Sunday, May 21, 2017

Better sentences with open pleas.

Taking up where the last post left off . . . plea agreements and appellate waivers. The prosecution often insists on broad-ranging appellate waivers when the parties enter a plea agreement. That is one reason our default position should be open (or blind) pleas rather than plea agreements. This default position is even more compelling since AG Sessions has directed the USAOs to seek the most serious punishment available. Not much room for meaningful negotiation there.

Another pretty good reason is that our clients receive lower sentences with open pleas. The numbers bear this out. The U.S. Sentencing Commission, for all of its other faults, is an excellent source of sentencing data. An analysis of the raw data shows:

     Open pleas accounted for almost a quarter of all federal case resolutions in 2015.

     Overall, opens pleas resulted in lower sentences.

     Plea agreements resulted in higher sentences.

The raw data comes from the Sentencing Commission, but the analyses is provided by  Alan Ellis, Esq., and Mark H. Allenburg, in the Westlaw Journal, White Collar Crime: Expert Analysis,Vol. 31, Issue 7, March 2017. This article has more details on fraud and tax sentences, as well as helpful graphs like this one. The raw data should be available to analyze other specific offenses, as well.   


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