Argument analysis: A class on guilty-plea rules
on Oct 5, 2017 at 11:54 am
The pun seems inevitable: In Wednesday morning’s oral argument in Class v. United States, the justices held a short seminar on the implicit effect of criminal guilty pleas. In the end, Rodney Class may win a remand – but unless the Supreme Court writes carefully, the government could inadvertently prevail in a much larger controversy.
What is the “default rule” for the effect of a guilty plea?
In brief (see my preview), Class pled guilty to a federal charge of possessing “readily accessible” firearms on the grounds of the U.S. Capitol. His car, parked in a marked parking lot within walking distance of the congressional buildings in Washington, contained several lawfully owned guns. Class raised a Second Amendment challenge to the statute in a pretrial motion, which the district judge denied. Class then pled guilty to the weapons charge, in return for the government dropping a failure-to-appear charge (Class had refused to appear for his scheduled trial date and had to be arrested again.).
The written plea agreement failed to expressly waive Class’ right to appeal his conviction, even though it recited other waivers. And the district judge’s oral colloquy with Class at the time of his plea was less than clear: The judge told Class that he was giving up “your rights to appeal” or “most of your rights to appeal,” unless “there is some other fundamental defect in these guilty plea proceedings.” Class then filed an appeal presenting his Second Amendment claim that the statute is unconstitutional (as well as a claim that the statute is unconstitutionally vague, although that claim was not discussed at yesterday’s argument). But the government contended, and the court of appeals agreed, that Class’ general guilty plea must “inherently waive” even his constitutional claims.
Oral argument clarified and narrowed the issues
The first question, coming in modest terms from Chief Justice John Roberts, seemed to settle at least one important issue: “I should know this, but I don’t. … [C]an the government specify that those claims [like Class’] are waived?” Jessica Amunson, arguing for Class, immediately responded, “Yes,” such constitutional claims “are waivable.” She made clear that Class’ “contention here is [only] that they were not explicitly waived … and they were not otherwise forfeited by operation of the plea itself.”
Justice Anthony Kennedy also soon clarified that “all we’re talking about” here is “how [Federal] Rule 11[, which governs federal criminal guilty pleas,] is properly interpreted.” Amunson agreed. As Eric Feigin, arguing for the U.S. government, later put it, “states can craft their own procedures in these circumstances.”
Thus this case is not a constitutional one, nor will it bind the states. Instead, it is about what the “default rule” under Rule 11 should be for defendants who plead guilty but do not expressly waive, or preserve, a constitutional challenge to the offense statute.
Justice Stephen Breyer and others repeatedly suggested that “all [the government] ha[s] to do is write” an express waiver “into the plea agreement.” (More on this below.) Moreover, as Feigin later noted in an exchange with Justice Sonia Sotomayor, Congress could amend Rule 11 to make its terms more specific and clear. Nevertheless, as Feigin pointed out at the end of his argument, “25 percent of [guilty] pleas in the federal system don’t even involve plea agreements.” Rather, the defendants plead “open” to the charges, meaning that they simply plead guilty to everything charged in the indictment, with no promises regarding sentencing, which does not require the government’s agreement and occurs most often in less serious cases. Because such no-agreement pleas resolve roughly 18,000 federal cases annually (my estimate, not Feigin’s), the question of what appellate claims are impliedly waived by a general guilty plea is not insignificant.
What’s the rule?
As is often the case when the court is struggling with what “test” to apply, Kennedy pressed Amunson hard on what the court’s “default” standard for preserving claims should be: “What is the rule that … you would propose for us to adopt?” In response, Amunson repeatedly invoked Judge Henry Friendly by name – a tactic that may be losing some force as time goes on, although some past justices have said admiringly that Friendly should have been on the Supreme Court rather than stopping at the U.S. Court of Appeals for the 2nd Circuit. The “Friendly” rule that Amunson suggested? A general guilty plea should not be held to waive an appeal of “[a]ny constitutional ground that … would forever prevent the State from obtaining a valid conviction,” no matter what the facts are.
That standard would fit Class’ Second Amendment argument precisely: He wants to argue that the constitutional “right to bear arms” should be held to invalidate a federal statute that purports to ban mere possession of lawfully owned guns, even on the U.S. Capitol grounds. His argument may not be a winner – and yesterday’s timing was surely uncomfortable in light of the recent Las Vegas massacre and shooting of Representative Steve Scalise. But my reading of the transcript suggests that a majority of justices will favor a ruling that Class should not be precluded from at least presenting his constitutional challenge on appeal, when the issue has been raised in the trial court and no clear express waiver appears in the record.
Indeed, Justice Neil Gorsuch, not predicted to favor criminal defendants generally, came out as a strong advocate for Class today. He indicated that he had “traced” a favorable non-waiver doctrine “all the way back to 1869,” and he expressly agreed with Breyer, who had earlier referred to such a favorable standard. Feigin steadfastly argued that Rule 11 should be read to preclude claims like Class’ unless it is the defendant who expressly reserves them. But Justice Elena Kagan put it succinctly: Although Rule 11 does allow “conditional” guilty pleas that reserve issues for appeal, “it doesn’t say what happens if you don’t do that.” Even Justice Samuel Alito, whose questions demonstrated the difficulties in crafting a specific standard that will not deprive thousands of guilty pleas of finality, did not appear to question the unfairness of precluding the constitutional claim here. (Justice Clarence Thomas as usual said nothing at this argument.)
Appellate plea waivers: An important issue lurking in the background
The justice assigned to write the Supreme Court’s opinion in this case will surely work to find careful language that will narrowly limit appeals after guilty pleas, even if it preserves constitutional challenges to statutes when an express waiver is absent. But even if Class wins a remand to present his constitutional claim on the merits (or at the very least to examine whether his plea was indeed “knowing, voluntary and intelligent”), a much larger issue lurks in the background: the broad validity (or not) of appeal waivers for claims of all kinds.
The validity of broad appeal waivers is undoubtedly not the issue presented in this case, and Sotomayor expressed concern about it being resolved inadvertently. Feigin candidly noted that there is currently law in the lower federal courts that creates “difficulties with appeal waivers” for the government. Not every court accepts broad waivers of all appellate issues in plea agreements, and a number of courts have ruled that “implicit exceptions” to such plea waivers must exist. Meanwhile, the Supreme Court has never ruled clearly that broad plea-bargain waivers – that is, waivers purporting to disallow appeals of broad categories of issues and even of future possibilities that are unknown or unforeseeable – are necessarily valid. Indeed, the American Bar Association has expressed a strong view, in its Standards for Prosecution and Defense lawyers, that some appeal waivers should be impermissible.
Thus when Kagan suggested that a ruling for Class would not open “floodgates” because “it’s in the power of every U.S. Attorney to just write this into the plea agreement,” Feigin quickly expressed the government’s enthusiasm for such a ruling: “Your Honor, if the Court were to say that in its opinion and make that very clear, … that would go a long way toward resolving a lot of the problems.” It seems likely that the government would cherish a “win” on the broad issue of appeal waivers, even if it loses this case because of the murky meaning of Class’ plea colloquy. Sotomayor appeared to recognize the danger of deciding this important issue in a case that does not require it, and the court is usually careful to avoid deciding issues that are argued but that are outside the question presented. I’d expect a footnote reserving the issue and an opinion carefully avoiding any resolution of the question of broad appeal-waiver validity.
