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

RODNEY CLASS,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Wait or CERTIORARI TO THE UNITED STATES

Court oF APPEALS FoR THE DC Circurr

BRIEF OF THE INNOCENCE PROJECT

AS AMICUS CURIAE IN SUPPORT

OF PETITIONER

M. Curis FABRICANT JaMEs C. DUGAN

VANESSA PoTKIN Counsel of Record

INNOCENCE PrRoJECcT, INc. Trwotuy J. McGinn

40 Worth Street, Suite 701 STEVEN J. BALLEW

New York, New York 10013 Parricia O. Haynes

(212) 364-5340 WILLKIE Farr & GaLLacuer LLP

787 Seventh Avenue

New York, New York 10019

(212) 728-8000

jdugan@willkie.com

ELIZABETH J. JONAS

WILLKIE Farr & GALLAGHER LLP

1875 K Street, N.W.

Washington, DC 20006

Counsel for Amicus Curiae

May 19, 2017

i

TABLE OF CONTENTS

Page

PN vcencccésecdevvceiseteces i

TABLE OF CITED AUTHORITIES .............. iii

INTEREST OF AMICUS CURIAE ................ 1

SUMMARY OF ARGUMENT..................... 2

sic ca cccncaruphtlee+euenechwun ene 3

I. THE AMERICAN CRIMINAL JUSTICE

SYSTEM IS A SYSTEM OF PLEA

BARGAINS, NOT TRIALS................. 3

Il. DEFENDANTS PLEAD GUILTY TO

RECEIVE SHORTER SENTENCES

EVEN WHEN THEY MAY NOT BE

ET dacuvsc cacdseskeceouucentbekeessust 6

A. The Same Factors That Cause People

To Confess To Crimes That They Did

Not Commit Can Also Cause Them

IN Cid cceecesucceseteeecs 12

B. A Defendant Is Likely To Be

Ill-Equipped To Assess The

Constitutionality Of His Conviction... . . . . 13

wu

Table of Contents

Page

li. THE COURT SHOULD HOLD

THAT A DEFENDANT WHO HAS

PLEADED GUILTY MAY CHALLENGE

THE CONSTITUTIONALITY OF

THE STATUTE OF CONVICTION

ae ES SOEs sce eccccsesecesses 15

EE Hedcsdeccctauéccndsteccsovaveiesss 23

122

TABLE OF CITED AUTHORITIES

Page

CASES

Blackledge v. Perry,

ET 16, 17

Brady v. United States,

bee sc itebewnensenent 13

Courtney v. State,

904 S.W.2d 907 (Tex. Ct. App. 1995). ............ 21

Lafler v. Cooper,

i dc cccaneetedonn ated 4, 5,15

Lefkowitz v. Newsome,

| eecanues 21, 22

Menna v. New York,

ne 16, 17

Missouri v. Frye,

i et aca ahee ton 4,5

Papachristou v. City of Jacksonville,

ds cdeci edness secs sceeeeeet 17

People v. Gertz,

154 Misc. 2d 762 (N.Y. Sup. Ct. 1992) ............ 21

Powell v. Alabama,

ac occcntesccenaesetsesooenes 14

w

Cited Authorities

Page

Rutti v. State,

oe err rrr rere 21

State v. Andrews,

Pe EN I cs oc cccccceccccccceses 21

State v. Olson,

380 N.W.2d 375 (Wis. Ct. App. 1985)............. 21

United States v. Carrasquillo-Penaloza,

826 F.3d 590 (ist Cir. 2016). ............ 2c cece, 17

United States v. Turkette,

es a lcd a oeewnl 20

Weeks v. State,

362 P.3d 650 (Okla. Crim. App. 2015) ............ 21

STATUTES

I et cis cial 20

OTHER AUTHORITIES

Michelle Alexander, Go to Trial: Crash the

Justice System, N.Y. Times (Mar. 10, 2012) ....... 10

John H. Blume & Rebecca K. Helm, The

Unexonerated: Factually Innocent

Defendants Who Plead Guilty, 100 Cornell L.

EEN Cinccksevakdeusseeecesdatuconts 10

Vv

Cited Authorities

Josh Bowers, Punishing the Innocent, 156

ee i: ced beseech use edbeevs 10

David Brereton & Jonathan D. Casper, Does

it Pay to Plead Guilty? Differential

Sentencing and the Functioning of Criminal

Courts, 16 Law & Soc’y Rev. 45 (1982) ............ i)

Russell Covey, Reconsidering the Relationship

Between Cognitive Psychology and Plea

Bargaining, 91 Mara. L. Rev. 213 (2007) .......... 7

Lucian E. Dervan & Vanessa A. Edkins,

Ph.D., The Innocent Defendant’s Dilemma:

An Innovative Empirical Study of Plea

Bargaining’s Innocence Problem, 103 J.

Crim. L. & Criminology 1 (2013) ................. 9

M. Chris Fabricant, Rethinking Criminal

Defense Clinics in “Zero Tolerance”

Policing Regimes, 36 N.Y. Univ. Rev. of

L. & Soe. Change 351 (2011)................44.. 18

M. Chris Fabricant, War Crimes and Misdemeanors:

Understanding “Zero-Tolerance” Policing as a

Form of Collective Punishment and Human Rights

Violation, 3 Drexel L. Rev. 373 (2011)......... 11, 14

vt

Cited Authorities

M. Hall, et al., Structured Sentencing Statistical

Report for Felonies and Misdemeanors: Fiscal

Year 2014/15, North Carolina Sentencing &

Policy Advisory Comm’n (April 2016), http://

www.nccourts.org/Courts/CRS/Councils/

spac/Documents/statisticalrpt_fyl4-15.pdf ....

Caroline Wolf Harlow, Ph.D, Bureau of Justice

Statisties, Special Report: Defense Counsel

in Criminal Cases, U.S. Dep’t of Justice

1 (2000), http://bjs.cjp.usdoj.gov/content/

cv cccevecccneb weeeses6é0

The Innocence Project, DNA Exonerations in the

United States, https://www.innocenceproject.

org/dna-exonerations-in-the-united-states/

(last visited May 18, 2017)................--.

