Photo from website of U.S. District Court (W.D. MI).

Imagine pleading guilty when facing a high risk of a three-strikes non-parolable life term in prison. Why enter such a guilty plea unless such an approach is one’s only realistic hope not to die in prison, for instance where the prosecutor offers, in exchange for a guilty plea, to dismiss other pending criminal charges that are even more certain to result in life imprisonment either by themselves or by accumulation of counts?

Scott William Thompson unsuccessfully rolled the dice by entering such a guilty plea. He when he knew beforehand that the prosecution was seeking a three-strikes life sentence on his bank robbery guilty plea, due to his conceded prior two strikes for qualifying "serious violent felonies." 18 U.S.C. § 3559(c). U.S. v. Thompson, ___ F.3d ___ (4th Cir., Feb. 9, 2009).

Thompson tried to avoid a three-strikes sentence by turning to the statutory safety valve/affirmative defense of trying to show by clear and convincing evidence that in this robbery, "no firearm or other dangerous weapon was used in the offense and no threat of use of a firearm or other dangerous weapon was involved in the offense."  18 U.S.C. § 3559(c)(3). However, the trial judge did not buy that argument, after considering the testimony of prosecution witnesses who said Thompson threatened to shoot a gun if his demands were not met, versus defense witnesses who testified to hearing no such threats.

Thompson’s best but unsuccessful shot on appeal was to argue that under Apprendi v. New Jersey, 530 U.S. 466 (2000), only a jury has the power to determine whether he had proven by clear and convincing evidence that his bank robbery did not qualify as one of the three strikes to mandate a mandatory life sentence. Following in the footsteps of several other federal circuits, The Fourth Circuit held that Apprendi does not apply where, as here, the law assigns the defendant with the burden to prove that an offense does not qualify for a three-strikes calculus, versus circumstances where the prosecutor has the burden to prove the existence of circumstances to enable an enhanced sentence.

I doubt Thompson will get far through an en banc petition for the entire Circuit Court to rehear his case, nor with a cert. petition to the Supreme Court, at least if the Fourth Circuit in U.S. v. Thompson, is correct that no circuits have ruled differently on this safety-valve/three strikes issue. When I awaited my oral argument a few months ago at the Fourth Circuit, one of the judges asked a litigant if he was trying to create a split in the circuits. The judge’s concern probably was that a split in the circuits creates less certainty about the state of the law in circuits that have not yet resolved the particular legal issue, and less certainty in the remaining circuits about how the Supreme Court will handle the issue, because an absence of a split in the circuits is less likely to lead to Supreme Court review. Hopefully judges do not let circuit split issues guide their decisions, but at the very least they are going to consider such issues when questions are close calls.

Mandatory minimum sentencing is part of what keeps the American criminal "justice" system overgrown and overly expensive. Parole in the federal system and various states has been abolished, which means that those serving life sentences will only be released from imprisonment if they obtain appellate or other post-conviction court relief or applicable intervention from the president or governor. In the meantime, until mandatory life sentencing is abolished, governments should consider home detention options for older prisoners if not outright release. Jon Katz