More on Erwin

I posted here yesterday on US v. Erwin, one of CA3’s most important opinions of the year to date. Today, two additional notes.

First, the impact of Erwin will be magnified exponentially by circuit sentencing practice. I noted this a few weeks back:

Digging deeper into the numbers, the biggest single reason CA3 defendants get below-Guidelines sentences is for substantially assisting the prosecution, accounting for 31.2% of all CA3 sentences. That’s the highest circuit rate in the country, by far. The national rate is only 12.8%. In fact, one CA3 district — E.D.Pa. — has the single highest rate of defendants credited for substantial assistance of any district in the country, 43.6%. And DNJ is third at 35.7%.

So almost a third of criminal defendants in CA3 are getting sentence reductions for cooperation, like Erwin did. The vast majority of these reductions are the product of plea deals, like Erwin’s was. Now, after Erwin, every one of those reductions is at risk if the defendant appeals; so every one of those defendants has an incredibly powerful incentive not to appeal, even if the defendant and her lawyer strongly believe they have a valid claim to raise. So the impact of Erwin is broad indeed.

Second, a comment over at Douglas Berman’s Sentencing Law & Policy blog (which graciously linked to my original post) caught my eye, although I’m no contract-law whiz. Commenter Clint Broden (him, I assume) wrote:

It seems to me that the Third Circuit does not understand contract law. If the government alleges a breach and asks for the remedy of voiding the contract then the defendant should also not be bound by the contract. This means that the appeal should be considered on the merits because there is not longer a plea agreement barring an appeal. One could also argue that since the plea of guilty was part of the plea agreement that the defendant should now have the right to go to trial upon remand. Under this ruling it is now the government that is having its cake and eating it too. It can withdraw the 5k1 but was still allowed to assert the appellate waiver on appeal. If the government seeks to void the plea agreement instead of specific performance that also should have consequences.