Amicus Curiae Brief — Class v. United States, 137 S. Ct. 1065 (2017) (No. 16-424)

Bapreme Cour, US.

+ AND MAY 19 2017

BRIEFS OFFICE OF THE CLERK

No. 16-424

IN THE

Supreme Court of the United States

RODNEY CLASS,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Writ of Castioveri

to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF ALBERT W. ALSCHULER AS

AMICUS CURIAE IN SUPPORT OF

PETITIONER

MATTHEW J. SILVEIRA ALBERT W. ALSCHULER

JONES Day Counsel of Record

555 California St. 220 Tuttle Road

26th Floor Cumberland, ME 04021

San Francisco, CA 94104 (207) 829-3963

a-alschuler@law. northwestern.edu

STEPHEN J. PETRANY

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

Counsel for Amicus Curiae

INTEREST OF THE AMICUS CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

I.

II.

Il.

i

TABLE OF CONTENTS

Menna and Blackledge Support

Class’s Right to Challenge the

Constitutionality of the Statute

he Was Convicted of Violating,

and His Claim is in Fact Stronger

than the Claims Upheld in Those

This Court’s Habeas Corpus

Decisions Have Afforded Special

Protection to the Right Not to Be

Convicted Under an

Unconstitutional Statute................

This Court Should Not Preclude

Defendants Who Plead Guilty

from Obtaining Greater

Protection of the Right to

Challenge Unconstitutional

Statutes Than the Petitioner

Seeks Im Tis Case..........0c0.<c.......:.

A. Post-Plea Challenges to

the Constitutionality of a

Defendant’s Statute of

Conviction Before Brady ......

B. The Enhanced Power of

Ss

LR eee eee eee eee eee eee eee eee eee eee eee eee ee ee ee

TABLE OF CONTENTS

(continued)

Page

C. Boilerplate Waivers.................. 19

i crecesheiiadiaouienaiceaninaiantedl 23

ii

ill

TABLE OF AUTHORITIES

Page(s)

CASES

Bailey v. United States,

fT cae eR 11

Blackledge v. Perry,

ol Sided celiainiiin 1, 4

Bousley v. United States,

3s S| eee 2.334, 32

Brady v. Maryland,

on iamhdaaniiatades 20

Brady v. United States,

og TESTER Re ee DOM EMITS 13

Brecht v. Abrahamson,

8S ER SN Emenee ne cea ee 13

Bushell’s Case,

124 Eng. Rep. 1006 (C.P. 1670)................0-cssese-eeee 8

Commonwealth v. Hinds,

I a nelanslaiogoniianel 14

Ex parte Bigelow,

I slaeacenenniadesete g

Ex Parte Parks,

RATE IE eat eae DREN Ree we E I 9

Ex Parte Siebold,

Le Lecce 2, 7, 8, 23

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

Ex parte Yarbrough,

ilies ieceinll ocepenemneeiiids 9

Gideon v. Wainwright,

EE Ee a ee ea ee Ree 10

Hayes v. United States,

Sr ss ceccinepnepdanminneniiienpaavanegial 15

In re Moran,

I aaa ails 9

Lafler v. Cooper,

EEE ca aE epee ere aes 18

Loving v. Virginia,

i tei caseshsmboseninosociannts 11, 14, 15

Menna v. New York,

SSR RA MeN er cnr e Te 1,4

Miller v. Alabama,

| aap Tees 9

Missouri v. Frye,

I tele ipionebeiiiiies 18

Montgomery v. Louisiana,

, 9 &, EES neeee teres 9,10

Norwood v. State,

TI i iintcsmtinniiadvedenindimhesntaninnes 14

Schriro v. Summerlin,

aati fukn indian 11

Vv

TABLE OF AUTHORITIES

(continued)

Page(s)

Teague v. Lane,

489 U.S. 288 (1989)..................0000..00000 2, 10, 11, 23

United States v. Curcio,

712 F.2G 1568S BE Cir. 1963) ...0.cccccossccccessccecccssesese 5

United States v. Ruiz,

Ean ee .-. 19, 20

United States v. Washington,

301 F. Supp. 2d 1306 (M.D. Ala.

IT iia ate alates ceeded bbclinininbadinatiateunanansiarivisiti 16

OTHER AUTHORITIES

Adam Liptak, Justices’ Ruling Expands

Rights of Accused in Plea Bargains,

ee, en , sischavessontoncned 21

Albert W. Alschuler, A Nearly Perfect

System for Convicting the Innocent,

79 Albany L. Rev. 919 (2016)..................cccceeeseeeee 19

Albert W. Alschuler, Lafler and Frye:

Two Small Band-Aids for a

Festering Wound, 51 Dua. L. Rev.

le IE ARES A ee es 23

Albert W. Alschuler, The Prosecutor’s

Role in Plea Bargaining, 36 U. Chi.

LASERS ZS Re oe OE STENTS 1

v1

TABLE OF AUTHORITIES

(continued)

Albert W. Alschuler, The Selling of the

Sentencing Guidelines, in The U.S.

Sentencing Guidelines: Implications

for Criminal Justice 49

(Dean Champion ed., 1989) .................24..

