# 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%3A11

## Record

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

## Text

BRIEFS

No. 16-424

In the Supreme Court of the Anited States

RODNEY CLASS,
Petitioner,

V.

UNITED STATES OF AMERICA,
Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the
District of Columbia Circuit

BRIEF OF THE NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS AND THE
AMERICAN CIVIL LIBERTIES UNION AS AMICI
CURIAE IN SUPPORT OF PETITIONER

JONATHAN HACKER DANIEL N. LERMAN
Co-CHAIR, AMICUS Counsel of Record
COMMITTEE KATHLEEN SHEN
NATIONAL ASSOCIATION ROBBINS, RUSSELL, ENGLERT,
OF CRIMINAL DEFENSE ORSECK, UNTEREINER & SAUBER
LAWYERS LLP
1625 Eye Street, N.W. : 1801 K Street, N.W.
Washington, DC 20006 ' Washington, DC 20006
(202) 775-4500
dlerman@Grobbinsrussell.com
DAVID D. COLE RUTHANNE M. DEUTSCH
AMERICAN CIVIL LIBERTIES HYLAND HUNT
UNION FOUNDATION DEUTSCH HUNT PLLC
915 15th Street N.W. 300 New Jersey Avenue, N.W.
Washington, DC 20005 Suite 900
Washington, DC 20001

ADDITIONAL COUNSEL LISTED ON INSIDE COVER
a SS esa

EZEKIEL EDWARDS

AMERICAN CIVIL LIBERTIES
UNION FOUNDATION

126 Broad Street

New York, NY 10004

Il.

i

TABLE OF CONTENTS

THE MENNA-BLACKLEDGE
DOCTRINE SERVES THE PUBLIC
INTEREST IN TESTING THE
CONSTITUTIONALITY OF CRIMINAL

hers ciicislbnisinciiinsantkieniunniiimidesenneivense

A. Plea Bargaining Dominates The

Criminal Justice System ......................

B. Post-Plea Challenges To
Unconstitutional Statutes Are

THE GOVERNMENT'S PROPOSED
ALTERNATIVES ARE NO SUBSTITUTE

Pe Ee BE EI scccescsccecsesscescsensenezcnes

A. Rule 11(a)(2) Does Not Provide A
Meaningful Alternative To Direct

FREE EERE SESS a a

B. Collateral Review Is No Substitute
For Direct Appeal Under Menna and

EEL SRE LR Pe
CONCLUSION

SCHEER HR OO OO OTe eee mew ee

ee ee ee

il

TABLE OF AUTHORITIES

Cases

Blackledge v. Perry,

I ca canis ictsgenieninidinindimpdiopesisines

Board of Trustees of State Univ. of NLY. v.
Fox,

Seer

Bordenkircher v. Hayes,

en Si I scircsnivanssl cehsssinstsinéoansieded

Bousley v. United States,

Se i CN I acsccnccesicsssesncsesesoreseeece

Bowers v. Hardwick,

Be es MIE ctccesccccncscocsscecceseosecnsses

Brady v. United States,

I ircichcncounecatntetiteensisessensie

Broadrick v. Oklahoma,

ne I is srdincin eiessiinccsnnnaincchionslasin

Edwards vy. Carpenter,

ee

Gould v. United States,

657 F. Supp. 2d 321 (D. Mass. 2009)...................

Haynes v. United States,

a II ctertere<sepesmsesientesesicencsses

Page(s)

il

TABLE OF AUTHORITIES—Continued

Lafler v. Cooper,

Se CS BU SIPEED vcrnsscccceasnesescecseseoscs

Lawrence v. Texas,

539 U.S. 558 (2003) .................. poeikeedant

Loving v. Virginia,

Ee IE cickceninioninees siercniemneemeine

Mackey v. United States,

eit & gd. | RR eeweneneennnnn

Mackins v. United States,
No. 04-cv-261, 2009 WL 1563920

(W.D.N.C. June 1, 2009) .....................

Menna v. New York,

Be a Ie GED hcesccseriesiereennscnssssoreee

Missouri v. Frye,

BY Ss IE ID oe ccsccveenscnensacsseoesses

Montgomery v. Louisiana,

ee

Murray v. Giarratano,

NE i vidindiapenanivennntonionsinens

Padilla v. Kentucky,

EE: EP IED ences scccsnncecccdesnccacees

Penn. v. Finley,

a SR , renee

Page(s)

lV

TABLE OF AUTHORITIES—Continued

People v. Neuhaus,

240 P.3d 391 (Colo. Ct. App. 2009)............

Ex Parte Siebold,

I io itis ids wavtincinunuaionesion

State v. Keohane,

FR ge 8 eee

Steffel v. Thompson,

Se OE iciascecccessescsesessssvorsessvevncs

Susan B. Anthony List v. Driehaus,

ee I IED snessinicnernicvesotesesssssasess

Town of Newton v. Rumery,

I isc snicesexsucetcssarsecounsbestoes

United States v. Broce,

Ie GN IID va reser scctesess scssesivecesanse wea

United States v. Carvajal-Mora,
No. 08-CR-0059-CVE, 2009 WL 5171822

(N.D. Okla. Dec. 21, 2O08)................00.2000-0-

United States v. Davis,

900 F.2d 1524 (10th Cir. 1990)...........0......

United States v. Drayton,
No. 12-2568-KHV, 2013 WL 789027

= ee Ie ee

Page(s)

Vv

TABLE OF AUTHORITIES—Continued

United States v. Fisher,
772 F.2d 371 (7th Cir. 1985) .................

United States v. Knowles,
29 F.3d 947 (5th Cir. 1994)...........0.......

United States v. Stevens,

CE TFT, GE GD neo ss cccsevescsnnesesiscisencoanplinntata

Welch v. United States,
oy Se REESE

White v. United States,
371 F.3d 900 (7th Cir. 2004) .................

Wooley v. Maynard,
GE SEs Pe CE OD ck ctnsds penocenencvesciecsnats

Ex parte Young,
Be Oe a Re CID venice yctécssnctinonaans

Statutes, Rules, ané Guidelines

SR TEAS, Bree cikanisinieensncocsenatinnst
BB ETA Ee seve secsniiorsicisissineneieaan
Rk 5 oe SNe iEe Saaeriee oe
BD UE TG. © Be sh vn ciciscsscivcnssnncomandonmnaa

Fed. R. Crim. P. 11, Advisory Committee’s
Notes to 1983 Amendment....................

