Apprendi and plea bargaining.

• Author: King, Nancy J.
• Position: Response to Stephanos Bibas, Yale Law Journal, vol. 110, p. 1097, 2001

In his article Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, (1) Professor Stephanos Bibas advances an arresting thesis. He argues that the Court's recent decision in Apprendi v. New Jersey (2) backfires as an attempt to protect constitutional values. His primary claim is that the Apprendi elements rule (3) will "hurt many of the defendants it purports to help by ... depriv[ing]defendants of sentencing hearings, the only hearings they are likely to have. By making important factual disputes elements of crimes, it forces defendants to surrender sentencing issues such as drug quantity when they plead guilty." (4) Professor Bibas does admit that the elements rule has the countervailing benefit of a right to proof beyond a reasonable doubt of maximum-enhancing facts at trial. He claims nevertheless that prosecutors can easily circumvent this right by trying to prove an aggravating fact again at the sentencing heating under a lower standard of proof, (5) and that most defendants cannot afford to go to trial to take advantage of this right, because going to trial means losing points for acceptance of responsibility, (6) and risks perjury, (7) obstruction of justice, (8) recidivism, (9) and other enhancements under the Federal Sentencing Guidelines. (10) Thus, Professor Bibas concludes, the tragic consequence of Apprendi's elements rule is that "it has strengthened [the prosecutor's] bargaining position," (11) and "defendants on the whole will be worse off." (12)

This argument is indeed startling; it is also dead wrong. The prosecutor's coercive power to force a guilty plea is not strengthened by Apprendi. Every prosecutorial bargaining chip mentioned by Professor Bibas existed pre-Apprendi exactly as it does post-Apprendi. Before Apprendi, prosecutors using recidivism as a club could, and did, regularly insist that defendants admit aggravating facts as part of the plea or face additional time. When the prosecutor's threats of added time were not persuasive and the proof of aggravating facts weak, the defendant prior to Apprendi could refuse to admit to the aggravating fact, and plead guilty only to the offense without the aggravating fact. Nothing about Apprendi gives additional leverage to the prosecutor in this situation. A defendant who, prior to Apprendi, decided to risk trial rather than face the aggravated sentence will make the same decision after Apprendi. In fact, only one new bargaining chip is created in Apprendi, and the Court gives it unequivocally to the defendant. By raising the burden of proof, Apprendi makes it much more difficult for the prosecutor to prove aggravating facts that trigger longer sentences. If the prosecutor couldn't successfully convince the defendant to admit to the aggravating fact prior to Apprendi, his chances of successfully convincing the defendant to admit to it after Apprendi are lower, not higher.

As for those who would have pursued a guilty plea prior to Apprendi, they are not "on the whole" worse off either. Consider the single example Professor Bibas offers to prove his thesis: Al, the "typical federal drug trafficking defendant with one prior felony conviction" (13) whose dispute with the government concerns whether he is responsible for only the two kilos of cocaine found on his person, or also for the additional forty kilos found on his co-conspirators. Professor Bibas reasons that, before Apprendi, Al could plead guilty to the drug offense without a plea agreement, (14) obtain his three-point reduction for acceptance of responsibility under the Guidelines, and argue about the additional forty kilos at sentencing. If he wins, his guideline range for only two kilos is 63-78 months, if he loses, he faces 121-151 months for the forty-two kilos. (15) After Apprendi all of this changes, according to Professor Bibas. Proof of five or more kilograms of cocaine triggers an increased maximum sentence making drug quantity an element of a greater offense. But the greater offense also carries a mandatory minimum sentence of ten years. Al is forced to plead guilty to the greater offense involving five kilos or more and be sentenced to the mandatory minimum 120 months, Professor Bibas argues, because if he does not the prosecutor will file a prior felony enhancement, bringing Al's mandatory minimum sentence up to twenty years. (16) Thus, Professor Bibas concludes, "[t]he elements rule has cost Al the opportunity to contest almost five years of his sentence." (17)