Bill Otis, Comment on One Notable

Case Showing Impact of and Import

of Lafler and Frye, Sent’g L. & Pol’y

BE GU, By BT acesccsasccoccnesansbensesasasees

Bryan Brown, The Right to Love: Fifty

Years Ago, in Loving v. Virginia, the

Supreme Court Made Mixed-Race

Marriages Legal Across the U.S.,

New York Times Upfront

I aes SII eich cicitesnsostensensedenladisdenatnbiterak tides

Federal Bureau of Prisons, Historical

ee

Federal Bureau of Prisons, Statistics...........

Si a ie

J. Vincent Aprile Il, Waiving the

Integrity of the Criminal Justice

System, Crim. Just., Winter 2010...........

Page(s)

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Mark Galanter, The Vanishing Trial:

An Examination of Trials and

Related Matters in Federal and State

Courts, 1 J. Empirical Legal Stud.

Mark L. Miller, Sentencing Equality

Pathology, 54 Emory L.J. 271(2005) ................... 18

Memorandum from Deputy Attorney

General James M. Cole: Department

Policy on Waivers of Claims of

Ineffective Assistance of Counsel

Il ecnsunsnonnnninennsen 22

Nancy J. King, Plea Bargains that

Waive Claims of Ineffective

Assistance: Waiving Padilla and

Frye, 51 Dug. L. Rev. 647 (2013)......................... 22

Nancy J. King & Michael E. O'Neill,

Appeal Waivers and the Future of

Sentencing Policy, 55 Duke L.J. 209

Paul M. Bator, Finality in Criminal

Law and Federal Habeas Corpus for

State Prisoners, 76 Harv. L. Rev. 441

vill

TABLE OF AUTHORITIES

(continued)

Peter Westin, Away From Waiver: A

Rationale for the Forfeiture of

Constitutional Rights in Criminal

Procedure, 75 Mich. L. Rev. 1214

R. Michael Cassidy, Some Reflections on

Ethics and Plea Bargaining: An

Essay in Honor of Fred Zacharias,

48 San Diego L. Rev. 93 (2011)................

Robert K. Calhoun, Waiver of the Right

to Appeal, 23 Hastings Const. L.Q.

El a a te cae

Roy Walmsley, World Prison Population

Fe gee

Stephanos Bibas, Taming Negotiated

Justice, 122 Yale L.J. Online 35

Sea inialiciennnicsnearsincenicdiniateennissiaininsioninennenees

Susan R. Klein et al., Waiving the

Criminal Justice System: An

Empirical and Constitutional

Analysis, 52 Am. Crim. L. Rev. 73

Page(s)

ix

TABLE OF AUTHORITIES

(continued)

Thomas W. Merrill, Dolan v. City of

Tigard: Constitutional Rights as

Public Goods, 72 Denv. U. L. Rev.

I icisriasisninctshthaiieticenppiaieitisinadnasaineeones

U.S. Department of Justice, Bureau of

Justice Statistics, Correctional

Populations in the U.S. 2015 (2016)........

U.S. Sentencing Comm'n, Fifteen Years

of Guidelines Sentencing 90 (2004) .........

United States Attorneys’ Statistical

Report Fiscal Year 2015 ...........0000.....0000..

Wikimedia Commons, File: U.S.

Incarceration Rates 1925

Page(s)

INTEREST OF THE AMICUS CURIAE

I am a member of the Illinois Bar and the Julius

Kreeger Professor of Criminal Law and Criminology

Emeritus at the University of Chicago Law School. I

wrote my first article on guilty pleas and plea

bargaining nearly fifty years ago, see The

Prosecutor’s Role in Plea Bargaining, 36 U. Chi. L.

Rev. 50 (1968), and I have published more than 700

law review pages on that subject. My interest in this

case is simply that of a friend of this Court.’

SUMMARY OF ARGUMENT

Menna v. New York, 423 U.S. 61 (1975), and

Blackledge v. Perry, 417 U.S. 21 (1974), support

Petitioner Rodney Class’s right to challenge on

appeal the constitutionality of the statute he was

convicted of violating. Class’s claim, like those

presented in Menna and Blackledge, would, if

successful, forever preclude the state from obtaining

a valid conviction against him. This claim should

survive his guilty plea.

1. In fact, Class’s claim should more clearly

survive his plea than those of the petitioners in

Menna and Blackledge. Unlike the petitioners in

those cases, a defendant who establishes the

unconstitutionality of his statute of conviction is

1 Pursuant to Supreme Court Rule 37.6, I declare that no

counsel for a party authored this brief in whole or in part. My

co-counsel and I are the only people who have made monetary

contributions to .he preparation and submission of this brief. In

accordance with Rule 37.3(a), all parties consented to the filing

of this brief. Petitioner provided blanket consent for all amicus

briefs. A copy of Respondent’s written consent was provided to

the clerk upon filing.

2

innocent of any crime. Moreover, this defendant

vindicates not only his own right to engage in

constitutionally protected conduct but also the rights

of others, many of whom might lack the resources,

the legal standing, and the courage necessary to

protect these rights themselves. A defendant’s

successful challenge to the statute he is alleged to

have violated advances public interests as well as his

own.

2. In habeas corpus proceedings, this Court has

long afforded special protection to the right to

challenge an unconstitutional statute. Even at a time

when habeas petitioners were barred from

presenting almost all other constitutional claims,

this Court considered claims that petitioners had

been convicted of violating unconstitutional statutes.

Ex Parte Siebold, 100 U.S. 371 (1879). And when this

Court denied full retroactivity to most decisions

affording new constitutional protections to criminal

defendants, it made an exception for decisions

declaring “certain kinds of primary, private

individual conduct beyond the power of the criminal

law-making authority to proscribe”—in other words,

to decisions declaring substantive criminal statutes

invalid. Teague v. Lane, 489 U.S. 288, 307 (1989).