Page(s)

ey

vi

TABLE OF AUTHORITIES—Continued

Page(s)
ces mmnenorccney passim
Tex. Code Crim. P. Art. 44.02 .............0000..0..0..0s00000 14
U.S. Sentencing Guidelines Manual § 3F1.1.............. 8
U.S. Sentencing Guidelines Manual § 5K1.1 ............. 9
Other Authorities
Dept. of Educ., Nat'l Ctr. for Educ.

Statistics, Literacy Behind Bars: Results

From the 2003 National Assessment of

Adult Literacy Prison Survey (2007).................... 24
Dept. of Justice, Bureau of Justice

Statistics, Felony Sentences in State

Se sensunocenence 7
Dept. of Justice, Bureau of Justice

Statistics, Special Report, Defense

Counsel in Criminal Cases (2000) ................-...006.. i)
Dept. of Justice, Bureau of Justice

Statistics, Special Report, Education and

Correctional Populations (2003) .....................000+. 24

Dept. of Justice, Bureau of Justice
Statistics, Special Report, Mental Health
Problems of Prison and Jail Inmates
i cnlameensececosvscouse 25

vil

TABLE OF AUTHORITIES—Continued

Dept. of Justice, Memorandum for All
Federal Prosecutors from the Att’y Gen.,
Department Charging and Sentencing

Fe Fe i erbiitnniddtrtrtctdsntetsseienctes

Nancy J. King, et al., Final Technical
Report: Habeas Litigation in U.S. District
Courts: An Empirical Study of Habeas
Corpus Cases Filed By State Prisoners
Under the Antiterrorism and Effective

Death Penalty Act of 1996 (August 2007)...

Rachel E. Barkow, Separation of Powers and
the Criminal Law,

58 Stan. L. Rev. 989 (2006)....................-....

Robert E. Scott & William J. Stuntz, Plea
Bargaining as Contract,

101 Yale L. J. 1909 (1992)......................006-

Ronald F. Wright, Federal Criminal
Workload, Guilty Pleas, and Acquittals:
Statistical Background, Wake Forest

Univ. Legal Studies Paper (Sept. 2005) .....

Ronald F. Wright, Trial Distortion and the
End of Innocence in Federal
Criminal Justice,

154 U. Pa. L. Rev. 79 (2008)........................

Page(s)

peskens .. 26

viii
TABLE OF AUTHORITIES—Continued

Page(s)

Stephanos Bibas, Plea Bargaining Outside
the Shadow of Trial,
117 Harv. L. Rev. 2463 (2004) ......................06 9, 10

Stephanos Bibas, Regulating the Plea-
Bargaining Market: From Caveat Emptor
to Consumer Protection,
Tes I Oe I ETD viniscinattrccnscncnsintutsdedninenane 8

Susan R. Klein et al., Waiving the Criminal
Justice System: An Empirical and
Constitutional Analysis,
52 Am. Crim. L. Rev. 73 (2015)..................0:000000. 25

University at Albany, Sourcebook of
Criminal Justice Statistics Online, Table
Sa RE REE EE PAIR oN a EE 7

BRIEF OF THE NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS AND THE
AMERICAN CIVIL LIBERTIES UNION AS
AMICI CURIAE IN SUPPORT OF PETITIONER

INTEREST OF AMICI CURIAE '

The National Association of Criminal Defense
Lawyers (NACDL) is a_=e nonprofit voluntary
professional bar association that works on behalf of
criminal defense attorneys to ensure justice and due
process for those accused of crime or misconduct.
NACDL was founded in 1958. It has a nationwide
membership of many thousands of direct members,
and up to 40,000 with affiliates. NACDL’s members
include private criminal defense lawyers, public
defenders, military defense counsel, law professors,
and judges. NACDL is the only nationwide
professional bar association for public defenders and
private criminal defense lawyers.

NACDL is dedicated to advancing the proper,
efficient, and just administration of justice. NACDL
files numerous amicus briefs each year in the U.S.
Supreme Court and other federal and state courts,

| Petitioner’s blanket letter of consent to the filing of amicus
briefs has been filed with this Court. Respondent has consented
to the filing of this brief; written documentation of that consent
is being submitted concurrently. No counsel for a party has
written this brief in whole or in part, and no counsel or party
made a monetary contribution intended to fund the preparation
or submission of this brief. No person or entity, other than the
amici curtae or their counsel, has made a monetary contribution
to this brief’s preparation or submission.

2

seeking to provide amicus assistance in cases that
present issues of broad importance to criminal
defendants, criminal defense lawyers, and the
criminal justice system as a whole.

This case presents a question of great importance
to NACDL and the clients its attorneys represent
because the vast majority of criminal prosecutions
end in guilty pleas. NACDL has a strong interest in
protecting the fairness of plea bargains through clear
default rules that help to level the playing field
between prosecutors and defendants.

The American Civil Liberties Union (ACLU) is a
nationwide, nonprofit, nonpartisan organization with
more than 1.5 million members dedicated to the
principles of liberty and equality embodied in the
Constitution and this nation’s civil rights laws. In
furtherance of those principles, the ACLU has
appeared in numerous cases before this Court, both
as direct counsel and as amicus. This case implicates
several issues of importance to the ACLU’s members,
including ensuring that unconstitutional statutes
that may deter or chill constitutionally protected
activity are reviewed at the earliest possible
opportunity.

Here, NACDL and the ACLU seek this Court’s
confirmation of the Menna-Blackledge default rule
under which a defendant’s right to appellate review
of a claim that a statute is unconstitutional is not
waived sub silentio through an unconditional guilty
plea.

3

INTRODUCTION AND
SUMMARY OF ARGUMENT

Unconditional guilty pleas do not implicitly waive
constitutional challenges to the underlying statute of
conviction. A holding to the contrary would
contravene this Court’s precedents and hinder the
judiciary’s ability to review and strike down
unconstitutional statutes, leaving invalid laws on the
books to wrongly chill lawful conduct. There is no
good reason to shield an unconstitutional criminal
statute from judicial review at the earliest possible
opportunity.