Kevin Johnson, Who’s Watching the Kids When

Parents Get Arrested, USA Today (July

31, 2014 7:55 AM) https://www.usatoday.

com/story/news/nation/2014/07/31/children-

left-behind-parents-arrested/13333909/.......

Judicial Council of California, 2016 Court

Statistics Report, Statewide Caseload Trends

2005-2006 through 2014-2015 (2016), http://

www.courts.ca.gov/documents/2016-Court-

eee

vit

Cited Authorities

Nancy J. King et al., When Process Affects

Punishment: Differences in Sentences After

Guilty Plea, Bench Trial, and Jury Trial In

Five Guidelines States, 105 Colum. L. Rev. 959

ES 68 Foes codeceucecsccdiuceoucesseees

Gerard E. Lynch, RICO: The Crime of Being a

Criminal, Parts I & II, 87 Colum. L. Rev. 661

UGGS eceasencescinescdecénesicueceusess

Gerard E. Lynch, RICO: The Crime of Being a

Criminal, Parts IIT & IV, 87 Colum. L. Rev. 920

SS 646-44 6 ose ovnced sees cenéde cans bess

Memorandum from Att’y Gen. Jefferson B.

Sessions to All Federal Prosecutors (May 10,

2017) https://www.justice.gov/opa/press-release/

file/965896/download ................ecceee-

Alexandra Natapoff, Misdemeanors, 85 S. Cal.

Sie EE NS 6 eSAnccecccencesccnceecs

National Law Center on Homelessness & Poverty,

No Safe Place: The Criminalization of

Homelessness in U.S. Cities, 21-22, https://

www.nichp.org/documents/No Safe Place

(last visited May 18, 2017)...................

viit

Cited Authorities

National Registry of Exonerations, http://www.law.

umich.edu/special/exoneration/Pages/detaillist.

aspx? View={FAF6EDDB-5A68-4F8F-8A52-

2C61F5BF9EA7}&FilterField1=Crime&Filte

rValuel=8%5F Murder&FilterF ield2=Group&

FilterValue2=P (last visited May 18, 2017) ....

Office of Court Admin., Annual Statistical Report

for the Texas Judiciary: FY 2015 (2015),

http://www.txcourts.gov/media/1308021/

2015-ar-statistical-print.pdf.................

Jennifer T. Perillo & Saul M. Kassin, /nside

Interrogation: The Lie, The Bluff, and False

Confessions, 35 Law & Hum. Behav. 327

a oubae ob iccnconceascccubtesedeseeeees

Jed S. Rakoff, Why Innocent People Plead Guilty,

N.Y. Rev. of Books (Nov. 20, 2014), http://

www.nybooks.com/articles/2014/11/20/why-

innocent-people-plead-guilty/.............. 8, 12, 13

Jocelyn L. Santo, Note, Down on the Corner:

An Analysis of Gang-Related Antiloitering

Laws, 22 Cardozo L. Rev. 269 (2000) .........

ia

Cited Authorities

South Carolina Department of Public Safety,

Office of Highway Safety & Justice Programs,

Statistical Analysis Center, South Carolina

Criminal & Juvenile Justice Trends at 85

(2013), http://www.scdps.gov/ohsjp/stats/

cjtrends/2013%20Crime%20Book%20V 11%20

electronic%20version-edited.pdf.............

Scott & Stuntz, Plea Bargaining as Contract,

101 Yale L. J. ISOD CIGSR) .. weer ccccccccens

Tennessee Judiciary, Annual Report of the

Tennessee Judiciary: Fiscal Year 2013-

2014 (2014), http://www.tsc.state.tn.us/sites/

default/files/docs/annual report fy2014.pdf . .

Molly J. Walker Wilson, Defense Attorney Bias and

the Rush to Plea, 65 Kan. L. Rev. 271 (2016) . . .

Ronald F. Wright, Trial Distortion and the End

of Innocence In Federal Criminal Justice,

ee Ss Bs SO ED occ cncecccccccece

Jordan Blair Woods, Systemic Racial Bias and

RICO’s Application to Criminal Street and

Prison Gangs, 17 Mich. J. Race & L. 303

SFG a se hevedvcene sens cceuneveseceseaees

x

Cited Authorities

U.S. Dep’t of Justice, Civil Rights Division,

Investigation of the Ferguson Police

Department (Mar. 4, 2015) https://www.

justice.gov/sites/default/files/opa/press-releases/

attachments/2015/03/04/ferguson_police_

Gepertememt repert LOGE... cc ccc ccccsccess

U.S. Sentencing Comm’n, 1996 Sourcebook of

Federal Sentencing Statistics.................

U.S. Sentencing Comm’n, 2001 Sourcebook of

Federal Sentencing Statistics.................

U.S. Sentencing Comm’n, 2006 Sourcebook of

Federal Sentencing Statistics.................

U.S. Sentencing Comm’n, 2011 Sourcebook of

Federal Sentencing Statistics.................

U.S. Sentencing Comm’n, 2015 Sourcebook of

Federal Sentencing Statistics.................

U.S. Sentencing Comm’n, 2016 Sourcebook of

Federal Sentencing Statistics.................

Virginia Criminal Sentencing Comm'n, 2016 Annual

Report at 26 (Dec. 1, 2016), http://www-vesc.

virginia.gov/2016Annualreportfinal.pdf........

1

INTEREST OF AMICUS CURIAE:

The Innocence Project is an organization dedicated

primarily to providing pro bono legal and related

investigative services to prisoners for whom evidence

discovered post-conviction can provide proof of innocence.

The Innocence Project also seeks to prevent future

wrongful convictions by researching their causes and

pursuing reform initiatives designed to enhance the truth-

seeking functions of the criminal justice system. Because

wrongful convictions destroy lives and allow the actual!

perpetrators to remain free, the Innocence Project’s work

serves as an important check on the awesome power of

the state over criminal defendants and helps to ensure a

safer and more just society.

