By Margo Kirchner
Sentences in criminal cases in excess of plea-bargained terms should cease, says a Wisconsin attorney in an article written for the University of Illinois Law Review.
Kenosha criminal defense lawyer Michael D. Cicchini labels as “deal jumping” the practice by which a judge accepts a defendant’s guilty plea yet hands down a sentence harsher than agreed upon by the defendant and prosecutor. Judges who so act are “deal jumpers,” which is the name of Cicchini’s article.
According to Cicchini, deal jumping is fundamentally unfair to defendants and harmful to the criminal justice system, as more than 95% of cases are resolved by plea bargains. Yet the practice is permitted in several states, including Wisconsin, which is Cicchini’s focus.
Cicchini advocates for state legislative reform to eliminate deal jumping by requiring judges to either (1) approve or reject sentence concessions at the same time they approve or reject plea agreements, or (2) allow defendants to withdraw their pleas if the judge plans to exceed the agreed-upon sentence.
But if legislative change fails to occur, judges should act on their own to end deal jumping and defense attorneys should protect their clients from the practice. Cicchini provides defense lawyers with practical ideas to ensure that defendants receive the benefits of their plea bargains.
To illustrate a deal jump, Cicchini describes a situation in which a defendant charged with multiple counts agrees to plead guilty to one count in exchange for the prosecutor’s dismissal of the other counts (a charge concession) and recommendation of a fine instead of probation or incarceration (a sentence concession). Deal jumping involves sentence concessions.
In some states, says Cicchini, the judge would be required by law to either sentence this defendant to a fine or, if the judge plans to impose a penalty more severe, allow the defendant to withdraw the guilty plea.
However, in other states, such as Wisconsin, regardless of the plea agreement the judge may impose whatever punishment the judge wishes up to the maximum allowed by law, and the defendant has no recourse to withdraw the guilty plea.
Cicchini asserts that Wisconsin “freely permits the most egregious forms of deal jumping when it comes to the sentence.”
Deal jumps are downright wrong for several reasons, Cicchini writes. First, he says, inducing a defendant to waive constitutional rights for an illusory bargain violates basic standards of fairness and the integrity of the justice system. Cicchini points to a statement by the Wisconsin Department of Justice over 30 years ago advocating for an end to deal jumping “’to assure that the plea agreement process is uniform across the state, fair to all parties and deserving of public confidence.’”
Further, a defendant’s rights may turn on distinctions between a prosecutor’s agreement to a sentence versus a weaker promise to simply recommend a sentence, when such distinctions mean little to most defendants.
In addition, says Cicchini, the mere possibility of deal jumping encourages sketchy conduct by prosecutors. Prosecutors practice within a single county; defense attorneys generally practice in multiple courts. As a result, prosecutors may be more knowledgeable about a judge’s inclination to deal jump. They may use that knowledge to induce defendants to plead guilty by offering a favorable sentence recommendation, knowing the judge will likely impose a more severe sentence. In other cases, at sentencing a prosecutor may undercut his own sentence recommendation by pointing out maximum penalties or certain egregious facts, or the prosecutor may relay to the judge the wishes or statement of a victim calling for a lengthier sentence.
On a practical level, deal jumping burdens the justice system with costly appeals and postconviction motions that would otherwise be unnecessary.
Deal jumping is fundamentally unfair to defendants and harmful to the criminal justice system.
Cicchini deems legislative reform to eliminate deal jumping the simplest and best solution. Massachusetts, Kentucky, California and North Carolina statutes provide guidance. Massachusetts law requires that a judge accept or reject the plea agreement, including any sentence concession, before the judge accepts a guilty plea. The other states’ statutes require that a judge who decides to impose a sentence greater than that set forth in the plea agreement afford the defendant the opportunity to withdraw the plea.
Cicchini argues that such reform would not improperly limit judges’ discretion. He points out that judicial discretion is not unlimited: courts are generally bound by charge concessions once the guilty plea is accepted, and mandatory sentences already limit the sentences judges may impose. But, regardless, these legislative solutions maintain judicial discretion. They simply shift the timing of that discretion to an earlier part of the case or provide a remedy for the defendant if the judge exercises her discretion to impose a harsher sentence than the parties negotiated.
Further, says Cicchini, eliminating deal jumping enhances the sense of an independent judiciary rather than one working in conjunction with prosecutors.
Cicchini says the statutory reform he proposes “would be easy to implement, is already used in many states, is supported by some prosecutors, and is consistent with ‘the recommendations of the American Bar Association, the National Conference of Commissioners on Uniform State Laws, and the American Law Institute.’”
Nevertheless, if statutory reform is unlikely, defense counsel should protect clients from deal jumpers and those prosecutors who seek to avoid sentence concessions while technically complying with their plea agreement obligations, says Cicchini.
Defense counsel should, if possible, seek a sentence concession agreement rather than a mere recommendation, he says. If that is not available, defense counsel should seek a judge’s decision on a sentence concession before the guilty plea is accepted or a ruling that the defendant will be allowed to withdraw his plea if the judge imposes a sentence greater than that in the plea agreement.
According to Cicchini, under well-settled Wisconsin law a judge is not required to allow withdrawal of a plea if the judge deal jumps. However, he says, the judge is permitted to do so. In State v. Marinez, 756 N.W.2d 570 (Wis. Ct. App. 2008), the Wisconsin Court of Appeals upheld the trial judge’s authority to provide that opportunity.
In Cicchini’s view, in deal-jumping states, when a judge decides not to follow a sentence concession, she should have the discretion, though not the obligation, to “(1) reject the plea bargain before taking the defendant’s plea or (2) reject it afterwards but then give the defendant the opportunity to withdraw the plea.”
Though Cicchini does not expressly call for Wisconsin judges to cease deal jumping, his discussion of Marinez may be interpreted as an implicit call for judges to alter their practices, at the least allowing withdrawal of a plea in deal jumping situations.
Cicchini recommends that defense counsel file a motion ─ when the defendant is prepared to walk away from the bargain and go to trial and when other factors don’t counsel against it ─ asking the judge to exercise the discretion under Marinez. Cicchini provides a sample motion for counsel in Wisconsin to use as a template for such a motion.
Cicchini predicts that a judge receiving such a motion, “realizing that deal jumping now comes at the high price of a time-consuming jury trial that may even end in acquittal, will eagerly grant the defendant’s motion, accept the defendant’s plea, and adopt the prosecutor’s sentence concession.”
Cicchini’s article is available at https://cicchinilaw.com/articles.
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