Under Menna v. New York, 423 U.S. 61 (1975)
(per curiam), and Blackledge v. Perry, 417 U.S. 21
(1974), a guilty plea is “an admission of factual guilt,”
which “simply renders irrelevant those constitutional
violations not logically inconsistent with the valid
establishment of factual guilt.” Menna, 423 U.S. at
62 n.2. Thus, a defendant’s claim that his confession
was unconstitutionally coerced is rendered irrelevant
by a guilty plea because it is not logically inconsistent
with factual guilt. See Blackledge, 417 U.S. at 30.
But when “the claim is that the State may not convict
petitioner no matter how validly his factual guilt is
established,” that claim is preserved even after an
unconditional guilty plea. Menna, 423 at 62 n.2. The
claim at issue here—that the statute on which the
conviction is premised is unconstitutional—falls
squarely in the latter category, and therefore should
be preserved.

A guilty plea forecloses trial and sets a new
course, after which a defendant can challenge case-
specific procedural errors relating to his factual guilt
only by expressly preserving his appeal rights under

4d

Rule 11(a)(2). But a guilty plea, without more, poses
no bar to a substantive constitutional challenge to the
statute of conviction, because such a claim goes to the
State’s very power to impose charges and precludes
conviction notwithstanding factual guilt. That is true
both with respect to claims that the statute of
conviction is unconstitutional on its face and those
that the statute is unconstitutional as applied. In
both settings, whether the defendant is factually
guilty is of no moment, because the claim is that the
government lacks the power to prohibit his conduct.
See Haynes v. United States, 390 U.S. 85, 87 n.2
(1968).

Amici therefore fully support Petitioner’s
argument on the merits: An unconditional guilty
plea concedes only factual guilt, and does not,
standing alone, relinquish the right to challenge the
constitutionality of the statute that forms the basis of
the conviction. We write separately to emphasize
that there is nothing to be gained—and much to be
lost—by letting unconditional guilty pleas, like
Petitioner’s here, silently foreclose such challenges.

I. As this Court has recognized, today’s criminal
justice system is largely a system of pleas, not trials.
And plea bargaining does not take place on a level
playing field. Prosecutors typically have greater
resources, more information, and vast discretion in
making charges, thus maximizing their leverage
during negotiations. Studies show that even
defendants who would otherwise be acquitted are
likely to plead guilty, given the realities of an under-
resourced defense bar and the extraordinary power
that prosecutors wield. Both the ubiquity of pleas
and the structural imbalances inherent in the

5

bargaining process demand rules that ensure that
constitutional protections are not too readily elided
through the guilty plea process.

It would make little sense to require a defendant
who does not contest his factual guilt to undertake a
trial merely to preserve a constitutional challenge to
the statute of conviction. Clarifying that
unconditional guilty pleas do not by default waive
substantive challenges to the State’s very power to
bring charges in the first place will ensure that
substantive challenges to the statute of conviction are
heard at the earliest opportunity. Getting
unconstitutional laws off the books sooner rather
than later serves the public interest—and not just the
individual interest of the criminal defendant. This
Court has long recognized that the public interest in
preventing punishment of constitutionally protected
conduct is so strong that it outweighs even the
finality of a conviction. Ex Parte Siebold, 100 U.S.
371, 375-377 (1879). There is no basis for denying
the opportunity to raise the same challenge on direct

appeal.

II. The government’s proposed alternatives to a
presumption of prompt judicial review—relying upon
the prosecutors noblesse oblige to secure a
conditional guilty plea under Rule 11(a)(2), or
attempting to raise a substantive challenge on
collateral review—are inferior alternatives. Neither
procedure guarantees criminal defendants who plead
guilty what is theirs by right: the opportunity to raise
a timely challenge to the State’s imposition of a
punishment that is beyond its authority to impose. If
such a right is waivable at all, it is only through a
knowing, intelligent, and voluntary waiver expressly

6

provided in the plea agreement itself. No such
waiver occurred here.

ARGUMENT

I. THE MENNA-BLACKLEDGE DOCTRINE
SERVES THE PUBLIC INTEREST IN
TESTING THE CONSTITUTIONALITY OF
CRIMINAL STATUTES

Plea bargaining is central to today’s criminal
justice system. Who goes to prison, and for how long,
is largely determined through the plea-bargaining
process. In that context, the Menna-Blackledge
doctrine plays a critical role in preserving challenges
to the constitutionality of criminal statutes—and
ensuring that lawful conduct is not chilled—by
helping to strike down unconstitutional laws as soon

as possible.

A. Plea Bargaining Dominates The Criminal
Justice System

This Court has recognized that the 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). Following decades of decline, the
percentage of federal criminal cases culminating in a
plea of guilty or nolo contendere has risen since 1980,
as many cases that previously would have gone to
trial are resolved through guilty pleas instead—
including cases that would have resulted in
acquittals. See Ronald F. Wright, T7rial Distortion
and the End of Innocence in Federal Criminal Justice,
154 U. Pa. L. Rev. 79, 90-91, 105-106 (2005). In 1980,

7

just 81% of federal criminal convictions were the
result of guilty pleas.2 According to the most recent
figures available, guilty pleas now account for 97% of
federal convictions.®

State felony convictions tell a similar story. In
1970, it was estimated that between 70 and 85% of
state felony convictions were the result of guilty
pleas. See Brady v. United States, 397 U.S. 742, 752
n.10 (1970). By 2006, 94% of state felony convictions
resulted from pleas of guilty or nolo contendere.‘
Critical constitutional guarantees thus cannot be
given effect without accounting for “the central role
plea bargaining plays in securing convictions and
determining sentences.” Lafler, 566 U.S. at 170; see
also Missouri v. Frye, 566 U.S. 133, 143-144 (2012);
Padilla v. Kentucky, 559 U.S. 356, 373-374 (2010).