The advent of forensic DNA testing and the use of

that testing to review criminal convictions have provided

scientific proof that our system is susceptible to convicting

the innocent and that wrongful convictions are not isolated

events. To date, 350 wrongfully convicted individuals have

been exonerated through DNA testing. Over ten percent

of those wrongfully convicted defendants pleaded guilty

to crimes they did not commit. Despite their innocence

1. The parties have consented to the filing of this brief.

Petitioner has filed with the Clerk of the Court a letter granting

blanket consent to the filing of amicus curiae briefs. Respondent’s

consent is filed herewith. Pursuant to Supreme Court Rule 37.6,

counsel for amicus certifies that no counsel for a party authored

this brief in whole or in part, and no party or its counsel made

a monetary contribution intended to fund the preparation or

submission of this brief. No person other than amicus, its

members, or its counsel made a monetary contribution to this

brief’s preparation or submission.

2

and despite being charged with serious violent felonies,

these individuals took pleas that resulted in lengthy

prison sentences. The pressures that led these innocent

defendants to plead guilty are also brought to bear in

cases involving lesser criminal offenses, and those same

pressures can likewise compel a guilty plea for conduct

that is constitutionally protected. Because over ninety-

five percent of criminal cases are resolved through

plea bargaining, and because both legally and factually

innocent people nevertheless plead guilty, such convictions

should be reviewable for constitutional infirmities. The

Innocence Project thus has a strong interest in ensuring

that courts retain the ability to review the constitutionality

of convictions secured through guilty pleas.

SUMMARY OF ARGUMENT

The American criminal justice system has evolved

from a system of trials into a system of plea bargains. A.

both the state and federal level, the overwhelming majorit;

of defendants who are convicted enter guilty pleas rather

than risk a trial. As the Court has recognized previously,

any decision concerning the scope of a defendant’s rights

must account for the central role that plea bargaining

plays with respect to conviction and sentencing.

Today, many defendants—including innocent

defendants—plead guilty primarily to receive less severe

sentences. The criminal justice system places these

defendants under tremendous pressure to plead guilty.

Prosecutors charge these defendants with offenses

punishable by lengthy sentences, then offer to reduce

the charges and maximum sentences significantly in

exchange for guilty pleas. Defense attorneys, trying

3

to spare their clients from unnecessarily long prison

terms, often counsel in favor of guilty pleas, even when

the defendants assert their innocence. In many cases, the

defendants are indigent, unable to make bail, and likely to

face lengthy periods of pre-trial incarceration. As a result

of these pressures, questions of guilt and innocence or

the constitutionality of the underlying statutes are often

secondary, with the decision to plead guilty driven by the

desire to leave jail as soon as possible.

The Court should hold that a defendant who has pleaded

guilty may nevertheless challenge the constitutionality of

the statute of conviction on direct review. Such a ruling

would stand as an important check against legislative

and prosecutorial overreach and misconduct. Given the

sheer number of defendants who plead guilty instead of

proceeding to trial, criminal convictions that offend the

Constitution would in many cases be unreviewable in

the absence of a rule permitting a defendant to bring a

post-plea challenge to the constitutionality of the statute

of conviction. Such a result cannot be reconciled with the

Court’s prior recognition that its jurisprudence should

account for the primacy of plea bargaining in the criminal

justice system.

ARGUMENT

I. THE AMERICAN CRIMINAL JUSTICE SYSTEM

IS A SYSTEM OF PLEA BARGAINS, NOT

TRIALS.

Constitutional protections around the plea-bargaining

process are in many respects more critical to the proper

and fair functioning of the American criminal] justice

4

system than those that protect criminal defendants during

arrest or at trial. The American criminal justice system

is “for the most part a system of pleas, not a system of

trials.” Lafler v. Cooper, 566 U.S. 156, 170 (2012). During

Fiscal Year 2016, 97.3 percent of federal convictions were

the result of guilty pleas. U.S. Sentencing Comm’n, 2016

Sourcebook of Federal Sentencing Statistics, Figure

C. This was no aberration. In each of the last ten fiscal

years, at least 95.8 percent of federal convictions were

the result of guilty pleas. /d.; U.S. Sentencing Comm'n,

2011 Sourcebook of Federal Sentencing Statistics, Figure

C. And in every fiscal year since 1994, more than ninety

percent of federal convictions were the result of guilty

pleas. /d.; U.S. Sentencing Comm’n, 2006 Sourcebook of

Federal Sentencing Statistics, Figure C; U.S. Sentencing

Comm’n, 2001 Sourcebook of Federal Sentencing

Statistics, Figure C; U.S. Sentencing Comm’n, 1996

Sourcebook of Federal Sentencing Statistics, Figure C.

A similar percentage of state-level convictions are the

result of guilty pleas. See Missouri v. Frye, 566 U.S. 133,

143 (2012) (“ninety-four percent of state convictions are

the result of guilty pleas”) (citations omitted).’

2. More recent state-level data confirms that this conclusion

remains valid today. See, e.g., Judicial Council of California, 2016

Court Statistics Report, Statewide Caseload Trends 2005-2006

through 9014-2015 at 62, 75 (2016), http://www.courts.ca.gov/

documents/2016-Court-Statistics-Report.pdf (136,017 of 139,927

felony convictions (97.2 percent) and 42,652 of 43,018 misdemeanor

convictions (99.1 percent) in Superior Courts were the result of guilty

and no contest pleas); M. Hall, et al., Structured Sentencing Statistical

Report for Felonies and Misdemeanors: Fiscal Year 2014/15, North

Carolina Sentencing & Policy Advisory Comm’n at 8 (April 2016),

http://www.nccourts.org/Courts/CRS/Councils/spac/Documents/

statisticalrpt_ fyl4-15.pdf (28,617 of 29,232 convictions (97.9 percent)

were the result of guilty pleas); South Carolina Department of Public

5

Thus, as this Court has recognized previously, plea

bargaining “is not some adjunct to the criminal justice

system; it 7s the criminal justice system.” Frye, 566

U.S. at 144 (quoting Scott & Stuntz, Plea Bargaining as

Contract, 101 Yale L. J. 1909, 1912 (1992) (emphasis in

original)). Accordingly, “the negotiation of a plea bargain,

rather than the unfolding of a trial, is almost always

the critical point for a defendant.” Jd. Consequently, the

rights of the defendant—to effective assistance of counsel

and otherwise—‘“cannot be defined or enforced without

taking account of the central role plea bargaining plays

in securing convictions and determining sentences.”