Even a post-conviction petitioner who has pleaded

guilty without questioning the criminality of his

conduct may now obtain the benefit of a subsequent

ruling that his conduct was lawful. Bousley v. United

States, 523 U.S. 614 (1998). The Court should afford

no less protection to the right to challenge the

constitutionality of a statute on direct appeal than it

provides in post-conviction proceedings.

3

3. The final section of this brief asks the Court not

to preclude the possibility of affording greater

protection to the right to challenge an allegedly

unconstitutional statute than Class seeks here. Since

this Court upheld the constitutionality of plea

bargaining in 1970, this practice has become more

troublesome. Increased sentences reflect both the

efforts of prosecutors to gain plea bargaining

leverage and the willingness of legislatures to supply

it. Trials have become close to nonexistent.

Boilerplate waivers that were almost unheard of in

1970 are now commonplace.

Prosecutors might respond to a_ decision

recognizing Class’s right to challenge’ the

constitutionality of his statute of conviction by

generating more boilerplate. Because Class’s plea

agreement neither expressly preserved nor expressly

waived his right to challenge on appeal the

constitutionality of his statute of conviction, his brief

characterizes the issue in this case as what the

contractual default rule should be. Brief for Pet. at 1,

2, 17, 19, 20, 21, 22, 35, 38, 44. Although this

statement of the issue is accurate, it might convey

the impression that added contractual language

could make the right to challenge unconstitutional

statutes disappear. The Court should avoid

conveying this impression. It should make clear that

the effectiveness of boilerplate waivers remains

unresolved, as do other substantial issues.

4

ARGUMENT

I. MENNA AND BLACKLEDGE SUPPORT

PETITIONER’S RIGHT TO CHALLENGE THE

CONSTITUTIONALITY OF THE STATUTE HE WAS

CONVICTED OF VIOLATING, AND HIS CLAIM IS IN

FACT STRONGER THAN THE CLAIMS UPHELD IN

THOSE CASES.

In Menna v. New York, 423 U.S. 61 (1975), and

Blackledge v. Perry, 417 U.S. 21 (1974), this Court

held that a guilty plea does not bar a defendant from

arguing on appeal or in post-conviction proceedings

that he was convicted in violation of the Double

Jeopardy Clause or that he was prosecuted in

retaliation for exercising a procedural right. In this

case, Class maintains that his guilty plea should not

bar him from challenging on appeal _ the

constitutionality of his statute of conviction. Class’s

brief shows that, under the standard established by

Blackledge and Menna, his claim should survive his

plea. Demonstrating the statute’s unconstitutionality

would block his prosecution in the same way that a

successful claim of double jeopardy or vindictive

prosecution would.

Following the decisions in Blackledge and Menna,

Professor Westin offered the following formula as the

best way to reconcile these rulings with earlier

decisions that guilty pleas forfeit most claims of

antecedent constitutional violations:

[A] defendant who has been convicted on a plea

of guilty may challenge his conviction on any

ground that, if asserted before trial, would

forever preclude the state from obtaining a valid

conviction against him, regardless of how much

5

the state might endeavor to correct the defect.

In other words, a plea of guilty may operate as a

forfeiture of all defenses except those that, once

raised, cannot be “cured.”

Peter Westin, Away From Waiver: A Rationale for the

Forfeiture of Constitutional Rights in Criminal

Procedure, 75 Mich. L. Rev. 1214, 1226 (1977); see

United States v. Curcio, 712 F.2d 1532, 1538 (2d Cir.

1983) (Friendly, J.) (declaring that Westin’s

“valuable commentary” has distilled the guiding

principles of the Supreme Court’s. decisions

concerning guilty-plee forfeiture).

Certainly the fact that a defendant’s conduct was

not a crime should “forever preclude the state from

obtaining a valid conviction against him, regardless

of how much the state might endeavor to correct the

defect,” and Class maintains that the statute he has

been convicted of violating created no crime. His

claim of innocence only makes his case stronger than

those of the petitioners in Menna and Blackledge

themselves.

Punishing someone for engaging in noncrimina]

behavior is obviously a grave injustice. Moreover, the

public has an especially strong interest in preventing

this injustice. Its resources are misspent when the

government imprisons people for doing what the

Constitution allows them to do. Beyond that, a

litigant who establishes the unconstitutionality of a

criminal statute vindicates the right of others to

engage in behavior like his. When a statute makes

this behavior a crime, it may not only chill but freeze

the exercise of a constitutional right. Fearing

punishment, people are likely to forego exercise of

this right. Few may have the courage, the resources,

6

and the legal standing needed to challenge an

unconstitutional crirninal statute.

Professor Merrill notes that “some constitutional

rights are not just private entitlements but also have

aspects of public goods. In other words, the exercise

of the right not only produces a private benefit for

the rights-holder, but also generates positive

externalities that benefit third parties or society

more generally.” Thomas W. Merrill, Dolan v. City of

Tigard: Constitutional Rights as Public Goods, 72

Denv. U. L. Rev. 859, 862 (1995). Merrill uses

economic language to explain why courts should be

reluctant to find forfeitures of these rights and

sometimes should refuse to enforce waivers that

have been purchased by granting government

benefits: “[I]ndividual valuation of the right will fail

to take into account the positive externalities

generated by exercise of the right, and thus routine

enforcement of . . . waivers—especially on a mass

scale . . could result in a suboptimal! supply of

these external benefits.” Jd.