Defendants plead guilty at such high rates
because broad criminal statutes and_ severe,
mandatory sentences give prosecutors enormous
leverage over them. See Wright, 154 U. Pa. L. Rev.
at 85. As a result of overlapping criminal statutes, “a
single episode may fall within the definition of
several criminal offenses, ranging from trivial

2 See Ronald F. Wright, Federal Criminal Workload, Guilty
Pleas, and Acquittals: Statistical Background, Wake Forest
Univ. Legal Studies Paper (Sept. 2005), Appendix 1 (Disposition
of Federal Criminal Cases and Defendants, 1871-2002),
http://bit.ly/2r8Q8tg.

3 See University at Albany, Sourcebook of Criminal Justice
Statistics Online, Table 5.34.2010, http://bit.ly/2pPBmnb.

+ Dept. of Justice, Bureau of Justice Statistics, Felony Sentences
in State Courts, 2006, at 1 (2010), http://bit.ly/20oSOEC2.

8

misdemeanors to serious felonies.” Robert E. Scott &
William J. Stuntz, Plea Bargaining as Contract, 101
Yale L. J. 1909, 1962 (1992). At the same time,
mandatory minimum penalties and_ structured
sentencing make sentencing outcomes predictable,
particularly in the federal system. See Stephanos
Bibas, Regulating the Plea-Bargaining Market: From
Caveat Emptor to Consumer Protection, 99 Cal. L.
Rev. 1117, 1128 (2011).

Prosecutors thus have the power to determine the
length of a defendant’s likely sentence through their
charging decisions—and are free to invoke the threat
of greater punishment to induce a plea of guilty. See
Bordenkircher v. Hayes, 434 U.S. 357 (1978). Indeed,
one of the very purposes of longer statutory sentences
is to enhance the already-significant power of
prosecutors by giving them more “plea-bargaining
chips.” Bibas, Regulating the Plea-Bargaining
Market, 99 Cal. L. Rev. at 1128; see also Rachel E.
Barkow, Separation of Powers and the Criminal Law,
58 Stan. L. Rev. 989, 1034 (2006) (“[Ljonger
sentences exist on the books largely for bargaining
purposes.”). And federal prosecutors are required to
use every chip at their disposal: Just last week, the
Attorney General issued a memorandum announcing
that “it is a core principle that prosecutors should
charge and pursue the most serious, readily provable
offense.” Dept. of Justice, Memorandum for All
Federal Prosecutors from the Att’y Gen., Department
Charging and Sentencing Policy (May 10, 2017),
http://bit.ly/2qaeaTG.

On the other side of the ledger, significant
sentencing discounts are available to defendants who
comply with prosecutors’ demands. See, e.g., U.S.

9

Sentencing Guidelines Manual § 3E1.1 (decreasing
the offense level where the defendant “clearly
demonstrates acceptance of responsibility for his
offense”); id. § 5K1.1 (providing for departure from
the guidelines recommendation “[u]pon motion of the
government stating that the defendant has provided
substantial assistance in the investigation or
prosecution of another person”). These developments
have made it extraordinarily costly for a criminal
defendant to refuse a guilty plea. It is therefore
unsurprising that “fewer [have] paid the price each
year.” Wright, 154 U. Pa. L. Rev. at 85.

The pressure to plead guilty is particularly acute
for indigent defendants. Overburdened public
defenders often lack the time and resources necessary
to try cases or to negotiate more favorable plea
agreements for their clients. See Stephanos Bibas,
Plea Bargaining Outside the Shadow of Trial, 117
Harv. L. Rev. 2463, 2479-2480 & n.60 (2004). Court-
appointed counsel are subject to similar pressures.
See id. at 2477. Indigent defendants therefore plead
guilty at higher rates than other defendants. See
Dept. of Justice, Bureau of Justice Statistics, Special
Report, Defense Counsel in Criminal Cases, at 8
(2000), http://bit.ly/2oQCWES8 (“State and Federal
inmates who used public attorneys were less likely
than those with private attorneys to have been tried

by jury.”).

These dynamics—broad and overlapping criminal
statutes, severe mandatory minimum sentences,
“acceptance of responsibility” sentencing discounts,
and often-inadequate representation—not only place
increased pressure upon indigent defendants to plead
guilty, but may also decrease the quality of bargains

10

that are offered to them. After all, prosecutors have
little reason to offer concessions to defendants who
are already under tremendous pressure to plead. See
Bibas, Plea Bargaining Outside the Shadow of Trial,
117 Harv. L. Rev. at 2477.

Given these power imbalances, and assuming it is
even constitutionally permissible to foreclose
substantive constitutional challenges to criminal
statutes when defendants elect to concede factual
guilt and forgo a trial, it should be the government’s
burden to negotiate an express waiver, rather than
the defendant’s obligation to try to secure a
conditional plea. See also infra, at 21-22. That
default rule helps to cabin the “coercive power of
criminal process” that prosecutors already exert.
Town of Newton v. Rumery, 480 U.S. 386, 400 (1987)
(O’Connor, J., concurring).

B. Post-Plea Challenges To Unconstitutional
Statutes Are Important

Given the preeminent role of pleas in the criminal
justice system, it would make little sense to require a
defendant who does not contest his factual guilt to
undertake a trial merely to preserve a constitutional
challenge to the statute of conviction. And that
applies to both facial and as-applied challenges:
Whether facial or as-applied, challenges to the
constitucionality of the statute of conviction place at
issue the government’s power to prohibit conduct, not
factual guilt. See Pet’r’s Br. at 42-44. This Court’s
precedents confirm as much, as Menna and Haynes,
where the Court heard substantive constitutional
challenges on direct appeal notwithstanding a guilty
plea, were both as-applied challenges. Id. at 42-43.

11

But aside from wasting judicial resources, the
D.C. Circuit’s holding that an unconditional guilty
plea forfeits a constitutional challenge to the statute
of conviction deprives courts of the opportunity to
resolve important constitutional issues at the earliest
possible opportunity—and within a context devoid of
factual disputes. Landmark rulings been made in
cases involving post-plea constitutional challenges,
and permitting such challenges is consistent with the
admonition that, when the Constitution places
certain conduct beyond the power of the government
to punish, there “is little societal interest in
permitting the criminal process to rest at a point
where it ought properly never to repose.” Welch v.
United States, 136 S. Ct. 1257, 1266 (2016) (quoting
Mackey v. United States, 401 U.S. 667, 693 (1971)
(opinion of Harlan, J.)).