See Lafler, 566 U.S. at 170 (remedying defense counsel's

ineffective assistance in connection with plea offer).

The constitutional protections around the plea-

bargaining process should include the right of a defendant

Safety, Office of Highway Safety & Justice Programs, Statistical

Analysis Center, South Carolina Criminal & Juvenile Justice

Trends at 85 (2013), http://www.scdps.gov/ohsjp/stats/cjtrends/

2013%20Crime%20Book%20V11%20electronic%20version-edited.

pdf (46,435 of 47,134 convictions (98.5 percent) were the result of

guilty pleas); Tennessee Judiciary, Annual Report of the Tennessee

Judiciary: Fiscal Year 2013-2014 at 21 (2014), http://www.tsc.state.

tn.us/sites/default/files/docs/annual report fy2014.pdf (76,090 of

81,130 convictions (93.8 percent) were the result of guilty pleas);

Office of Court Admin., Annual Statistical Report for the Texas

Judiciary: FY 2015 at Detail-10 (2015), http://www.txcourts.gov/

media/1308021/2015-ar-statistical-print.pdf (105,600 of 109,518

convictions (96.4 percent) in Texas District Court criminal cases

were the result of guilty or nolo contendere pleas); Virginia Criminal

Sentencing Comm’n, 2016 Annuai Report at 26 (Dec. 1, 2016), http://

www.vesc.virginia.gov/2016Annualreportfinal.pdf (90.6 percent of

convictions for felonies subject to sentencing guidelines were the

result of guilty pleas).

6

to challenge the constitutionality of his conviction on direct

appeal after pleading guilty. A ruling that defendants have

no such right would encourage prosecutors to overreach,

secure in the knowledge that a guilty plea renders

virtually all abuses and violations of the United States

Constitution immune from judicial review.

II. DEFENDANTS PLEAD GUILTY TO RECEIVE

SHORTER SENTENCES EVEN WHEN THEY

MAY NOT BE GUILTY.

The criminal justice system’s reliance on pleas

places pressure on all defendants to plead guilty. Capital

defendants are pressured to plead guilty to avoid the

possibility of a death sentence. Indigent defendants who

are charged with misdemeanors and unable to make bail

are pressured to plead guilty to avoid lengthy pretrial

detention periods and secure thei own release from jail.

Neither innocent nor guilty defendants want to receive

the most severe punishments available under the law

or endure the stress and uncertainty of trial, and their

decisions to plead guilty or not are informed by these

pressures. Put differently, life and liberty are often the

prevailing considerations, rather than guilt or innocence.

That these pressures operate on innocent and

guilty defendants alike is well established. The National

Registry of Exonerations identifies fifty-one Americans

who pleaded guilty to murder but were later exonerated.*

3. National Registry of Exonerations, http://www.law.umich.edu/

special/exoneration/Pages/detaillist.aspx? View= {FAF6E DDB-

5AG8-4F8F-8A52-2C61F5BF9EA7) &FilterField1=Crime&Filte

rValuel=8 Murder&FilterField2=Group&FilterValue2=P (last

visited May 18, 2017).

7

Likewise, the Innocence Project has identified thirty-

seven defendants who pleaded guilty but were later

exonerated by post-conviction DNA testing.‘

Prosecutors play a central role in a defendant’s

decision to plead guilty. The leverage prosecutors use to

induce pleas is an opportunity to plead guilty to reduced

charges and accept the certainty of some—but less—time

in prison or risk a trial on more serious charges and receive

a longer sentence, often a significantly longer sentence or

even death, if convicted. The prosecutor cannot make the

decision for the defendant but has considerable influence

over it. For example, a federal prosecutor may—and,

under most circumstances, must—“charge and pursue the

most serious, readily provable offense,” i.e., the offense

that “carr{ies] the most substantial guidelines sentence,

including mandatory minimum sentences.”

The prosecutor may also “stack’ charges carrying

mandatory minimums in order to threaten or impose

dramatic increases in mandatory sentences after a

trial conviction.” Russell Covey, Reconsidering the

Relationship Between Cognitive Psychology and Plea

Bargaining, 91 Marq. L. Rev. 213, 228-29 (2007). In such

a case, the difference between the maximum sentence

after trial and the sentence provided for by the proposed

plea “could become so large that some defendants would

4. The Innocence Project, DNA Exonerations in the United

States, https://www.innocenceproject.org/dna-exonerations-in-

the-united-states/ (last visited May 18, 2017).

5. Memorandum from Att’y Gen. Jefferson B. Sessions to All

Federal Prosecutors (May 10, 2017) https://www.justice.gov/opa/

press-release/file/965896/download.

8

not accurately weigh their options and would not dare go

to trial, even with a strong defense.” Ronald F. Wright,

Trial Distortion and the End of Innocence In Federal

Criminal Justice, 154 U. Pa. L. Rev. 72, 109 (2005).

Indeed, the likelihood of such a response from a rational

defendant provides an incentive for a prosecutor to

charge excessively, then offer a lesser sentence—or even

a “market clearing” discount when the state’s evidence

is weak—in order to induce a defendant to give up his

trial right and the possibility of acquittal. See id. Taken

together, the parties’ incentives and the authority given to

the prosecutor create significant pressure for defendants

who may not be guilty to plead guilty.

The available evidence confirms the disparity between

sentences handed down after trial and those entered in

connection with guilty pleas. For example, “in 2012, the

average sentence for federal narcotics defendants who

entered into any kind of plea bargain was five years and

four months, while the average sentence for defendants

who went to trial was sixteen years.”

