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Full-Text Articles in Law
Handling Aggravating Facts After Blakely: Findings From Five Presumptive Guidelines States, Nancy J. King
Handling Aggravating Facts After Blakely: Findings From Five Presumptive Guidelines States, Nancy J. King
Vanderbilt Law School Faculty Publications
This Article reveals how five states with presumptive (binding) sentencing guidelines have implemented the right announced in Blakely v. Washington to a jury finding of aggravating facts allowing upward departures from the presumptive range. Using data provided by the sentencing commissions and courts in Kansas, Minnesota, North Carolina, Oregon, and Washington, as well as information from more than 2,200 docket sheets, the study discloses how upward departures are used in plea bargaining, sometimes undercutting policy goals; how often aggravating facts are tried and by whom; common types of aggravating facts; and the remarkably different, sometimes controversial interpretations of Blakely and …
The Invisible Revolution In Plea Bargaining: Managerial Judging And Judicial Participation In Negotiations, Nancy J. King, Ronald F. Wright
The Invisible Revolution In Plea Bargaining: Managerial Judging And Judicial Participation In Negotiations, Nancy J. King, Ronald F. Wright
Vanderbilt Law School Faculty Publications
This Article, the most comprehensive study ofjudicial participation in plea negotiations since the 1970s, reveals a stunning array of new procedures that involve judges routinely in the settlement of criminal cases. Interviewing nearly one hundred judges and attorneys in ten states, we found that what once were informal, disfavored interactions have quietly, without notice, transformed into highly structured best practices for docket management. We learned of grant-funded problem-solving sessions complete with risk assessments and real-time information on treatment options; multicase conferences where other lawyers chime in; settlement courts located at the jail; settlement dockets with retired judges; full-blown felony mediation …
Plea Bargains That Waive Claims Of Ineffective Assistance - Waiving Padilla And Fry, Nancy J. King
Plea Bargains That Waive Claims Of Ineffective Assistance - Waiving Padilla And Fry, Nancy J. King
Vanderbilt Law School Faculty Publications
This essay addresses the growing use and enforcement of terms in plea agreements by which a defendant waives his right to attack his plea agreement on the basis of constitutionally deficient representation during negotiations leading to the agreement. Contrary to other commentators and some courts, I argue that the Constitution does not forbid the enforcement of such a waiver, and review steps a judge may have to take in order to ensure that a defendant’s express waiver of the right to effective representation during plea bargaining is knowing and voluntary. I also argue that although the Constitution does not prohibit …
Lafler V. Cooper And Aedpa, Nancy J. King
Lafler V. Cooper And Aedpa, Nancy J. King
Vanderbilt Law School Faculty Publications
The Supreme Court in Missouri v. Frye1 and Lafler v. Cooper2 broke new ground by holding for the first time that a defendant’s right to the effective assistance of counsel under the Sixth Amendment can be violated by the loss of a favorable plea deal. Less noted, but also worthy of attention, are Lafler’s implications for federal habeas law. Four Justices protested that the Lafler decision violated the federal habeas statute. At the least, the decision expanded habeas review in unexpected ways. Lafler presented the Supreme Court with an unusual opportunity to declare new doctrine on habeas review
Judicial Oversight Of Negotiated Sentences In A World Of Bargained Punishment, Nancy J. King
Judicial Oversight Of Negotiated Sentences In A World Of Bargained Punishment, Nancy J. King
Vanderbilt Law School Faculty Publications
Prosecutors control statutory ranges by selecting charges. In addition, prosecutors decide whether to use or forego special sentencing statutes that carry mandatory minimum penalties higher than the maximum Guidelines sentence that would otherwise apply to the defendant's conduct, as well as statutes that authorize a sentence lower than the minimum Guidelines sentence that would otherwise apply ("safety valve," "substantial assistance," and Rule 35 reductions). By creating these additional provisions and then removing any effective judicial oversight of their application, Congress has expanded the opportunities for prosecutors to decide when to opt out of the national Guidelines and when to abide …
"Apprendi" And Plea Bargaining, Nancy J. King, Susan Riva Klein
"Apprendi" And Plea Bargaining, Nancy J. King, Susan Riva Klein
Vanderbilt Law School Faculty Publications
Before "Apprendi", prosecutors using recidivism as a club could, and did, regularly insist that defendants admit aggravating facts as part of the plea or face additional time. When the prosecutor's threats of added time were not persuasive and the proof of aggravating facts weak, the defendant prior to "Apprendi" could refuse to admit to the aggravating fact, and plead guilty only to the offense without the aggravating fact. Nothing about "Apprendi" gives additional leverage to the prosecutor in this situation. A defendant who, prior to "Apprendi", decided to risk trial rather than face the aggravated sentence will make the same …
Apres Apprendi, Nancy J. King, Susan R. Klein
Apres Apprendi, Nancy J. King, Susan R. Klein
Vanderbilt Law School Faculty Publications
The Court in Apprendi v. New Jersey, ___ U.S. ___ (2000), held as a matter of due process that any fact, other than a prior conviction, that increases the penalty for an offense beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. In a longer forthcoming article, we attempt to answer some of the profound questions raised by the case concerning constitutional oversight of legislative authority to define what is a "crime," questions that will ripen over the years as legislatures look for ways around the rule and litigants test these legislative …