1. Permitting challenges to the constitutionality of
a statute on direct appeal following a guilty plea
furthers the strong public interest in determining the
constitutionality of criminal statutes sooner rather
than later. This Court has often recognized the
imperative to provide early relief from an
unconstitutional statute, lest protected behavior—.e.,
behavior beyond the government’s power to punish—
be chilled or deterred. That principle applies with
special force where, as here, a criminal conviction,
and the consequent loss of liberty, are at stake.

Thus, for example, this Court’s precedents permit
pre-enforcement review of the constitutionality of
criminal statutes, even in the face of federalism
concerns. When prosecution is threatened under a
statute, it “is not necessary that {a person] first
expose himself to actual arrest or prosecution to be

12

entitled to challenge a statute that he claims deters
the exercise of his constitutional rights.” Susan B.
Anthony List v. Driehaus, 134 S. Ct. 2334, 2342
(2014) (quoting Steffel v. Thompson, 415 U.S. 452,
459 (1974)); see also Wooley v. Maynard, 430 U.S.
705, 710 (1977). That is so even when it is a state
prosecution that is threatened, because “a refusal on
the part of the federal courts to intervene when no
state proceeding is pending may place the hapless
plaintiff between the Scylla of intentionally flouting
state law and the Charybdis of forgoing what he
believes to be constitutionally protected activity.”
Steffel, 415 U.S. at 462.

Relatedly, in the First Amendment context, courts
may review claims that a statute is facially overbroad
even when presented by a plaintiff to whom the
statute could constitutionally be applied. Under the
overbreadth doctrine, “persons who are themselves
unharmed by the defect in a_ statute” may
“nevertheless . . . challenge that statute on the
ground that it may conceivably be applied
unconstitutionally to others, in other situations not
before the Court.” Board of Trustees of State Univ. of
N.Y. v. Fox, 492 U.S. 469, 484 (1989) (internal
quotation marks omitted). Waiting for the perfect
plaintiff—who may never materialize because the
statute deters his or her protected speech—makes no
sense when the constitutional harm would otherwise
go unremedied. “|The possible harm to society in
permitting some unprotected speech to _ go
unpunished is outweighed by the possibility that
protected speech of others may be muted and
perceived grievances left to fester because of the
possible inhibitory effects of overly broad statutes.”
Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).

13

Similarly, the foundational doctrine of Ex parte
Young, 209 U.S. 123 (1908), permitting federal courts
to enjoin the enforcement of state statutes on any
constitutional ground, rests on the premise that
federal courts should be open early to claims that a
state prosecution would be unconstitutional, rather
than require an individual or company to “await
proceedings against the company in a state court,
grounded upon a disobedience of the act, and then, if
necessary, obtain a review in this court by writ of
error to the highest state court.” Jd. at 165. The
“great risk” of wrongly imposed punishment,
including fines and imprisonment, overrides even
Eleventh Amendment concerns. Ibid.

A direct appeal challenging the constitutionality
of a statute following an unconditional guilty plea
serves this same goal of preventing unnecessary
constitutional harm. In such a case, the individual
has risked more than those for whom prosecution is
merely threatened, by conceding his factual guilt (and
the authority of the government to punish him if his
constitutional argument is wrong). There is no
reason to require a defendant to expend resources on
a trial when there are no facts to find, just to bring a
challenge on direct appeal. And there is every reason
not to: Post-plea appeals further the strong public
interest in early invalidation of unconstitutional
statutes and present an excellent opportunity to
resolve constitutional questions in a case where the
facts are undisputed.

This Court’s cases reveal as much. Landmark
rulings have been made in cases in which individuals
entered unconditional guilty pleas and _ then
challenged the constitutionality of the statutes under

14

which they were convicted. For example, after their
motions to dismiss the charges on constitutional
grounds were denied, the petitioners in Lawrence v.
Texas, 539 U.S. 558 (2003), both entered pleas of nolo
contendere to the criminal charges against them for
violating the Texas anti-sodomy law, id. at 563,
which under Texas law automatically preserved all
issues previously asserted by written motion, Tex.
Code Crim. P. Art. 44.02. Their appeals following
those pleas resulted in this Court’s ruling that the
petitioners’ “right to liberty under the Due Process
Clause gives them the full right to engage in their
[private sexual] conduct without intervention of the
government,” Lawrence, 539 U.S. at 578, overruling
Bowers v. Hardwick, 478 U.S. 186 (1986). Moreover,
because it appears that the Lawrence petitioners
were sentenced only to fines, federal habeas review
would not have been available to them.

There are other examples, too, in which a
defendant who did not contest his or her factual guilt
vindicated important constitutional rights. In the
landmark decision Loving v. Virginia, 388 U.S. 1
(1967), this Court struck down Virginia’s
unconstitutional antimiscegnation statute and
reversed the convictions of the petitioners on
collateral review, notwithstanding the fact that they
had pleaded guilty. See id. at 3; see also United
States v. Knowles, 29 F.3d 947, 950-951 (5th Cir.
1994) (reversing conviction under Gun Free School
Zones Act on direct appeal following unconditional
plea).

It is not uncommon for a defendant to concede
factual guilt, even if he has a_ substantial
constitutional claim that he should be allowed to

15

engage in the conduct the state seeks to prohibit.
Permitting direct appeals on such claims following
unconditional guilty pleas allows the courts to
vindicate both the individual’s interest in not being
prosecuted for protected conduct, and _ society’s
interest in removing unconstitutional statutes from
the books at the earliest opportunity.

