Apprendi and Plea Bargaining

Article excerpt

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. …