Likewise, a study of sentencing data in five states

revealed that, as in federal courts, “the average sentence

after jury trial is more severe than the average sentence

after guilty plea... .” Nancy J. King et al., When

Process Affects Punishment: Differences in Sentences

After Guilty Plea, Bench Trial, and Jury Trial In Five

Guidelines States, 105 Colum. L. Rev. 959, 975 (2005). For

example, in one state, the sentences for heroin distribution

6. Jed S. Rakoff, Why Innocent People Plead Guilty,

N.Y. Rev. of Books (Nov. 20, 2014), http://*www.nybooks.com/

articles/2014/11/20/why-innocent-people-plead-guilty/.

9

were 350 percent longer after trial by jury than they were

after conviction by guilty plea. Jd. at 973. See also David

Brereton & Jonathan D. Casper, Does it Pay to Plead

Guilty? Differential Sentencing and the Functioning of

Criminal Courts, 16 Law & Soc’y Rev. 45, 56-57 (1982)

(California robbery and burglary defendants more likely

to be imprisoned than those who pleaded guilty).

Defense attorneys make their clients aware of these

sentencing differentials in presenting the potential costs

of exercising their right to trial, and “defendants would

be a good deal less willing to plead guilty in the absence

of a sentence-related inducement.” Brereton & Casper,

supra, at 69. Such inducements appeal to guilty and

innocent defendants alike, as demonstrated by a recent

empirical study that attempted to replicate the choice

put to an innocent defendant who is offered a lenient plea

bargain or a hearing on more severe charges. See Lucian

E. Dervan & Vanessa A. Edkins, Ph.D., The Innocent

Defendant’s Dilemma: An Innovative Empirical Study of

Plea Bargaining’s Innocence Problem, 103 J. Crim. L. &

Criminology 1 (2013). In the study, college students were

falsely accused of cheating on a logic test. The students

were given the option to either admit their guilt and forfeit

the compensation they were promised for participating

in the study or face an academic review board and risk a

“sentence” in the form of a semester-long ethics course and

disclosure to the school about their academic dishonesty.

Approximately sixty percent of the innocent students

nevertheless “admitted” guilt. Jd. at 34.

Innocent defendants, like guilty defendants, plead

guilty in exchange for lighter sentences because the

benefits of doing so outweigh the costs of facing trial.

10

In other words, the pressures placed on these innocent

defendants by the criminal justice system are so

significant, and the alternatives to pleading guilty are

so draconian, that it is a rational decision to plead guilty

to crimes they did not commit. Many of these innocent

defendants who plead guilty have been charged with minor

offenses and want to “get out of jail, to avoid the hassle of

having criminal charges hanging over their heads, or to

avoid being punished for exercising their right to trial.”

John H. Blume & Rebecca K. Helm, The Unexonerated:

Factually Innocent Defendants Who Plead Guilty, 100

Cornell L. Rev. 157, 178 (2014). The vast majority of felony

defendants are poor, and their choices to plead guilty

despite their innocence are informed by their economic

circumstances. Alexandra Natapoff, Misdemeanors, 85

S. Cal. L. Rev. 1313, 13844 n.165, 1346-47 (2012) (citing

Caroline Wolf Harlow, Ph.D, Bureau of Justice Statistics,

Special Report: Defense Counsel in Criminal Cases, U.S.

Dep’t of Justice 1 (2000), http://bjs.ojp.usdoj.gov/content/

pub/pdf/dece.pdf (eighty percent of felony defendants in

state courts cannot afford counsel)). Often, they cannot

make bail and are therefore likely to be incarcerated until

they plead guilty or are tried. Jd. “For those with children,

jobs, or other obligations, the deprivations inflicted by a

month in jail can be worse punishment than they would

face if they were convicted at trial.” Id.’

7. See also Josh Bowers, Punishing the Innocent, 156 U. Pa. L.

Rev. 1117 (2008) (arguing that, in low-stakes cases where innocent

defendants bear significant “process costs”—such as pecuniary

loss, inconvenience, and uncertainty of outcome—by going to trial,

innocent defendants act rationally by pleading guilty); Michelle

Alexander, Go to Trial: Crash the Justice System, N.Y. Times, at

SR5 (Mar. 10, 2012) (recounting case of single mother arrested

on drug charges who spent a month in jail, then pleaded guilty

11

Innocent and guilty defendants may also plead

guilty because of the pressure imposed upon them by

prosecutors, defense counsel, and even judges whose

heavy caseloads require them to quickly dispose of

large numbers of cases involving low-level offenses,

particularly in high-volume urban courthouses. Indeed,

these systemic pressures often result in an auction-like

atmosphere at misdemeanor arraignments, where the

prosecutor and defense attorney make competing “bids”

that they try to sell to the defendant within minutes of

familiarizing themselves with the facts of a case. See

M. Chris Fabricant, War Crimes and Misdemeanors:

Understanding “Zero-Tolerance” Policing as a Form of

Collective Punishment and Human Rights Violation, 3

Drexel L. Rev. 373, 401-06 (2011) (describing the expedited

misdemeanor arraignment process in New York City

Criminal Court). If a defendant resists the pressure

to plead guilty at arraignment and instead asserts his

innocence and pursues a trial, he runs the risk that bail

will be set, he will remain in custody, and his case will drag

on, in some instances for more than a year. Jd. at 405. This

process tests neither the weight of the evidence nor the

constitutionality of the underlying statute. Instead, itis a

test of a misdemeanor defendant’s endurance, usually to

no end, since the costs of a drawn-out case typically lead

the defendant to plead guilty, too. /d.

in exchange for probation, despite her assertions of innocence, to

return to her children); Kevin Johnson, Who’s Watching the Kids

When Parents Get Arrested, USA Today (July 31, 2014 7:55 AM)

https://www.usatoday.com/story/news/nation/2014/07/31/children-

left-behind-parents-arrested/13333909/ (former Deputy Attorney

General James Cole “indicated that thousands of children could

require” emergency placement as a result of parent’s arrest).

12

In sum, defendants plead according to their perceptions

of the risks involved, and many of these risks simply do not

hinge on their actual guilt, the strength of the evidence, or,

as discussed infra, the constitutionality of the underlying

statute.

A. The Same Factors That Cause People To

Confess To Crimes That They Did Not Commit

Can Also Cause Them To Plead Guilty.