When a dcfendant is punished for violating an

unconstitutional statute, the injustice to the

defendant himself runs deep, and the public interest

in correcting this injustice runs deep too. The right

that Class asserts merits protection at least as much

as the rights vindicated in Menna and Blackledge. As

the following section of this brief will show, this

Court has long afforded distinctive protection to this

right.

7

Il. THis CouRT’S HABEAS CORPUS DECISIONS

HAVE AFFORDED SPECIAL PROTECTION TO THE

RIGHT NoT TO BE CONVICTED UNDER AN

UNCONSTITUTIONAL STATUTE.

In 1879, in Ex Parte Siebold, 100 U.S. 371 (1879),

five prisoners convicted of violating a federal statute

sought a writ of habeas corpus from this Court. They

alleged that Congress had exceeded its power by

enacting the statute they were convicted of violating.

At the time, the Court adhered to “the black-letter

principle of the common law that the writ was simply

not available at all to one convicted of crime by a

court of competent jurisdiction.” Paul M. Bator,

Finality in Criminal Law and Federal Habeas

Corpus for State Prisoners, 76 Harv. L. Rev. 441, 466

(1963) (citing Ex Parte Watkins, 28 U.S. (3 Pet.) 193

(1830)).

The Siebold Court reiterated this rule:

(The writ of habeas corpus] cannot be used as a

mere writ of error. Mere error in the judgment

or proceedings, under and by virtue of which a

party is imprisoned, constitutes no ground for

the issue of the writ. Hence, upon a return...

that the prisoner is detained under a conviction

and sentence by a court having jurisdiction of

the cause, the general rule is, that he will be

instantly remanded. . . . The only ground on

which this court, or any court, without some

special statute authorizing it, will give relief on

habeas corpus to a prisoner under conviction

and sentence of another court is the want of

jurisdiction in such court over the person or the

cause, or some other matter rendering its

proceedings void.

100 U.S. at 375.

The Court nevertheless resolved on the merits the

petitioners’ claim that they had been convicted of

violating an invalid statute. It cited Bushe/l’s Case,

124 Eng. Rep. 1006 (C.P. 1670), noting that “[t]he

opinion of Chief Justice Vaughan in the case has

rarely been excelled for judicial eloquence.” Siebold,

100 U.S. at 376. In Bushell’s Case. the Court of

Common Pleas granted habeas corpus relief to a

juror who had defied a judge’s instructions by voting

to acquit William Penn of participating in an

unlawful assembly. The case established that courts

have no authority to hold jurors in contempt for

violating judicial instructions.

Siebold found a similar lack of authority when a

defendant was prosecuted for violating an

unconstitutional statute:

The validity of the judgments is assailed on the

ground that the acts of Congress under which

the indictments were found are unconstitutional.

If this position is well taken, it affects the

foundation of the whole proceedings. An

unconstitutional law is void, and is as no law.

An offence created by it is not a crime. A

conviction under it is not merely erroneous, but

is illegal and void, and cannot be a legal cause of

imprisonment. . . . [P]Jersonal liberty is of so

great moment in the eye of the law that the

judgment of an inferior court affecting it is not

deemed so conclusive but that . . . the question

of the court’s authority to try and imprison the

party may be reviewed on habeas corpus... .

[Ijf the laws are unconstitutional and void. the

Circuit Court acquired no jurisdiction of the

9

causes. Its amthority to indict and try the

petitioners arose solely upon these laws.

100 U.S. at 376-77. See also Ex parte Yarbrough, 110

U.S. 651, 654 (1884) (“If the law which defines the

offense and prescribes its punishment is void, the

court was without jurisdiction, and the prisoners

must be discharged.”).

This Court still quotes Siebold with reverence. See

Montgomery v. Louisiana, 136 S. Ct. 718, 730-31

(2016) (quoting Siebold while distinguishing

procedural errors from the violation of “categorical

constitutional guarantees that place certain criminal

laws and punishments altogether beyond the State’s

power to impose”).? Even at a time when this Court

refused to consider claims on habeas corpus that an

indictment did not state an offense, Ex Parte Parks,

93 U.S. 18 (1876), that a defendant had been placed

twice in jeopardy for the same offense, Ex parte

Bigelow, 113 U.S. 328 (1885), or that a defendant

had been compelled to incriminate himself, Jn re

Moran, 203 U.S. 105 (1906), it recognized an

obligation to afford relief to a defendant convicted

under an unconstitutional statute. Siebold shows the

distinctive character of the right asserted in this case.

2 Montgomery held that state courts must give retroactive

effect to Miller v. Alabama, 567 U.S. 460 (2012), which held

mandatory sentences of life without parole for juveniles

unconstitutional. Montgomery declared that “a court has no

authority to leave in place a conviction or sentence that violates

a substantive rule” and that “no grandfather clause . . . permits

States to enforce punishments the Constitution forbids.” 136 S.

Ct. at 731.

10

More than a century after Siebold, this Court

again gave this right special protection—protection it

did not afford to other rights, including those

vindicated in Blackledge and Menna. In Teague uv.

