentencing Guidelines allow them to try to prove it again at sentencing by only a preponderance of the evidence. This use of relevant conduct at sentencing swallows up the reasonable-doubt safeguard at trial. (16) Judges can do more or less the same thing under state indeterminate-sentencing schemes by using their broad discretion to punish the defendant's actual conduct over and above the conduct of conviction. In other words, judges who sentence within broad sentencing ranges can look at defendants'...