CRUSHING THE SOUL OF FEDERAL PUBLIC DEFENDERS: THE PLEA BARGAINING MACHINE'S OPERATION AND WHAT TO DO ABOUT IT.

• Author: Goncalves, Walter I., Jr.

Introduction. 701 I. Lay of the Land 704 A. Explanations for the Decline of Jury Trials. 705 B. Plea Bargaining Machine's Impact on Federal Public Defenders and Their Clients 706 i. Today's Practice Versus Practice During Gideon v. Wainright. 706 ii. Trial Rate's Decline and Public Defender Offices 707 iii. Low Trial Rate's Impact on Assistant Federal Public Defenders 709 C. New Ways to Understand the Decline in Federal Trials 710 i. The Booker Decision, Charging Policy, and Trial Complexity and Expense. 710 1. The Booker Decision. 710 2. DOJ Charging Policy. 711 3. External Factors. 712 a. Improved Technology and Investigations. 712 II. Mandatory Minimums, Sentencing Guidelines, and Fast-Track Programs. 714 A. How the Plea Bargaining Machine Reduced Trial Rates. 714 i. Mandatory Minimums for Drug Offenses 714 ii. Federal Sentencing Guidelines 716 iii. Fast-Track Programs 720 B. How Mandatory Minimums, Sentencing Guidelines, and Fast-Track Programs Fuel the Plea Bargaining Machine in Arizona Drug Cases. 722 i. National Charging Policy and Impact of Defense Attorney Advice 722 ii. Drug Cases in Arizona 724 III. Stigmatizations of African Americans, Latinxs, and American Indians Helped Facilitate the Plea Bargaining Machine. 728 A. Exploitation of Racial Minorities and Resulting Stereotypes 729 i. African Americans. 729 ii. Latinxs. 730 iii. American Indians. 732 B. Plea Bargaining Machine's Racist Outcomes 734 i. Impact of Mandatory Minimums on Racial Minorities 734 ii. Race and the Sentencing Guidelines. 736 iii. Fast-Track Programs Disproportionately Affect Latinxs. 738 IV. Federal Public Defenders and the Plea Bargaining Machine 739 A. Brief History of the Federal Public Defender Program. 739 B. Differences Between Federal and Local Defender Systems 741 C. The Plea Bargaining Machine's Impact on Federal Public Defender Practice 744 i. Federal Defense Practice in Tucson Before the Sentencing Guidelines. 744 ii. Contemporary Federal Public Defender Practice in Tucson. 745 D. Federal Public Defenders and Fast-Track Cases at the U.S-Mexico Border. 748 V. What Can Be Done?. 751 A. Efforts to Eliminate Federal Mandatory Minimums 751 B. How to Battle the Plea Bargaining Machine 754 i. The Importance of Training. 754 ii. Areas for Training to Improve Pre-Trial Representation 755 1. Advising Clients on the Benefits of a Plea Offer. 755 2. Advising Clients to Go to Trial. 756 3. The Ability to Screen Cases for Trial 757 4. Disclosing Trial Experience to Clients 758 5. The Importance of Deep Work for Public Defenders 758 6. Speaking to the Media. 759 Conclusion. 760 INTRODUCTION

The federal criminal trial rate in the United States was 14% in 1990 and 5% in the year 2000. (1) In 2019, it was 2.4% (2) nationally and 0.7% in the District of Arizona, where this Author practices. (3) These numbers mean assistant federal public defenders (AFPDs) are not in trial yearly. I know recently retired AFPDs who tried only one or two cases during their last decade of work. (4) AFPDs in the 1970s and early 1980s tried approximately one case per month. (5) Before becoming an AFPD, I was fortunate to have averaged three trials per year from 2005 to 2015 as an assistant Pima County Public Defender. The trial rate back then, in that jurisdiction, was higher. (6)

The dearth of trials is problematic for defendants. (7) In a system with high-frequency plea bargaining, many realize they have little to no chance of fighting their case. (8) For the falsely accused, trials are a vehicle for vindication. (9) But with almost no trials, they have difficulty finding live proceedings to observe--fewer opportunities for understanding its mechanics. (10) In custody, defendants have a tough time talking to each other about trials because they rarely reject plea agreements." Because lawyers seldom try cases, they cannot give much information to clients about its dynamics. Although most jurors convict, trials provide more meaningful finality to defendants compared to trials where they plead guilty because the defense lawyer confronted incriminating evidence through cross examination and the jury made a final decision based on the evidence. (12)