False confessions and guilty pleas by innocent

defendants are each more likely when the defendant is

given the right (typically short-term) incentive not to

tell the truth. As Judge Rakoff has previously observed,

“(rjesearch indicates that young, unintelligent, or risk-

averse defendants will often provide false confessions just

because they cannot ‘take the heat’ of an interrogation.”

Rakoff, supra, note 6. In addition, police investigators

are trained to present suspects with false evidence of

their guilt. Jennifer T. Perillo & Saul M. Kassin, Inside

Interrogation: The Lie, The Bluff, and False Confessions,

35 Law & Hum. Behav. 327 (2011). The innocent who

confess in response do so as “an act of social compliance

when they feel trapped by the apparent strength of the

evidence against them and perceive no other means of

escape.” Jd. False evidence also presents “a strong form

of misinformation [and] can create confusion and lead

people to doubt their own beliefs, at times internalizing

guilt and confabulating memories for crimes they did not

commit.” Jd. at 327-28.

Similarly, innocent defendants can be and often are

pressured to plead guilty, though the pressure is not

entirely adversarial and thus arguably more difficult

13

to withstand. The deal offered by the prosecutor—the

promise of a reduced sentence if the defendant will only

forego his right to a trial, coupled with the threat of a

longer sentence if the agreement is rejected—provides

a strong incentive to plead guilty. This incentive is often

coupled with the pressure placed on the defendant by his

own attorney, who, in many cases, advises the client “that

there is a strong case against him, that his likelihood

of acquittal is low, and that he faces” a lengthy prison

sentence unless he quickly accepts the plea deal. Rakoff,

supra, note 6. Defense attorneys who believe that it is

in their client’s best interest to accept a guilty plea will

sometimes engage in “arm-twisting” to ensure that the

client takes the deal. Molly J. Walker Wilson, Defense

Attorney Bias and the Rush to Plea, 65 Kan. L. Rev. 271,

303 (2016). Such arm-twisting may even include “enlisting

‘capital experts’ who will recount stories of trials that

culminated in death sentences, getting family members

to implore the client to take a plea to spare the family, and

using religion as a basis for arguing that the defendant

could be making a difference for fellow prisoners.” Jd. at

304. Thus, just as a police officer may coerce a suspect

into confessing to a crime he did not commit, the innocent

defendant’s own attorney may create an environment in

which the defendant feels trapped and can only “escape”

by pleading guilty to a crime he did not commit.

B. A Defendant Is Likely To Be Ill-Equipped

To Assess The Constitutionality Of His

Conviction.

As this Court noted in Brady v. United States, 397

U.S. 742, 752 (1970), “[fJor a defendant who sees slight

possibility of acquittal, the advantages of pleading

14

guilty and limiting the probable penalty are obvious—

his exposure is reduced, the correctional processes can

begin immediately, and the practical burdens of a trial

are eliminated.” Defendants who violate a statute that

is constitutionally defective are unlikely to be capable of

assessing their chances of successfully challenging the

statute and are thus likely to see only a slight possibility

of acquittal.

To begin with, most defendants will be unable to

evaluate their chances of successfully challenging the

constitutionality of the statute under which they are

charged. “Even the intelligent and educated layman has

small and sometimes no skill in the science of the law.

If charged with [a] crime, he is incapable, generally, of

determining for himself whether the indictment is good

or bad.” Powell v. Alabama, 287 U.S. 45, 69 (1932). Most

criminal defendants are also likely to be incapable of

determining for themselves whether a statute passes

constitutional muster.* In many misdemeanor cases,

defense counsel at an arraignment will advise a defendant

to plead guilty after a brief interview, the substance

of which is limited to informing the defendant about

the standard plea bargain for the charged offense.

Fabricant, supra, at 402. Defendants are therefore

unlikely to understand the legal nuances involving the

constitutionality of the statute that they are charged with

violating.

8. See U.S. Sentencing Comm’n, 2015 Sourcebook of Federal

Sentencing Statistics, Table 8, http://www.ussc.gov/sites/

default/files/pdf/research-and-publications/annual-reports-and-

sourcebooks/2015/Table08.pdf (more than forty-five percent of

criminal defendants sentenced in federal court lack a high school

education and only 6.3 percent have graduated from college).

15

Instead, such defendants are likely to focus on whether

they will be released from custody while the charges are

pending if they reject the plea offer; whether they will

be able to accept the offer at a later time; and potential

pressure from a defense attorney who thinks that taking

a plea is in the best interest of the client. To the extent

the evidence alleged in the accusatory instrument is

part of the calculus, consideration is typically focused

on whether those allegations demonstrate that the

defendant has violated the statute at issue, rather than

whether the statute itself is lawful. All of which will

likely leave the defendant with the impression that he

has only a slight possibility of acquittal. Furthermore,

so long as there is sufficient evidence of factual guilt

alleged in the charging document, the defendant may

feel that he is better off pleading guilty to a statute that

is constitutionally defective than taking the chance that a

court will disagree with him and rule that the challenged

statute is constitutional—particularly if a plea results in

his immediate release from custody. To safeguard the

rights of such defendants, this Court should hold that

a defendant may challenge the constitutionality of his

conviction on direct appeal after pleading guilty.

il. THE COURT SHOULD HOLD THAT A

DEFENDANT WHO HAS PLEADED GUILTY

MAY CHALLENGE THE CONSTITUTIONALITY

OF THE STATUTE OF CONVICTION ON DIRECT

REVIEW.

The contours of a defendant’s right to challenge

the constitutionality of the statute of conviction should

reflect the “central role plea bargaining plays in securing

convictions and determining sentences.” See Lafler, 566

16

U.S. at 170. A holding that a defendant waives his right

to bring such a challenge by virtue of pleading guilty

would foreclose an important avenue of exoneration

under a “legal innocence” theory given that the statute

of conviction is itself unlawful. Such a holding would also

encourage prosecutorial overreach and potentially render

convictions under unlawful criminal statutes effectively

unreviewable.’ Indeed, if post-plea appeals attacking the

constitutionality of a statute of conviction are deemed

to be waived by virtue of a guilty plea, only a fraction of

the defendants convicted under constitutionally infirm

statutes will be able to challenge them at all. Furthermore,

a blanket rule that a guilty plea renders the statute of

conviction unreviewable will incentivize prosecutors to

overcharge defendants and threaten them with even

longer sentences to ensure that plea bargains are accepted

and the underlying laws are shielded from court review.