Lane, 489 U.S. 288 (1989), the Court adopted the

position Justice Harlan previously had taken on the

retroactivity of rulings announcing new

constitutional rules of criminal procedure. The Court

declared that newly announced procedural rules

must be applied to all untried cases and all cases on

trial or direct review when the rules are announced

but that, with two exceptions, these rules do not

entitle prisoners whose convictions were final at the

time they were announced to habeas corpus relief.

The second of the Court’s two exceptions allowed a

habeas petitioner to claim the benefit of a watershed

rule of criminal procedure implicating the

fundamental fairness and accuracy of criminal

proceedings. Teague, 489 U.S. at 309-15. This

exception afforded full retroactivity to decisions like

Gideon v. Wainwright, 372 U.S. 335 (1963), which

held that the Fourteenth Amendment’s Due Process

Clause entitles indigent defendants in state courts to

the assistance of appointed counsel. This Court has

not applied the second Teague exception to any post-

Teague ruling.*

The first Teague exception has been much more

influential. See, e.g., Montgomery v. Louisiana, supra,

at 728-31. This exception was drawn verbatim from

> Teague recognized that future decisions were unlikely to

trigger this exception. Sec Teague, 1489 U.S. at 313 (declaring it

“unlikely that many such components of basic due process have

yet to emerge”).

11

Justice Harlan, and it allowed a habeas petitioner to

claim the benefit of a new rule that places “certain

kinds of primary, private individual conduct beyond

the power of the criminal law-making authority to

proscribe.” Teague, 489 U.S. at 307 (quoting Mackey

v. United States, 401 U.S. 667, 692 (1971) (Harlan, J.,

concurring in part and dissenting in part)). This

exception afforded full retroactivity to decisions like

Loving v. Virginia, 388 U.S. 1 (1967), which

recognized the constitutional right of people of

different races to marry. In this case, Class

maintains that that the Second Amendment places

his primary conduct beyond the power of the

criminal law-making authority to proscribe.

This Court effectively expanded the first Teague

exception when it held Teague’s limitation of the

habeas remedy inapplicable to new rules of

substantive criminal law. See Schriro v. Summerlin,

542 U.S. 348, 351-52 (2004). The Court now affords

full retroactivity not only to decisions declaring

defendants’ conduct beyond the power of Congress to

proscribe but also to decisions declaring that

Congress has not in fact proscribed their conduct.

Bousley v. United States, 523 U.S. 614 (1998),

illustrates the breadth of the current doctrine. After

a post-conviction petitioner pleaded guilty to using a

firearm during a drug transaction, this Court held in

Bailey v. United States, 516 U.S. 137 (1995), that

“use” required active employment of the firearm. The

petitioner asserted that his use was not active, and

this Court held that establishing his claim would

entitle him to post-conviction relief.

Bousley held Bailey fully retroactive because

“decisions of this Court holding that a substantive

12

federal criminal statute does not reach certain

conduct... necessarily carry a significant risk that a

defendant stands convicted of ‘an act that the law

does not make criminal.” Bousley, 523 U.S. at 620

(quoting Davis v. United States, 417 U.S. 333, 334

(1974)). Although the petitioner had not argued

before trial, at trial, or on appeal that “use” meant

active use and although he in fact had pleaded guilty,

his default would be excused if he could show that

the error in his case had “probably resulted in the

conviction of one who is actually innocent.” Jd. at 623.

Chief Justice Rehnquist wrote for the Court, “[O]ne

of the principal functions of habeas corpus [is] ‘to

assure that no man has been incarcerated under a

procedure which creates an impermissibly large risk

that the innocent will be convicted.” Jd. at 620.

Although both the petitioner in Bousley and Class

entered guilty pleas and although both maintained

that their conduct was not criminal, Class’s case is

stronger than that of the petitioner in Bousley in

several respects. First, unlike the petitioner in

Bousley, Class contends not only that he is innocent

but also that his conduct was constitutionally

protected—that this conduct was beyond Congress’s

power to proscribe. Second, unlike the petitioner in

Bousley, Class did not default his claim but instead

litigated it fully in the district court prior to his

guilty plea. Third, unlike the petitioner in Bousley,

Class can establish his claim without any expansion

of the record. And fourth, unlike the petitioner in

Bousley, Class asserts his claim on appeal rather

than in a post-conviction proceeding. Post-conviction

relief is limited to “persons whom society has

grievously wronged,” and “an error that may justify

13

reversal on direct appeal will not necessarily support

a collateral attack on a final judgment.” Brecht v.

Abrahamson, 507 U.S. 619, 634 (1993).

This Court’s special treatment of claims on habeas

corpus that a prisoner has been convicted under an

unconstitutional statute (and, more recently, of

claims that a statute has been held not to reach his

conduct) indicates why Class’s guilty plea should not

bar his appeal in this case.

IIl.THis CourRT SHOULD NOT # £PRECLUDE

DEFENDANTS WHO PLEAD GUILTY FROM

OBTAINING GREATER PROTECTION OF THE

RIGHT TO CHALLENGE UNCONSTITUTIONAL

STATUTES THAN PETITIONER SEEKS IN THIS

CASE.

In 1970, in Brady v. United States, 397 U.S. 742

(1970), this Court upheld the constitutionality of plea

bargaining. It declared, “[W]e cannot hold that it is

unconstitutional for the State to extend a benefit to a

defendant who in turn extends a substantial benefit

to the State and who demonstrates by his plea that

he is ready and willing to admit his crime and to

enter the correctional system in a frame of mind that

affords hope for success in rehabilitation over a

shorter period of time than might otherwise be

necessary.” 397 U.S. at 753. Since 1970, however, the

plea bargaining process has grown more troublesome.

