A recent post discussed a Second Circuit decision which prevents prosecutors from penalizing a pleading defendant who challenges an upward adjustment under the Sentencing Guidelines, holding that prosecutors may not deny such a defendant the extra, third-point reduction for acceptance of responsibility simply because he forced the government to defend its position at a sentencing hearing. Grounded partly on a plain reading of § 3E1.1(b), the holding in United States v. Lee also drew broader philosophical support from the due process right of a defendant to reasonably contest issues at sentencing. But, generally, as long as federal prosecutors do not act for obviously unconstitutional reasons -- such as the race or gender of the defendant -- there are virtually no other court-imposed impediments to their insistence on plea agreement provisions which limit the opportunities for defense lawyers to advocate for their clients.

But then there is the New Jersey Supreme Court. In a recent ruling which represents nothing less than a full-throated defense of the right to advocate for a defendant, the state’s highest court held unenforceable plea agreement provisions which prevented a defense attorney from seeking a lower sentence and from making mitigation arguments at sentencing. State v. Hess, 207 N.J. 123, 23 A.3d 373 (2011).

Hess plead guilty to killing her husband. The plea bargain included a 30 year sentence, with a reduced parole disqualification period of 25½ years; a concession by defense counsel at sentencing that aggravating factors justifying this sentence outweighed mitigating factors arguing for a lesser sentence; and an agreement not to argue for a lesser sentence. Bound by these provisions, Hess’s attorney said almost nothing at sentencing, despite possessing evidence that his client suffered from battered woman’s syndrome.

The Supreme Court held that the provisions foreclosing advocacy of the mitigating evidence and of a lesser sentence were void. There was no doubt that those provisions had been bargained over, had been accepted with full advice of counsel, and that there was consideration for them. But the effect of these provisions was to deprive a defendant of effective assistance of counsel and to “vitiate the court’s ability to exercise discretion in sentencing.” 207 N.J. at 151, 23 A.3d at 389.

The hunt for the presence of these contractual indicia represent the point at which federal courts often conclude their examination of the propriety of plea bargain arrangements, as if the government and the defendant are two commercial parties bargaining as equals, treating each other at arm’s length. But matters of consideration and lawyer participation and the fiction of two equally-enabled negotiators were unimportant to the Hess opinion, which focused instead on broader notions of the proper operation of the criminal justice system:

A plea agreement that prevents a defense attorney from presenting or arguing mitigating evidence to the sentencing court deprives the court of the information it needs to faithfully carry out its unfettered obligation to identify and weigh the appropriate sentencing factors. The unhindered adversarial process at sentencing allows the court to be fully informed about all the evidence and factors that will lead to a just sentence … In the end, the restrictive plea agreement helped to fuel the breakdown of the adversarial process in this case ….

207 N.J. at 153-54, 23 A.3d at 390-91.  Perhaps it is time for the federal courts -- facing an increasing prosecutorial effort to limit appeals, to gag advocacy, to limit the presentation of mitigating evidence and argument at sentencing -- to place less emphasis on artificial concepts of contractual interpretation in favor of a clearer-eyed view of the distortions of the criminal justice system which result from those efforts.