2. The government appears to concede that a
defendant who pleaded guilty and “seeks the benefit
of a substantive ruling establishing that the statute
of conviction is unconstitutional” could “seek” relief
on collateral review—if a different defendant secured
that constitutional ruling first. Br. in Opp. at 18.
That is the correct rule, provided that the petitioner
is otherwise able to overcome the procedural hurdles
to relief. In Bousley v. United States, 523 U.S. 614
(1998), for example, this Court held that a defendant
who pleaded guilty to use of a firearm was entitled to
review of his habeas petition on the merits, if he
could show that a subsequent decision limiting the
scope of conduct proscribed by the statute of
conviction rendered him actually innocent of the
charge. Id. at 616. In reaching that conclusion, this
Court emphasized that, where there has been a
subsequent decision holding that “a substantive
federal criminal statute does not reach certain
conduct,” such that the petitioner is able to show that
he is actually innocent of the crime with which he has
been convicted, it would be “inconsistent with the
doctrinal underpinnings of habeas review’ to
preclude a court from reaching his claim on the
merits. /d. at 620-621.

But the government’s suggestion that defendants
like Petitioner simply wait for somebody else to

16

challenge the statute of conviction is hardly sufficient
to protect the relevant constitutional interests. The
reason why substantive rules can be used to vacate
even decades-old convictions (and thus override the
State’s interest in finality), is that they conclusively
establish that a defendant’s confinement is
unlawful—and has always been unlawful—rather
than simply raise the risk that it might be inaccurate.
Montgomery v. Louisiana, 136 S. Ct. 718, 729-730
(2016). That rationale applies with equal force in the
context of a direct appeal where, as here, a defendant
maintains that a statute is unconstitutional—a
paradigmatic substantive rule. Welch, 136 S. Ct. at
1265 (“[Cjonstitutional determinations that place
particular conduct or persons covered by the statute
beyond the State’s power to punish” are substantive
rules.).

Whatever finality interest might be secured by a
guilty plea, it is manifestly less than the interest in
finality of convictions after direct review, which must
nevertheless give way to claims of substantive
unconstitutionality. Montgomery, 136 S. Ct. at 730.
The government should not be able to insist that a
defendant wait in jail for someone else to secure a
substantive constitutional ruling (see Br. in Opp. at
18), simply because the defendant does not contest
the factual allegations against him.

This Court has explained that collateral attack is
available after a guilty plea when the plea was not
knowing and voluntary, or “where on the face of the
record the court had no power to enter the conviction
or impose the_ sentence’—citing Menna and
Blackledge as examples of the latter condition.
United States v. Broce, 488 U.S. 563, 569, 574 (1989).

17

A court therefore lacks the power to enter a
conviction where, as here, the statute of conviction is
unconstitutional. See Montgomery, 136 S. Ct. at 730
(A “conviction under an unconstitutional law is not
merely erroneous, but is illegal and void, and cannot
be a legal cause of imprisonment.”) (internal
quotation marks omitted).

The Menna-Blackledge distinction between claims
that are inconsistent with factual guilt (barred) and
claims that require relief even if factual guilt is
established (not barred) is therefore analogous to the
procedural/substantive distinction in the habeas
context. Procedural rules regulate the “manner of
determining the defendant’s culpability” and merely
“raise the possibility that someone convicted with use
of the invalidated procedure might have been
acquitted otherwise.” Montgomery, 1368. Ct. at 730
(emphasis and internal quotation marks omitted).
They are “not logically inconsistent” with factual
guilt. Menna, 423 U.S. at 62 n.2. Substantive rules,
on the other hand, “stand in the way of conviction”
even “if factual guilt is validly established.” I[bid.; see
also Montgomery, 136 S. Ct. at 730 (recognizing that
there is no possibility of a “valid result” “where a
substantive rule has eliminated a State’s power to
proscribe the defendant’s conduct”).

The same societal interest and constitutional
imperative recognized in habeas cases as requiring
relief from even decades-old convictions also favors
not barring adjudication of substantive constitutional
claims on direct appeal simply because a defendant

18

entered an unconditional guilty plea.© To deprive a
defendant of his right to challenge the statute of
conviction on direct appeal merely because he does
not contest factual guilt would allow the State to
punish conduct that it may not be permitted to
punish in the first place—all without appellate
review. There is no legitimate rationale for
precluding such claims on direct appeal.

Il. THE GOVERNMENT’S PROPOSED
ALTERNATIVES ARE NO SUBSTITUTE FOR
DIRECT APPEAL

The government has suggested that curtailing the
Menna-Blackledge doctrine will have “limited
practical importance” because defendants can choose
to enter a conditional guilty plea under Federal Rule
of Criminal Procedure 11(a)(2) or seek collateral relief
from their convictions in the event that some other
defendant has succeeded in a constitutional challenge
to the same statute. Br. in Opp. at 18. But neither
the conditional plea mechanism set forth in Rule

’ The Menna-Blackledge test turns upon whether the claim at
issue is “logically inconsistent with the valid establishment of
factual guilt.” Menna, 423 U.S. at 62 n.2. The language from
Menna referring to the State being precluded “from haling a
defendant into court on a charge,” id. at 62, was not meant to
limit the scope of issues appealable from unconditional pleas.
But even if the Court were to agree that only those
constitutional challenges that prohibit a State “from haling a
defendant into court” can be appealed, challenges to the
constitutionality of the convicting statute would satisfy that
test. When a statute is unconstitutional, the government never
had the power to proscribe that conduct, and the government
violates the Constitution by haling a defendant into court to
defend conduct that is constitutionally protected.

19

11(a)(2) nor collateral review procedures provide
meaningful alternatives to direct appeal. If this
Court affirms the limitations that the D.C. Circuit
grafted on to the Menna-Blackledge doctrine, a
crucial mechanism for assessing the constitutionality
of criminal] statutes will simply be lost.

A. Rule’ 11(a)(2) Does Not Provide A
Meaningful Alternative To Direct Appeal

The government maintains that Rule 11(a)(2)
provides an adequate opportunity for defendants to
preserve constitutional claims in the context of a
guilty plea, and that, in effect, the burden should be
on the defendant to invoke this rule if he or she seeks
to pursue a constitutional challenge. But that
argument places too much weight on the availability

of Rule 11(a)(2).

To begin with, Rule 11(a)(2) has no bearing on a
state defendant's guilty plea, and therefore provides
no general solution to the problem. Conditional plea
mechanisms vary by state, see People v. Neuhaus,
240 P.3d 391, 394-395 (Colo. Ct. App. 2009)
(surveying state law of conditional pleas), and several
states do not permit them at all, see, e.g., State v.
Keohane, 814 A.2d 327, 329 (R.I. 2003) (per curiam).
Thus, even assuming that the government is correct
that Rule 11(a)(2) obviates the need for the Menna-
Blackledge doctrine (and it is not), that argument, by
its own terms, applies only to those defendants lucky
enough to be charged in jurisdictions that allow
conditional pleas in the first place.