A. Post-Plea Challenges to the

Constitutionality of a Defendant’s

Statute of Conviction Before Brady

This case itself provides a minor indication of how

much things have changed. In an earlier era,

prosecutors and courts apparently did not imagine

14

that a guilty plea would have the effect the

government now proposes to give it.

The Supreme Judicial Court of Massachusetts

anticipated the Menna standard more than a century

before Menna and explained why this standard

permitted challenges like Class’s: “The plea of guilty

is, of course, a confession of all the facts charged in

the indictment... . It is a waiver also of all merely

technical and formal objections .. . . But if the facts

alleged and admitted do not constitute a crime

against the laws of the Commonwealth, the

defendant is entitled to be discharged.”

Commonwealth v. Hinds, 101 Mass. 209, 210 (1869).

In 1924, a defendant who pleaded guilty appealed

his conviction to the Mississippi Supreme Court.

Although the defendant did not contend that the

statute of his conviction was unconstitutional, the

court noticed this statute’s unconstitutionality sua

sponte and reversed his conviction. Norwood v. State,

101 So. 366 (Miss. 1924).

Three years before Brady, in Loving v. Virginia,

388 U.S. 1 (1967), this Court reviewed the

convictions of a married couple who had struck a

bargain and entered guilty pleas to violating two

Virginia anti-miscegenation statutes. See id. at 3-4

(describing the defendants’ pleas); Bryan Brown, The

Right to Love: Fifty Years Ago, in Loving v. Virginia,

the Supreme Court Made Mixed-Race Marriages

Legal Across the U.S., New York Times Upfront (Jan.

9, 2017), http://upfront.scholastic.com/issues/

01_09_17/the-right-to-love/ (describing the bargain).

This Court did not question the defendants’ right to

have their guilty pleas set aside and their convictions

vacated if the statutes were unconstitutional, and

15

neither did the Commonwealth of Virginia. Its brief

defended the statutes without any suggestion that

the defendants’ pleas had “inherently” waived a

“nonjurisdictional” error—namely, their conviction of

actions that, far from being a crime, were

constitutionally protected. Brief of Appellee-

Respondent, Loving v. Virginia, 388 U.S. 1 (1967)

(OT 1966 No. 395), 1967 WL 93641. Perhaps it was

unthinkable even to the Virginia prosecutors that

the state would continue to punish Richard and

Mildred Loving if they had done only what the

Constitution allowed them to do. If the vosition the

government urges in the present case had been the

law, however, this Court could not have made its

landmark decision in Loving.

A year after Loving, this Court again reviewed

and accepted an appellant’s contention that he had

pleaded guilty to violating an unconstitutional

statute—a gun-registration statute that required

him to incriminate himself. Justice Harlan’s opinion

for the Court addressed the issue posed by the

present case in a one-sentence footnote: “Petitioner’s

plea of guilty did not, of course, waive his previous

claim of constitutional privilege.” Hayes v. United

States, 390 U.S. 85, 87 n.2 (1968).

B. The Enhanced Power of Prosecutors

The years since Brady have seen harsher

sentences, a sharp increase in the number of guilty

pleas, the near disappearance of trials, and the

explosion of prison populations. In 1970, fewer than

200,000 inmates were confined in state and federal

prisons. The rate of incarceration (the number of

inmates per 100,000 people) was 96. Today the

number of inmates confined in state and federal

16

prisons exceeds 1.5 million (a greater than seven-fold

increase since 1970), and the incarceration rate is

471 (a five-fold increase). Wikimedia Commons, File:

U.S. Incarceration Rates 1925 Onwards.png,

https://commons.wikimedia.org/wiki/File:U.S._incarc

eration_rates_1925 onwards.png (last visited May

14, 2017).*

The federal prison population has grown from

approximately 24,000 in 1970, Federal Bureau of

Prisons, Historical Information,

https://www.bop.gov/about/history/, to 189,000 today

(a slightly less than eight-fold increase). Federal

Bureau of Prisons, Statistics,

https://www.bop.gov/about/statistics/population_stati

stics.jsp (last visited May 14, 2017) (reporting the

total number of inmates on May 4, 2017).

Among the causes of the growth of the federal

prison population are mandatory minimum

sentences that, in practice, are mandatory only for

defendants convicted at trial. Compare United States

v. Washington, 301 F. Supp. 2d 1306 (M.D. Ala. 2004)

(bemoaning a judge’s duty to impose a “draconian”

forty-year sentence mandated by 18 U.S.C. § 924),

with U.S. Sentencing Comm'n, Fifteen Years of

Guidelines Sentencing 90 (2004) (reporting that,

after the exercise of prosecutorial discretion in

* These figures do not include local jail inmates. With jail

inmates included, the total number of people imprisoned in

America becomes .1 million, and the incarceration rate

becomes 670. U.S. Department of Justice, Bureau of Justice

Statistics, Correctional Populations in the U.S. 2015 at 2 Table

1 & 4 Table 4 (2016), https://www.bjs.gov/

content/pub/pdf/cpus15.pdf.

