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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0713%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2017

## Text

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. 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0713%3A09. Public record. Not legal advice.