The Court has long recognized the necessity of

providing defendants a check against prosecutorial

overreach even after they have pleaded guilty. See

Menna v. New York, 423 U.S. 61, 62-63 (1975) (permitting

double jeopardy challenge even after defendant pleaded

guilty); Blackledge v. Perry, 417 U.S. 21, 27-28, 31 (1974)

(discussing the prosecution’s motives to discourage

appeals by encouraging guilty pleas and allowing due

process challenges, related to vindictive or malicious

prosecution, to survive guilty pleas). While there is

a circuit split on how broadly to apply the rules in

9. In accordance with the question presented to the Court,

the argument made herein addresses only the scenario in which

a defendant has not explicitly waived his right to appeal his

conviction on direct review.

17

Blackledge and Menna, even the federal circuit courts

that have interpreted Blackledge/Menna to allow only

a small set of constitutional challenges to survive post-

guilty plea have held that defendants who plead guilty

can bring malicious prosecution claims. See, e.g., United

States v. Carrasquillo-Penaloza, 826 F.3d 590, 593 & n.4

(ist Cir. 2016) (“The Supreme Court has recognized two

types of nonjurisdictional errors that are not waived by

an unconditional guilty plea,” including double jeopardy

challenges and “due process chalienge[s] arising from

repetitive, vindictive prosecution.”).

The right to challenge the constitutionality of a statute

of conviction after entering a guilty plea is the necessary

and logical extension of the Court’s prior holdings

guarding against legislative and prosecutorial! overreach.

Discriminatory enforcement of certain so-called quality

of life offenses demonstrates why.

In recent years, local governments have enacted

statutes targeting vagrancy, loitering, and panhandling

with increased frequency.” Historically, such statutes have

been disproportionately applied against poor communities

of color. See Papachristou v. City of Jacksonville, 405

U.S. 156, 162 (1972) (holding that a vagrancy statute was

“void for vagueness, both in the sense that it fail[ed] to

give a person of ordinary intelligence fair notice that

1( See National Law Center on Homelessness & Poverty, No

Safe Place: The Criminalization of Homelessness in U.S. Cities,

21-22, https://www.nlchp.org/documents/No Safe Place (last

visited May 18, 2017) (showing that between 2011 and 2014 there

was a twenty-five percent increase in city-wide bans of begging

in public and a thirty-five percent increase in city-wide bans of

loitering in public).

18

his contemplated conduct is forbidden by statute . . . and

because it encourage[d] arbitrary and erratic arrests and

convictions”) (internal citations omitted)." Prosecutions for

violation of vagrancy and loitering statutes are precisely

the sort of relatively low-stakes cases in which the costs

and inconvenience of standing trial are likely to encourage

a defendant—particularly a defendant of limited means—

to plead guilty, even if the law’s application to him is

unconstitutional. A ruling that a defendant waives the

right to challenge the constitutionality of such a statute

by pleading guilty would therefore effectively insulate the

statute and the prosecutor’s application of it from any sort

of constitutional scrutiny.

The Department of Justice Civil Rights Division’s

2015 investigative report concerning the Ferguson Police

Department (F PD) demonstrates the harm that can be

inflicted on minority and impoverished communities

when those charged with crimes are unable to effectively

raise constitutional challenges.’* The municipal court

11. See also M. Chris Fabricant, Rethinking Criminal Defense

Clinics in “Zero Tolerance” Policing Regimes, 36 N.Y. Univ. Rev.

of L. & Soc. Change 351, 362-63 (2011) (explaining how New York’s

trespassing laws are enforced in a way that disproportionately

affects the City’s poorest communities); Jocelyn L. Santo, Note,

Down on the Corner: An Analysis of Gang-Related Antiloitering

Laws, 22 Cardozo L. Rev. 269, 271 (2000) (“[A)ntiloitering statutes

were also enacted in the nascent American republic and continued

after the Civil War” in order “to keep former slaves in a state of

quasi-slavery.”) (internal citation omitted).

12. See U.S. Dep’t of Justice, Civil Rights Division,

Investigation of the Ferguson Police Department (Mar. 4, 2015)

(hereinafter “DOJ Ferguson Report”), https://www.justice.gov/

sites/default/files/opa/press-releases/attachments/2015/03/04/

ferguson police department report 1.pdf.

19

of Ferguson adopted the unconstitutional practice of

issuing arrest warrants due to missed court appearances

and unpaid fines originating from minor offenses, such

as parking infractions, traffic tickets, or housing code

violations. See DOJ Ferguson Report at 3. Arrests

occurred even though “[jjail time would be considered

far too harsh a penalty for the great majority of these

code violations.” Jd. The report also described FPD’s

practice of making arrests for “a variety of protected

conduct . . . [such as] talking back to officers, recording

public police activities, and lawfully protesting perceived

injustices.” Jd. at 24. The Department of Justice opined

that a provision of the Ferguson Municipal Code, which

“prohibits obstruction of government operations ‘in

any manner whatsoever,” is “likely unconstitutionally

overbroad.” Jd. at 24 n.16. The report further noted that

the abusive prosecution of such misdemeanor offenses

disproportionately affected the African American

population in Ferguson: “African Americans account for

95% of Manner of Walking charges; 94% of all Fail to

Comply charges; 92% of all Resisting Arrest charges;

92% of all Peace Disturbance charges; and 89% of all

Failure to Obey charges.” /d. at 62. The blanket rule

that the Respondent proposes—that a guilty plea waives

a defendant’s right to challenge the constitutionality of a

conviction—would significantly limit defendants’ ability

to challenge such unlawful and discriminatory conduct

by law enforcement officials.