17

charging and plea bargaining, only 20% of the

defendants whose offenses qualified for the

supposedly mandatory sentences prescribed by § 924

in fact received them). Both mandatory minimum

sentences and formerly mandatory sentencing

guidelines contributed to a doubling of the amount of

time a convicted federal offender could expect to

serve. Id. at 46.5

When the Federal Sentencing Guidelines were

new, I wrote that, although they were likely to

increase the bargaining power of prosecutors,

“{gjuilty plea rates are currently so high that even

substantial increases in prosecutorial bargaining

power cannot yield great increases in these rates.”

Albert W. Alschuler, The Selling of the Sentencing

Guidelines, in The U.S. Sentencing Guidelines:

Implications for Criminal Justice 49, 91 n.4 (Dean

Champion ed., 1989). But I was wrong. Guilty pleas,

which accounted for 87% of federal district court

convictions in the years before the Guidelines, see

U.S. Sentencing Comm’n, supra, at 30, account for 97%

today. See United States Attorneys’ Statistical

Report Fiscal Year 2015, Table 2A,

https://www.justice.gov/usao/file/831856/download.

As criminal caseloads and criminal dispositions have

grown, the absolute number of criminal trials in the

® Harsher prison sentences are not the only reason for the

growth of the federal prison population. Even in periods of

falling crime rates, both federal criminal caseloads and the

proportion of convicted offenders sentenced to prison have

increased. U.S. Sentencing Comm’n, supra, at vi, 76. It seems

likely that, by reducing the cost of imposing criminal

punishment, plea bargaining has given America more of it.

18

federal district courts has declined—from 5,097 in

1962, to 3,574 in 2002, to 2,220 in 2015. Mark

Galanter, The Vanishing Trial: An Examination of

Trials and Related Matters in Federal and State

Courts, 1 J. Empirical Legal Stud. 459, 493 (2004)

(providing the figures for 1962 and 2002); United

States Attorneys’ Statistical Report, supra, at Table

2A (providing the figure for 2015). Professor Miller

remarks that the Guidelines have “achieved the

virtual elimination of criminal trials in the federal

system.” Mark L. Miller, Sentencing Equality

Pathology, 54 Emory L.J. 271, 277 (2005).

In Missouri v. Frye, 566 U.S. 134 (2012), this

Court noted, “[Defendants] who do take their case to

trial and lose receive longer sentences than even

Congress or the prosecutor might think appropriate,

because the longer sentences exist on the books

largely for bargaining purposes.” Jd. at 144 (quoting

Rachel E. Barkow, Separation of Powers and the

Criminal Law, 58 Stan. L. Rev. 989, 1034 (2006)).

The Court added in Lafler v. Cooper, 566 U.S. 156

(2012), “The expected posttrial sentence is imposed

in only a few percent of cases. It is like the sticker

price for cars: only an ignorant, ill-advised consumer

would view the full price as the norm and anything

less a bargain.” Jd. at 168 (quoting Stephanos Bibas,

Regulating the Plea-Bargaining Market: From

Caveat Emptor to Consumer Protection, 99 Calif. L.

Rev. 1117, 1138 (2011)).

The Court’s observations describe not just

particular cases, but the American criminal justice

system generally. It is doubtful that any polity would

sentence 95 percent of all offenders to less than they

deserve or to less than is necessary to protect the

19

public. Officials seem far more likely to impose “extra”

punishment on a small minority of offenders to

discourage exercise of the right to trial. The United

States now imprisons a higher proportion of its

population than any other nation in the world except

the Republic of Seychelles. Roy Walmsley, World

Prison Population List 2 (11th ed. 2015),

http://www.prisonstudies.org/sites/default/files/resou

rces/downloads/world_prison_population_list_11th_e

dition_O.pdf. It could not have achieved its record for

mass incarceration by sentencing 95 percent of all

offenders to less than they deserve.®

C. Boilerplate Waivers

If this Court rules in Class’s favor, prosecutors are

likely to add language to plea agreements in an effort

to preclude challenges like his. This Court’s decisions

do not indicate whether their efforts would be

effective. The Court’s only examination of due

process limits on plea-bargained waivers came in

6 ] have commented:

An agreement produced by an improper threat (“your

money or your life”) is involuntary, and a threat to

impose “extra” punishment for standing trial is surely

wrongful. The Constitution affords a right to trial,

which means at a minimum that the government may

not make standing trial a crime. .. . [The Supreme

Court’s empirical observations in Lafler and Frye]

decimate the “voluntariness,” “personal autonomy,”

“libertarian,” or “freedom of contract” defense of plea

bargaining.

Albert W. Alschuler, A Nearly Perfect System for Convicting the

Innocent, 79 Albany L. Rev. 919, 923-25 (2016).

20

United States v. Ruiz, 536 U.S. 622 (2002). Ruiz held

that the government may condition a plea agreement

upon a waiver of the right to receive impeachment

information from the government, but it left open

whether the Constitution bars the government from

insisting upon a waiver of the right to receive other

Brady material or a waiver of other rights. See id. at

629; Brady v. Maryland, 373 U.S. 93 (1963).

Prosecutors have used their power not only to

increase the number of guilty pleas but also to

transform guilty pleas into broader waivers of rights.

Agreements foreclosing the right to appeal were rare

when Brady was decided. See Robert K. Calhoun,

Waiver of the Right to Appeal, 23 Hastings Const.

