Defense Counsel and Sentencing: Tenth Circuit Indicates That Lawyers Must Advise Clients on Relevant Conduct

In a criminal-justice system dominated by plea-bargaining and harsh sentencing laws, the core responsibility of a defense lawyer is no longer to seek acquittals at trial, but to minimize the harm suffered by the client as a result of a conviction.  Ineffective assistance law should reflect this reality.  Padilla v. Kentucky and its progeny (see this post) suggest that there may indeed be a growing appreciation in the courts that defense counsel must be knowledgeable and provide good advice about the crucial things that happen to a defendant post-conviction.  Although the courts have long recognized as much in capital cases, it is good to see more attention now being given to the role of defense counsel in the noncapital setting.

Complementing what is happening in the collateral-consequences cases, the Tenth Circuit recently ruled that a defendant’s right to effective assistance was violated when his lawyer did not warn him of the dangers of confessing to uncharged criminal conduct during a presentence investigation meeting with a probation officer. 

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Seventh Circuit Reverses Position on Fast-Track Sentencing

Last week, in United States v. Reyes-Hernandez (No. 09-1249), the Seventh Circuit overruled United States v. Galicia-Cardenas, 443 F.3d 553 (7th Cir. 2006), and held that sentencing judges may consider “the disparate treatment of immigration defendants that is created by fast-track programs in determining whether a Guidelines sentence is greater than necessary under the § 3553(a) factors” (30).  This is an important decision that deepens a circuit split on the sentencing of illegal reentrants into this country. 

At least sixteen districts, including the Mexican border districts, have developed fast-track programs that offer extraordinary sentencing benefits for illegal reentrants who plead guilty in an especially expedited fashion.  (For background, see my article at 27 Hamline L. Rev. 357.)  However, many other districts, including all of the Seventh Circuit districts, do not offer defendants the fast-track option, which creates wide sentencing disparities in illegal reentry cases.  When the federal sentencing guidelines were converted from mandatory to advisory in 2005, many defendants in non-fast-track districts argued that judges ought to give them the fast-track benefit in order to mitigate the disparities.  Appellate courts, however, uniformly rejected these arguments prior to 2007, when the Supreme Court reemphasized the discretionary nature of federal sentencing in Kimbrough v. United States, 552 U.S. 85.  Post-Kimbrough, three circuits, now joined by the Seventh, have ruled that sentencing judges may consider the fast-track disparities.   

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A New Approach to Interpreting the Wisconsin Constitution?

In the most recent edition of the Yale Law Journal, Professor Abbe Gluck observes a phenomenon unique to state supreme courts: precedents that bind courts’ interpretive methods. At the U.S. Supreme Court, justices constantly argue about the proper method for interpreting contractual, regulatory, statutory, and constitutional texts. Prof. Gluck observes that in some state courts, including Wisconsin, a single case definitely sets the method by which future judges will interpret legal texts.

The Wisconsin case she refers to is, of course, State ex rel. Kalal v. Dane County Circuit Court (2004), which set a method by which the court would interpret statutes. That method focuses first on the text of the statute, and circumscribes the use of legislative history and other secondary sources.

Another Wisconsin case Prof. Gluck could mention is Buse v. Smith (1976), decided nearly thirty years before Kalal. 

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