Thursday, December 15, 2022

Good Article On Open Pleas vs. Negotiated Plea Agreements (12/15/22)

Since charging in federal tax crimes, like other federal crimes, usually results in a plea agreement, I thought readers of this blog might be interested in Alan Ellis and Mark H. Allenbaugh, Plea Bargained vs. Open Pleas: What the Data Reveal (31 Westlaw Journal White-Collar Crime March 2017), here. Ellis and Allenbaugh are recognized experts in sentencing and have collected and analyzed sentencing data presented in the article. The authors say that 97% of all federal defendants plead guilty. Statistics are wobbly things but I am sure the real statistics as most of us would understand them indicate over 90% for federal crimes generally and for tax crimes. So, the question of whether to plea bargain or do an open plea is something lawyers should discuss with the clients.

The authors open with (footnote omitted):

Federal Rule of Criminal Procedure 11 governs guilty pleas for federal criminal defendants. This expert analysis examines the raw sentencing data published by the U.S. Sentencing Commission  regarding the types of pleas defendants enter and the sentences they receive. In particular, we examine the number and rate of pleas under agreements (whether written or oral, conditional or not) versus open pleas. The results are rather surprising, and we suggest there are increasing strategic reasons for defendants to consider pleading open, that is, pleading guilty without benefit of a plea agreement with the government.

JAT Comment:

1. As practitioners and other observers of sentencing know, a plea bargain to reduce the counts of conviction often does not affect the sentence, particularly in tax crimes cases because of the expansive use of “relevant conduct” in calculating the Guidelines sentencing range. The Probation Office PSR often will state that expressly. In most plea agreements, the parties will stipulate the relevant conduct. As the authors note, “Defendants who plead guilty without benefit of a plea agreement by pleading ‘open’ or ‘straight up,’ are not required to admit any relevant conduct.”  Those Defendants “preserved their right to challenge all relevant conduct in terms of sentencing factors.” As a result, the authors conclude that they “have received lower sentences on average,” at least “statistically speaking.”