L.Q. 127, 128-29 (1995) (declaring that appeal

waivers “emerged” “in recent years” and citing

decisions in 1982 and 1986 that called these waivers

“uncommon” and “not a widespread practice”). But

the Federal Rules of Criminal Procedure now

recognize these waivers, see Fed. R. Crim. P. 11

(b)(1)(N) (requiring courts to determine that a

defendant understands “the terms of any plea-

agreement provision waiving the right to appeal or to

collaterally attack the sentence”), and “[iJn nearly

two-thirds of the cases settled by plea agreement in

[a federal court] sample, the defendant waived his

right to review.” Nancy J. King & Michael E. O’Neill,

Appeal Waivers and the Future of Sentencing Policy,

55 Duke L.J. 209, 212 (2005).

Other broad waivers remain controversial. In

Lafler, supra, and Frye, supra, this Court held that

defendants are denied the effective assistance of

counsel when their lawyers fail to inform them of

offers made by prosecutors and they later receive

21

sentences more severe than the prosecutors proposed.

The Court’s rulings pleased many commentators, one

of whom observed, “The Supreme Court’s decisions in

these two cases constitute the single greatest

revolution in the criminal justice process since

Gideon v. Wainwright.” Adam Liptak, Justices’

Ruling Expands Rights of Accused in Plea Bargains,

N.Y. Times, Mar. 22, 2012, at Al (quoting Wesley

Oliver). Another proclaimed, “Finally, the Court has

brought law to the shadowy plea-bargaining bazaar.”

Stephanos Bibas, Taming Negotiated Justice, 122

Yale L.J. Online 35 (2012).

After this Court’s decisions, however, a former

federal prosecutor proposed adding the following

language to all plea agreements:

[T]he defendant is aware that defense counsel

vary considerably in quality and experience, and

that there is no advance guarantee that counsel

in this case will give sound or even competent

advice .... Knowing... that he may receive

poor advice from his counsel, and that such

advice (or failure to advise) may result in an

outcome less favorable than he would receive

with a_ typically competent lawyer, the

defendant waives any remedy that would

involve vacating his conviction or lessening the

sentence ultimately imposed, in exchange for

the government’s agreement to negotiate a

disposition of this case.

Bill Otis, Comment on One Notable Case Showing

Impact of and Import of Lafler and Frye, Sent’g L. &

Pol’y Blog (Nov. 26, 2012), http://

sentencing.typepad.com/sentencing_law_and_policy/

22

2012/1 1/one-notable-case-showing-impact-and-

import-of-lafler-and-frye. html.

Perhaps this former prosecutor’s incantation can

make two “landmark” Supreme Court decisions

disappear, but courts, commentators, and state bar

ethics committees disagree about the permissibility

of the waivers he proposed. See Nancy J. King, Plea

Bargains that Waive Claims of Ineffective Assistance:

Waiving Padilla and Frye, 51 Dug. L. Rev. 647, 648-

51, 662-65 (2013); Susan R. Klein et al., Waiving the

Criminal Justice System: An Empirical and

Constitutional Analysis, 52 Am. Crim. L. Rev. 73

(2015); J. Vincent Aprile II, Waiving the Integrity of

the Criminal Justice System, Crim. Just., Winter

2010, at 46; R. Michael Cassidy, Some Reflections on

Ethics and Plea Bargaining: An Essay in Honor of

Fred Zacharias, 48 San Diego L. Rev. 93, 108 (2011)

(“Insisting on so-called ineffective counsel waivers

impresses me as overreaching of the worst sort and

fundamentally inconsistent with a _ prosecutor’s

obligation as a minister of justice.”).

At present, the Justice Department does not allow

federal prosecutors to include waivers of the right to

effective legal assistance in their plea agreements.

See Memorandum from Deputy Attorney General

James M. Cole: Department Policy on Waivers of

Claims of Ineffective Assistance of Counse] (Oct. 14,

2014), https://www.justice.gov/file/70111/download

(declaring that although the Department of Justice

“is confident that a waiver of a claim of ineffective

assistance of counsel is both legal and ethical,”

“(flederal prosecutors should no longer seek in plea

agreements to have a defendant waive claims of

ineffective assistance of counsel.”).

23

Descriptions of this case as presenting only an

issue of what contractual default rule to apply could

convey the impression that added language

precluding constitutional challenges would be

unproblematic. Readers of the Court’s opinion in this

case should understand, however, that this issue

remains unresolved.

Despite my harsh criticism of plea bargaining, I

have acknowledged that “[t]he time for a crusade to

prohibit plea bargaining has passed.” Albert W.

Alschuler, Lafler and Frye: Two Small Band-Aids for

a Festering Wound, 51 Dua. L. Rev. 673, 706 (2013).

Reservations about this practice, however, caution in

favor of preserving the ability to litigate issues of

special importance to the public—including the

constitutional validity of criminal statutes.

CONCLUSION

In cases like Ex Parte Siebold, 100 U.S. 371 (1879),

and Teague v. Lane, 489 U.S. 288 (1989), this Court

has afforded special protection to the right not to be

convicted under an unconstitutional statute. The

Court should protect this right by allowing Rodney

Class to challenge on appeal the constitutionality of

the statute he was convicted of violating. The Court

should also leave open the possibility of affording

this right greater protection than is at issue in this

case.

24

Respectfully submitted,

MATTHEW J. SILVEIRA ALBERT W. ALSCHULER

JONES DAY Counsel of Record

555 California St. 220 Tuttle Road

26th Floor Cumberland, ME 04021

San Francisco, CA 94104 (207) 829-3963

a-alschuler@law.northwestern.edu

STEPHEN J. PETRANY

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

May 19, 2017