Guilty pleas and defendant rights

OCTOBER 2017 TERM

For decades, the federal circuit courts have been sharply divided regarding what rights a defendant retains to challenge his or her conviction after entering a guilty plea. This divide is rooted in two U.S. Supreme Court decisions, Blackledge v. Perry, 417 U.S. 21 (1974), and Menna v. New York, 423 U.S. 61 (1975). In Blackledge and Menna, the court allowed defendants who pled guilty to challenge their conviction on constitutional grounds — as opposed to challenges to the factual basis for conviction. Following Blackledge and Menna, the federal courts of appeal disagreed on whether a defendant’s challenge to the constitutionality of his statute of conviction survives a plea or instead is inherently waived as part of the concession of factual guilt.

Because the criminal justice system is “for the most part a system of pleas, not a system of trials,” the importance of this issue to the administration of criminal justice cannot be understated. Lafler v. Cooper, 566 U.S. 156, 170 (2012). According to the amicus brief filed by the National Association of Criminal Defense Lawyers “guilty pleas now account for 97% of all federal convictions.” It is time for clarity on this issue.

The Supreme Court will hear oral argument next month in Class v. United States to decide the specific question of whether a guilty plea inherently waives a defendant’s right to challenge the constitutionality of his or her statute of conviction. Class was arrested and charged with possessing firearms in his car in a publicly accessible parking lot on the Capitol Grounds, where all weapons are prohibited pursuant to statute. Class pled guilty after unsuccessfully arguing that his indictment violated his rights under the Second and 14th Amendments. Class appealed, again asserting his constitutional challenges to the underlying statute of conviction. The U.S. Court of Appeals for the D.C. Circuit, joining the 1st and 10th Circuits, held that a guilty plea inherently waives all constitutional claims and affirmed the judgment.

As a general rule, a counseled and voluntary guilty plea bars a defendant’s collateral attack on his or her conviction. See, e.g., United States v. Broce, 488 U.S. 563, 569 (1989). But, Blackledge and Menna established an exception to this general rule, allowing claims that criminal prosecution violated a defendant’s “right not to be haled into court at all.” On certiorari review, Class argued that a guilty plea, without more, poses no bar to a substantive constitutional challenge to the statute of conviction, and that the government’s proposed alternatives to such challenges on direct review — namely, securing a conditional guilty plea under Rule 11(a)(2) or attempting to raise a substantive challenge on collateral review — are insufficient alternatives. Class argued that an unconstitutional law is no law at all — it cannot support a prosecution, let alone a conviction by plea or trial. Further he argued, prosecution and conviction under an unconstitutional statute violates his right not to be haled into court at all. As argued by Class, it follows that a defendant’s claim that the statute of conviction is unconstitutional falls within the category of constitutional claims recognized in Blackledge, Menna and their progeny as reaching the state’s power to bring the defendant before the court at all.

The circuit split can be divided into three distinct camps. On one side of the divide, the D.C., 1st and 10th Circuits confined Blackledge and Menna to their facts, denying all challenges to a conviction following a guilty plea except for the specific constitutional claims of vindictive prosecution and double jeopardy. However, the largest group — the 3rd, 5th, 6th, 9th and 11th Circuits — have found that a guilty plea does not automatically waive a constitutional challenge to the statute of conviction. Lastly, the 4rth, 7th and 8th Circuits carve out a middle ground, allowing facial, but not as applied, challenges to the statute of conviction.

Our own circuit’s approach, which allows a constitutional challenge to the statute of conviction on appeal after a guilty plea, will likely resonate with the Court’s liberal wing. But, the position staked out by the D.C., 1st and 10th Circuits, which restricts Blackledge and Menna to their facts, will likely gain traction with the conservative members of the Court. For example, before joining the Supreme Court, Justice Neil Gorsuch joined a panel decision of the 10th Circuit in United States v. De. Vaughn that refused to consider a First Amendment challenge to the statute of conviction because the constitutional claim fell outside Blackledge and Menna. 694 F.3d 1141 (10th Cir. 2012). The panel seized on language found in Justice Anthony Kennedy’s opinion in Broce that “[b]y entering a plea of guilty, the accused is not simply stating that he did the discrete acts described in the indictment; he is admitting guilt of a substantive crime,” to uphold the general rule barring collateral attacks on convictions after a guilty plea and to limit any exceptions beyond those specifically implicated by the facts in Blackledge and Menna.

Given the overwhelming percentage of cases resolved by guilty plea, a rule barring constitutional claims on appeal may deprive numerous defendants of meritorious challenges to unconstitutional convictions. Our circuit’s approach protects a defendant’s legitimate constitutional rights on the one hand, while not putting the government to its burden of proof on the other, thereby affording the government the benefit of its bargain. At the very least, the Supreme Court should take this opportunity to resolve the question of what rights remain to challenge a conviction following a defendant’s guilty plea.