In any event, while Rule 11(a)(2) provides a
limited mechanism for federal defendants who plead
guilty to preserve certain claims for appeal, it does

20

nothing to alter a federal criminal defendant’s right
to challenge the constitutionality of the statute under
which he has been convicted. Nothing in the text of
the rule even suggests that such challenges are
irrevocably waived if not preserved in the form of a
conditional plea. To the contrary, the Advisory
Committee on Rules has expressly stated that,
contrary to the government’s position here,
“[s]ubdivision 11(a)(2)...should not be interpreted
as either broadening or narrowing the Menna-
Blackledge doctrine or as establishing procedures for
its application.” Fed. R. Crim. P. 11, Advisory
Committee’s Notes to 1983 Amendment (emphasis

added).

That is not surprising. The conditional plea
mechanism provided for by Rule 11(a)(2) is a poor
substitute for direct appeal. The practical effect of
requiring defendants to obtain conditional pleas
would be the near-elimination of such challenges
altogether. Rule 11(a)(2) is “intended to benefit
courts and prosecutors, not defendants.” Gould v.
United States, 657 F. Supp. 2d 321, 330 (D. Mass.
2009). Thus, the rule provides that a conditional
guilty plea may be entered only “[w]ith the consent of
the court and the government.” Fed. R. Crim. P.
1l(a)(2). A prosecutor may withhold such consent
“for any reason or for no reason at all.” United States
v. Fisher, 772 F.2d 371, 374 (7th Cir. 1985) (per
curiam). Moreover, “[clonditional pleas are not
commonly offered by most prosecutors.” United
States v. Drayton, No. 12-2568-KHV, 2013 WL
789027, at *5 n.5 (D. Kan. Mar. 1, 2013); see also
United States v. Carvajal-Mora, No. 08-CR-0059-
CVE, 2009 WL 5171822, at *6 (N.D. Okla. Dec. 21,

21

2009); Mackins v. United States, No. 04-cv-261, 2009
WL 1563920, at *5 (W.D.N.C. June 1, 2009).

Nor are courts under any obligation to enter such
pleas. Even a “blanket prohibition” on the entry of all
conditional pleas may not “constitute error in any
given case.” United States v. Davis, 900 F.2d 1524,
1527-1528 (10th Cir.), cert. denied, 498 U.S. 856
(1990) (finding no error where district court refused
to enter conditional plea on the ground that it would
enable the defendant to appeal pretrial orders
“while ... serving his time”). Requiring a defendant
to follow the procedure set forth in Rule 11(a)(2) to
preserve constitutional challenges to his statutes of
conviction would effectively leave him “at the mercy
of noblesse oblige.” United States v. Stevens, 559 U.S.
460, 480 (2010). Fundamental constitutional rights
should not be so readily swept aside based on the
mere possibility that prosecutors—who already have
enormous leverage to extract unconditional guilty
pleas—might choose to offer federal defendants a
conditional plea under Rule 11(a)(2).

To be sure, some constitutional mghts can be
waived, assuming that waiver is knowing, intelligent,
and voluntary, and made with sufficient awareness of
the likely consequences. See Brady v. United States,
397 U.S. 742, 748 (1970); Bousley, 523 U.S. at 620.
The Menna-Blackledge doctrine is best read as
providing a default rule: A guilty plea, without more,
cannot waive challenges that are not inconsistent
with factual guilt, such as challenges to the
constitutionality of the statute of conviction. That
default rule does not bar waivers of substantive or
constitutional claims, but puts the burden on the
prosecutor to obtain from the defendant an express,

22

unambiguous waiver rather than tasking an already
out-leveraged defendant with seeking’ the
prosecutor's uncertain permission to preserve claims
under a Rule 11(a)(2) conditional plea. Because plea
bargains, like any contract, are negotiated in the
shadow of the law, placing the burden on prosecutors
to secure knowing waivers helps level the playing
field.

The facts of this case illustrate why such a clear
default rule is necessary—and why any ambiguity as
to the scope of the rights being waived should be
construed against the government, which holds most
of the cards in the plea bargaining process.
Petitioner, proceeding pro se, vigorously litigated his
claims challenging the _ constitutionality of
Section 5104 before accepting a plea agreement.
That plea agreement did not expressly waive
Petitioner’s right to appeal the trial court’s resolution
of those constitutional claims. To the contrary, the
agreement expressly disavowed any “promises,
understandings, or representations .. . other than
those contained in writing herein.” J.A. 159.

The government relies on language in the
agreement stating “[y]ou understand that by pleading
guilty in this case you agree to waive certain rights
afforded by the Constitution.” J.A. 156. But that
language does not on its face explain which “certain”
constitutional claims were being waived, and is
included in a section of the plea agreement entitled
“Trial Rights”—strongly indicating that what
Petitioner was waiving was only his constitutional
trial rights, not his right to challenge the
constitutionality of Section 5104. The “Appeal
Rights” section of the agreement, moreover, states

23

only that Petitioner waived “the right to appeal the
sentence in this case.”® J.A. 157.

That is not an express waiver of all appeal rights.
It is a fair reading of this record that the government
knew or should have known that Petitioner did not
intend to give up his claims’ regarding the
constitutionality of Section 5104—and that he might
have refused to plead guilty if he understood that to
be the case. The government had ample opportunity
to clarify these issues, both in drafting the plea
agreement and during the course of the colloquy. It
should not now benefit from its failure to do so—
much less from its decision not to offer Petitioner,
who proceeded pro se below, a Rule 11(a)(2)
conditional plea deal.