For lawyers, trials hone litigations skills such as thinking on one's feet, assessing and giving opinions about plea offers, articulating an opinion strongly and persuasively, and maintaining a professional demeanor when disagreeing with opposing counsel or the judge. (13) Trying cases also gives young lawyers the confidence to walk away from an undesirable plea offer, skills to carefully read disclosure, produce successful ideas for motions, and realize, ahead of trial, which witnesses to call. (14) Trials are usually the last resort if one loses a motion to suppress evidence or dismiss charges, but low trial rates also mean lawyers are rarely in evidentiary hearings, where they hone cross-examination skills. (15) Trials are a break from the norm and supply something different from the routine of negotiating pleas, preparing for sentencing, meeting with clients, and researching the law. (16)

Federal public defender offices (FPDOs) with lawyers who try cases have better reputations and thus can attract higher-quality applicants. (17) A culture of complacency can overtake offices when lawyers go years without seeing a jury: mentors disappear, confidence fades away, and lawyers forget the Federal Rules of Evidence. (18) FPDOs with minuscule trial rates more easily fail to zealously represent the majority of clients because they foster a culture of pushing pleas. (19)

But how did the federal criminal justice system get to this point? And what are the implications for public defender practice? This Article examines three factors that helped create the plea bargaining machine: the United States Sentencing Guidelines, (20) mandatory minimum sentencing laws for drug cases, and fast-track programs. It explains the machine's real-life impact through AFPD work in the Tucson sector of the District of Arizona. Because people of color disproportionately make up the criminally accused, this Article argues that the exploitation of African Americans, Latinxs, and American Indians (21) helped facilitate plea bargaining hegemony. Because trials are rare, AFPDs spend most of their time advising clients to waive trial rights and on sentencing advocacy. (22) This has implications for FPDO morale, training, and recruiting. Although high plea rates may never go away, the Article supplies advice for FPDOs and AFPDs to maximize the number of cases that should go to trial and improve indigent representation.

The Article continues as follows: Part I reviews literature on the reasons for low trial rates, current federal public defense practice, and what happens when public defender offices force lawyers to go to trial. Part II surveys the history of mandatory minimums, sentencing guidelines, and fast-track programs and explains how each suppresses the trial rate in the District of Arizona through drug cases. Part III explains how the historical exploitation of African Americans, Latinxs, and American Indians relates to the racial disparity the plea bargaining machine created. Part IV delves into a brief history of FPDOs, contrasts federal to state practice, and explains how representation before the plea bargaining machine differs from practice today. Part V examines efforts to abolish mandatory minimums and how FPDOs can improve training and practice to get the most from the plea bargaining machine.

1. LAY OF THE LAND

   There is vast literature on low trial rates. (23) Scholars have found various causes responsible for the vanishing trial: mandatory minimums, sentencing guidelines, Department of Justice (DOJ) charging policy, the expense and complexity of trials, and improvements in technology. (24) But their work has failed to address how these factors negatively affect federal criminal defendants of color. While praising trials as desirable, scholars also pass over how training can lower plea rates and enhance client representation. (25) Although attorneys David Patton and Joseph Hall have described the plea bargaining machine's impact on federal indigent defense practice, they have failed to address the specific effects on drug and illegal entry prosecutions. (26)

   A. Explanations for the Decline of Jury Trials

   Professors Sheri Seidman Diamond and Jessica Salerno published the results of a national survey on civil and criminal jury trials. (27) The study found that lawyers perceived mandatory minimums, the bail system, and sentencing guidelines as the source of reduced criminal jury trials. (28) The vast majority of defense attorneys viewed mandatory minimums as having a medium or large effect on trial rate reduction. (29) Diamond and Salerno explain that an important reason for increasing plea rates after sentencing guideline implementation is downward departures for defendants who accept responsibility for the offense after pleading guilty. (30) Many characterize sentences without reductions for acceptance of responsibility after trial as the "trial penalty." (31) The National Association of Criminal Defense Lawyers (NACDL) published a report after two years of investigation into the trial penalty's causes and viable solutions. (32) It reached similar conclusions as Seidman Diamond's and Salerno's survey. The report found the causes for the decline in trial rates to include:

   (1) Mandatory minimum sentencing provisions that have reduced the trial rate from over 20% 30 years ago to 3% today. (33) Instead of mandatory minimums leading to harsher punishments on a select group of the most culpable defendants, the DOJ uses them to strong-arm guilty pleas and punish those who exercise their right to a jury trial. (34)

   (2) The sentencing guidelines, which supply excessively harsh sentencing ranges for plea bargaining when mandatory sentences do not. (35)

   (3) Federal judges, who are complicit in assuring low trial rates. (36) They...