CRUSHING THE SOUL OF FEDERAL PUBLIC DEFENDERS: THE PLEA BARGAINING MACHINE'S OPERATION AND WHAT TO DO ABOUT IT.

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Date: May 2022
From: Fordham Urban Law Journal(Vol. 49, Issue 4)
Publisher: Fordham Urban Law Journal
Document Type: Article
Length: 27,340 words
Lexile Measure: 1990L

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Introduction. 701 I. Lay of the Land 704 A. Explanations for the Decline of Jury Trials. 705 B. Plea Bargaining Machine's Impact on Federal Public Defenders and Their Clients 706 i. Today's Practice Versus Practice During Gideon v. Wainright. 706 ii. Trial Rate's Decline and Public Defender Offices 707 iii. Low Trial Rate's Impact on Assistant Federal Public Defenders 709 C. New Ways to Understand the Decline in Federal Trials 710 i. The Booker Decision, Charging Policy, and Trial Complexity and Expense. 710 1. The Booker Decision. 710 2. DOJ Charging Policy. 711 3. External Factors. 712 a. Improved Technology and Investigations. 712 II. Mandatory Minimums, Sentencing Guidelines, and Fast-Track Programs. 714 A. How the Plea Bargaining Machine Reduced Trial Rates. 714 i. Mandatory Minimums for Drug Offenses 714 ii. Federal Sentencing Guidelines 716 iii. Fast-Track Programs 720 B. How Mandatory Minimums, Sentencing Guidelines, and Fast-Track Programs Fuel the Plea Bargaining Machine in Arizona Drug Cases. 722 i. National Charging Policy and Impact of Defense Attorney Advice 722 ii. Drug Cases in Arizona 724 III. Stigmatizations of African Americans, Latinxs, and American Indians Helped Facilitate the Plea Bargaining Machine. 728 A. Exploitation of Racial Minorities and Resulting Stereotypes 729 i. African Americans. 729 ii. Latinxs. 730 iii. American Indians. 732 B. Plea Bargaining Machine's Racist Outcomes 734 i. Impact of Mandatory Minimums on Racial Minorities 734 ii. Race and the Sentencing Guidelines. 736 iii. Fast-Track Programs Disproportionately Affect Latinxs. 738 IV. Federal Public Defenders and the Plea Bargaining Machine 739 A. Brief History of the Federal Public Defender Program. 739 B. Differences Between Federal and Local Defender Systems 741 C. The Plea Bargaining Machine's Impact on Federal Public Defender Practice 744 i. Federal Defense Practice in Tucson Before the Sentencing Guidelines. 744 ii. Contemporary Federal Public Defender Practice in Tucson. 745 D. Federal Public Defenders and Fast-Track Cases at the U.S-Mexico Border. 748 V. What Can Be Done?. 751 A. Efforts to Eliminate Federal Mandatory Minimums 751 B. How to Battle the Plea Bargaining Machine 754 i. The Importance of Training. 754 ii. Areas for Training to Improve Pre-Trial Representation 755 1. Advising Clients on the Benefits of a Plea Offer. 755 2. Advising Clients to Go to Trial. 756 3. The Ability to Screen Cases for Trial 757 4. Disclosing Trial Experience to Clients 758 5. The Importance of Deep Work for Public Defenders 758 6. Speaking to the Media. 759 Conclusion. 760

INTRODUCTION

The federal criminal trial rate in the United States was 14% in 1990 and 5% in the year 2000. (1) In 2019, it was 2.4% (2) nationally and 0.7% in the District of Arizona, where this Author practices. (3) These numbers mean assistant federal public defenders (AFPDs) are not in trial yearly. I know recently retired AFPDs who tried only one or two cases during their last decade of work. (4) AFPDs in the 1970s and early 1980s tried approximately one case per month. (5) Before becoming an AFPD, I was fortunate to have averaged...

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Gale Document Number: GALE|A705927139