This analysis is based on two faulty premises about bargaining behavior before Apprendi. A prosecutor who knew Al was a prior offender and believed that Al was responsible for dealing forty-two kilos would not have stood idly by and let him escape with a five-year sentence for two kilos. He would have done precisely what Professor Bibas predicts prosecutors will do after Apprendi --threaten Al with the prior conviction unless he enters into a plea agreement which includes an admission to all forty-two kilos. (18) Every arrow Professor Bibas finds after Apprendi in the prosecutor's quiver to force allocution to an aggravating fact was already there. In addition to underestimating the extent to which prosecutors already used recidivism enhancements in bargaining, Professor Bibas underestimates how routinely admissions to drug amounts were included in plea agreements before Apprendi. (19) Defendants who would have had to admit to drug quantity as part of their plea agreement before Apprendi are no worse off after the decision. For them, the door to the "second trial" on drug amount was already shut. True, we have no more empirical proof than Professor Bibas on these points, but we would wager that the pre-Apprendi Als of this world--that is, defendants who are prior offenders and who plead guilty to federal drug charges but manage to escape both prior offense enhancements and admissions of drug amounts in their plea agreements--are not as plentiful as Professor Bibas suggests.

Reliance on Al for proof that Apprendi hurts defendants is misleading in other ways. The fact is that for many defendants Apprendi is a powerful tool. Assume, for example an alleged drug offender, Bill, with no prior convictions and against whom the prosecutor has solid evidence of two kilos, but weak evidence of forty more. After Apprendi, Bill's attorney could tell the judge that Bill stands ready to plead guilty to the charge involving two kilos, now a lesser included offense, but will plead not guilty to the higher offense involving five kilos or more. If the prosecutor insists on a trial of the higher offense, and Bill admits the two kilos challenging only the extra forty, and wins, he still gains his three-point reduction for acceptance of responsibility. (20) Moreover, because the government must prove Bill's tie to five or more kilos beyond a reasonable doubt and provide the full array of procedural protections not afforded at sentencing (including the rules of evidence), Bill has a better chance of winning on the higher offense. (21) Sensible prosecutors will figure this out and not take Bill to trial on the higher offense in the first place, instead settling for a plea on the lesser offense. (22)

Indeed, for proof that Apprendi can assist defendants in federal drug cases we need not limit ourselves (as Professor Bibas does) to hypothetical cases. We include in a footnote just a sampling of actual decisions in which reviewing courts applying Apprendi have sometimes begrudgingly chopped ten years or more from the sentences of defendants convicted of federal drug crimes. (23) These cases, with dozens more reported weekly, tell the real story. (24) Apprendi raises the price of proving the larger drug quantity for the prosecution, and some defendants will succeed in contesting allegations of larger quantities despite the very high statutory maximum for the basic federal drug offense simpliciter. As a result, these defendants will secure convictions to lesser offenses through jury verdict or settlement. In fact, some felons convicted of drug offenses may have their felony sentences reduced to misdemeanors. (25) Even if the greater drug amount could later be established at sentencing, judges will not be able to impose a sentence above the statutory maximum for the offense of conviction. (26)

Moreover, by focusing only on Al and his hypothetical case, Professor Bibas appears to be afflicted with federal drug myopia. Apprendi is not limited to federal drug prosecutions. Forty percent of federal offenders are convicted of drug-related offenses; sixty percent are sentenced for other crimes. (27) Most federal crimes do not have a twenty-year maximum absent proof of aggravating facts. Many federal statutes increase a penalty from a misdemeanor to a three-, five-, or twenty-year felony based upon aggravating facts such as value of property, nature of the item possessed, mental state of the defendant, or injury to the victim. (28) Regardless of what the prosecutor attempts at sentencing, a federal defendant is much better off after Apprendi if he succeeds in challenging the aggravator. Equally dramatically, many federal statutes increase a relatively low sentence of three or five years, to higher sentences of ten years, twenty years, or even the death penalty, based upon aggravators such as injury or death to the victim, value of the bribe or item stolen, use of a weapon, effect on the soundness of a financial institution, vulnerability of the victim, or nature of the predicate act in a compound offense. (29) After Apprendi, federal defendants actually innocent of these aggravating elements are in a significantly better position; if they prevail at trial and are convicted of only the lesser offense, nothing the prosecutor does at sentencing can raise the sentence above the statutory maximum for that lesser offense. (30) Again, actual federal defendants convicted of non-drug related offenses have received...