B. Collateral Review Is No Substitute For
Direct Appeal Under Menna And
Blackledge

The government also suggests that a defendant
raising a substantive constitutional challenge to the
statute of his conviction could, under certain
circumstances, seek relief from conviction on
collateral review, based on a constitutional ruling
secured by some other defendant. Br. in Opp. at 18.
But a defendant should not have to wait for someone

6 Nor was Petitioner clearly informed that those claims were
being waived. To the contrary, he was told that he could
“appeal... if [he] believe[{d] that [his] guilty plea was somehow
unlawful.” S.A. 102 (emphasis added). Petitioner immediately
thereafter challenged the lawfulness of his conviction on appeal,
providing further evidence that he never intended to waive
those claims.

24

else to obtain a constitutional ruling—an uncertain
prospect at best-—-in order to challenge his statute of
conviction. Furthermore, collateral review, if it is
available at all, provides a wholly inadequate
substitute for direct appeal. Collateral review
procedures present enormous, often insurmountable,
obstacles to prisoners. Forcing defendants who
contest the constitutionality of their statute of
conviction to pursue their claims on collateral review
would drastically reduce the likelihood of those
claims being heard at all.

To begin with, there are considerable practical
hurdles even to bringing a petition for collateral
relief. Most significantly, prisoners seeking collateral
review of their convictions have limited resources at
their disposal—and most importantly, no right to
counsel, see Murray v. Giarratano, 492 U.S. 1, 3-4
(1989); Penn. v. Finley, 481 U.S. 551, 555 (1987).
Prisoners are thus largely on their own when it comes
to navigating the various legal] hurdles to collateral
relief, of which there are many.’

7 Navigating the complex collateral review process can be
challenging even for an experienced advocate. For many state
and federal prisoners, those challenges may well be
insurmountable. State and federal prison populations are
significantly less educated than the general population. See
Dept. of Justice, Bureau of Justice Statistics, Special Report,
Education and Correctional Populations, at 2 (2003),
http://bit.ly/2kRy7dn. Prisoners are also more likely to have
diagnosed learning disabilities, less likely to have basic literacy
skills, See Dept. of Educ., Nat'l Ctr. for Educ. Statistics, Literacy
Behind Bars: Results From the 2003 National Assessment of
Adult Literacy Prison Survey, at 27, 29 (2007),
http://bit.ly/2oGboX6, and more likely to suffer from mental

25

As an initial matter, most U.S. Attorney’s offices
now include collateral attack waivers in their
boilerplate plea agreements (as does the plea
agreement in this case, see J.A. 157). See Susan R.
Klein et al., Waiving the Criminal Justice System: An
Empirical and Constitutional Analysis, 52 Am. Crim.
L. Rev. 73, 87 (2015) (in survey of 114 boilerplate plea
agreements including at least one from each federal
district, seventy-seven contained collateral attack
waiver). Whether raising their own constitutional
claims or seeking the benefit of a substantive rule
secured by another defendant, federal prisoners who
have not waived their right to collateral review must
still overcome an array of procedural obstacles,
including a strict, one-year limitations period, 28
U.S.C. § 2255(f), and a near-total bar on subsequent
or successive petitions, id. § 2255(h). Put simply, it
would be exceedingly difficult for a federal prisoner to
obtain relief from his conviction on collateral review.

State prisoners seeking habeas relief have an even
more arduous path. In addition to facing many of the
same obstacles as federal prisoners, see 28 U.S.C.
§ 2254(b) (limitation on successive habeas corpus
applications), id. § 2244(d)(1) (one-year statute of
limitations), state prisoners must also contend with
requirements “ranging from exhaustion of remedies,
to fair presentment obligations, to procedural default
rules, and above all, to the strong deference to the
conclusions of fact and law reached by the state

—.—$—$ Sr

illness. See Dept. of Justice, Bureau of Justice Statistics, Special
Report, Mental Health Problems of Prison and Jail Inmates, at
1, 3 (2006), http://bit.ly/2eRfbf2.

26

courts,” White v. United States, 371 F.3d 900, 903
(7th Cir. 2004) (Wood, J., concurring).

Any one of these requirements standing alone
would present a significant barrier to relief. For
example, it takes the average non-capital habeas
petitioner more than six years just to exhaust state
remedies. See Nancy J. King, et al., Final Technical
Report: Habeas Litigation in U.S. District Courts: An
Empirical Study of Habeas Corpus Cases Filed By
State Prisoners Under the Antiterrorism and Effective
Death Penalty Act of 1996, at 4 (August 2007),
http://bit.ly/2pHigef. Cumulatively, these hurdles
will often prove insuperable. See Edwards v.
Carpenter, 529 U.S. 446, 454 (2000) (Breyer, J.,
concurring) (“[T]he complexity of this Court’s habeas
corpus jurisprudence...in practice can deny the
fundamental constitutional protection that habeas
corpus seeks to assure.”).

The government never explains why its proposed
wait-for-a-substantive-decision-in-another-case rule
could possibly promote judicial efficiency or public
policy. But given the practical and legal barriers
discussed above, its suggestion that the availability of
collateral review somehow minimizes the impact of
the lower court’s evisceration of the Menna-
Blackledge doctrine rings hollow.

CONCLUSION

The judgment of the court of appeals should be
reversed.

27

Respectfully submitted.
JONATHAN HACKER DANIEL N. LERMAN
Co-CHAIR, AMICUS Counsel of Record
COMMITTEE KATHLEEN SHEN

NATIONAL ASSOCIATION ROBBINS, RUSSELL,
OF CRIMINAL DEFENSE ENGLERT, ORSECK,
LAWYERS UNTEREINER & SAUBER
1625 Eye Street, N.W. LLP
Washington, DC 20006 1801 K Street, N.W.
Washington, DC 20006
DAVID D. COLE (202) 775-4500
AMERICAN CIVIL dlerman@robbinsrussell.com
LIBERTIES UNION

FOUNDATION Counsel for the National
Association of Criminal
915 15th Street N.W. Dutnee Lamers

Washington, DC 20005
RUTHANNE M. DEUTSCH

— a HYLAND Hunt
- ERICAN cao DEUTSCH HUNT PLLC
IBERTIES UNION 300 New Jersey Avenue,
FOUNDATION N.W.
125 Broad Street Suite 900

New York, NY 10004 Washington, DC 20001

Counsel for the American
Civil Liberties Union

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0713%3A11. Public record. Not legal advice.