Legislative and prosecutorial overreach are not

limited to misdemeanors. Felony statutes can be overbroad

and enforced beyond their intended purpose, too. The

Racketeer Influenced and Corrupt Organizations Act

(“RICO”), for example, makes it unlawful for “any person

20

employed by or associated with any enterprise engaged

in, or the activities of which affect, interstate or foreign

commerce, to conduct or participate, directly or indirectly,

in the conduct of such enterprise’s affairs through a

pattern of racketeering activity. . . .” 18 U.S.C. § 1962(c).

Congress enacted RICO to combat organized crime.

See United States v. Turkette, 452 U.S. 576, 589 (1981).

Prosecutors instead “seized on the virtually unlimited

sweep of the language of RICO to bring a wide variety of

different prosecutions in the form of RICO indictments”

and used RICO “as a device to obtain federal jurisdiction

to prosecute common-law crimes against persons or

property that would normally be within the providence

of local law enforcement.” Gerard E. Lynch, RICO: The

Crime of Being a Criminal, Parts I & II, 87 Colum. L.

Rev. 661, 662 (1987); Gerard E. Lynch, RICO: The Crime

of Being a Criminal, Parts LII & IV, 87 Colum. L. Rev.

920, 921 (1987). In so doing, prosecutors ratcheted up the

penalties for common-law crimes in a way Congress never

intended, frequently targeting minority defendants. A

prohibition on hearing constitutional challenges made

by defendants who plead guilty will ensure that such

prosecutorial overreach will rarely be corrected.

Permitting a defendant to bring a post-plea challenge

to the constitutionality of the statute of conviction

would hardly burden the courts. Indeed, a number of

states already allow defendants to bring constitutional

13. See Jordan Blair Woods, Systemic Racial Bias and RICO’s

Application to Criminal Street and Prison Gangs, 17 Mich. J.

Race & L. 303, 307-09 (2012) (“[T]he government has targeted

relatively small and local groups of racial minority offenders,

provided names for the groups, and labeled the groups as gangs

even though the suspects disagreed with ‘gang’ labels.”).

21

challenges, including facial challenges to constitutionally

infirm statutes, post-guilty plea. See, e.g., Lefkowitz v.

Newsome, 420 U.S. 283, 289 (1975) (recognizing that,

under New York law, certain types of constitutional

claims raised in pre-trial proceedings are not barred

on direct and collateral review post-guilty plea); Weeks

v. State, 362 P.3d 650, 654 (Okla. Crim. App. 2015) (“We

have recognized that following a plea of guilty or nolo

contendere, the certiorari review process permits a

petitioner to raise a facial challenge to the constitutionality

of the statute upon which their conviction rests.”); State

v. Andrews, 730 N.W.2d 416, 419 (S.D. 2007) (““[W)hile a

guilty plea waives a claim that a statute is unconstitutional

as applied, it does not waive a claim that a statute is

facially unconstitutional.”); Rutti v. State, 100 P.3d 394,

400-401 (Wyo. 2004) (“[C]hallenging the constitutionality

of the statute under which the criminal defendant was

charged does qualify as a jurisdictional defense,” and

therefore is not inherently waived by pleading guilty);

Courtney v. State, 904 S.W.2d 907, 910 (Tex. Ct. App.

1995) (“[Wle now hold that a claim is jurisdictional

... when it goes to the very power of the State to bring

the defendant into court to answer the charge against

him. This includes claims of . . . facial unconstitutionality

of the statute prescribing the offense alleged,” and thus

the claim of facial unconstitutionality is not waived by a

guilty plea.); People v. Gertz, 154 Misc. 2d 762, 766 (N_Y.

Sup. Ct. 1992) (challenging the constitutionality of the

statute the defendant is charged with violating presents

a “jurisdictional issue[] which preciude[s] waiver”);

State v. Olson, 380 N.W.2d 375, 379 (Wis. Ct. App. 1985)

(“A challenge to the facial validity of a statute raises a

jurisdictional defense which survives a guilty plea.”).

22

Moreover, as the Court recognized in Lefkowitz,

permitting constitutional challenges on appeal post-guilty

plea (as New York does) is arguably more efficient than

forcing a defendant to risk trial in order to preserve such

a challenge. In such a regime, “[t}he guilty plea operates

simply as a procedure by which the constitutional issues

can be litigated without the necessity of going through the

time and effort of conducting a trial, the result of which

is foreordained if the constitutional claim is invalid.” 420

U.S. at 289-90. The Court recognized that “New York

defendants who knew that federal habeas corpus would be

foreclosed would again be dissuaded from pleading guilty

and instead would insist on a trial solely to preserve the

right to an ultimate federal forum in which to litigate their

constitutional claims.” Jd. at 293. Given that a defendant

pleading guilty acknowledges the facts at issue in the case,

but does not concede the constitutionality of the statute at

hand, a guilty plea should not be the singular roadblock

to constitutional challenges on direct or collateral appeal.

The lack of uniformity between state and federal

systems in affording criminal defendants the opportunity

to raise constitutional issues after pleading guilty is

fundamentally unjust. Federal criminal defendants should

be afforded the same ability to bring timely constitutional

challenges on direct review after pleading guilty and the

opportunity for exoneration that exist under the law of

many states.

23

CONCLUSION

For the reasons stated above, amicus curiae urges

the Court to hold that a defendant who has pleaded guilty

has not waived his right to challenge the constitutionality

of the statute of conviction and may do so on direct review.

Respectfully submitted,

M. Curis FABRICANT

VANESSA POTKIN

INNOCENCE PROJECT, INC.

40 Worth Street, Suite 701

New York, New York 10013

(212) 364-5340

JAMES C. DUGAN

Counsel of Record

Timotuy J. McGInn

STEVEN J. BALLEW

Patricia O. HAYNES

WILLKIE Farr & GALLAGHER LLP

787 Seventh Avenue

New York, New York 10019

(212) 728-8000

jdugan@willkie.com

ELIZABETH J. JONAS

WILLKIE Farr & GALLAGHER LLP

1875 K Street, N.W.

Washington, DC 20006

Counsel for Amicus Curiae

May 19, 2017