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Judges as framers of plea bargaining.

  I. The Federal Judge's Role in Plea Bargaining
  A. The Nuts and Bolts of Federal Plea Bargaining
  B. Rule 11's Prohibition on Judicial Participation in Plea Discussions
  C. Lafler and Frye Expand the Judge's Role
II. Federal Plea Bargaining Operates With Too Little Judicial
Oversight, Puts Too Much Power in Prosecutors' Hands, and Is
Confusing and Unfair to Defendants
  A. An Uncertain Plea/Trial Differential is Unduly Coercive, and Judges
    Do Nothing to Dispel This Uncertainty
  B. Too Much Prosecutorial and Not Enough Judicial Discretion
  C. Defense Attorney Disadvantages .
  D. Because Plea Bargaining Is Not On The Record, the Results Lack
    Public Transparency, Consistency, and Thoroughness
  E. Presentence Reports Are Not Being Used Sufficiently
III. A Proposal For Judges to Frame Plea Bargaining
  A. The Proposed Procedure
  B. How to Determine an Appropriate Plea/Trial Differential
    1. Optimal Number of Guilty Pleas
    2. Strength of the Prosecution's Case
    3. Potentially Undue Coercion
  C. When A Court May Exceed Its Own Indicated Sentences
  D. Considering Ex Parte Information
  E. No Need for the Judge to Recuse If the Defendant Goes to Trial
IV. Implications of My Proposal
  A. Let Judges Judge
  B. Consistent with Rule 11's Prohibition on Judicial Participation
    in Plea Discussions
  C. Provides Defendants Greater Certainty and Better Assistance of
  D. Benefits to Prosecutors and Crime Victims
  E. Possible Objections
    1. Litigation Costs
    2. Presumption of Innocence
    3. Leaves Prosecutorial Discretion Intact
    4. Length of Proceedings


In the federal system, the vast majority--about ninety-seven percent--of federal criminal defendants plead guilty, giving up their constitutional right to a jury trial in exchange for sentencing concessions. (1) Unfortunately, federal plea bargaining happens with little judicial involvement--between prosecutors and defense attorneys, behind closed doors and with practically no public oversight. This secretive procedure leaves the adjudication of criminal cases to attorneys, not the courts. Recently, the Supreme Court acknowledged that our justice system is "a system of pleas, not a system of trials." (2) We must conform federal criminal procedure to this reality, and that will require bringing more of the plea bargaining process back into the courtroom where it belongs. (3)

The plea bargaining process is initially framed by prosecutors' charging decisions. By selecting the charges, prosecutors strongly influence the sentence. This is so even where mandatory minimum sentences are not implicated because the advisory Federal Sentencing Guidelines are influential in plea bargaining and sentencing. Soon after indictment, the parties begin their plea discussions. These discussions are informal and out of court. The defense makes its best pitch to the prosecution but has imperfect incentives to fully investigate the case or to make a full presentation of all relevant issues. The parties make their best guess as to the likelihood of a conviction by jury, the court's likely resolution of key sentencing issues, and the expected difference between a post-plea sentence and a post-trial sentence ("plea/trial differential"). Defendants decide to forego their constitutional rights and plead guilty based on these guesses. Put simply, defendants decide to plead guilty out of fear: they do not want to risk a much more severe post-trial sentence than the more concrete expected sentence that they will get for pleading guilty. On this basis, the parties ultimately strike their deal and present it to the court for approval. Then, for the first time, at what is likely near the end of the case, the court becomes significantly involved in the plea bargaining process.

One reason why judges do not usually reject the deals (4) is because they often have little information about the case beyond what is stated in the indictment. Frequently, they accept the guilty plea provisionally, pending their examination of the presentence report for sentencing. That report should guide the court in considering the numerous statutory factors that are meant to make sentencing rational and consistent. But the parties usually contribute to that report's preparation with a more practical aim: to buttress the plea agreement. Paradoxically, the plea agreement tends to shape the presentence report. Even if it does not, by the time of sentencing, the parties already have a reliance interest in their bargain. Thus, the defendant is usually sentenced consistent with the plea agreement, and the whole process of preparing the presentence report after the deal has been struck becomes an empty formality. (5) Judges have a strong incentive not to reject the parties' deal because doing so would send them back to the bargaining table, thereby prolonging the case and risking a jury trial.

One of plea bargaining's key infirmities is that it largely excludes judges until the tail end of the process. This is unfortunate for many reasons. Judges are institutionally more neutral and less political than prosecutors are. Article III judges can exert an important check on the Executive Branch's law enforcement activities. Plea bargaining discussions are conducted largely on the basis of what the parties believe judges would do at sentencing, but judges have no early opportunity to dispel them of any misconceptions. Finally, on-the-record plea proceedings early in the case would encourage the parties to develop sentencing issues more thoroughly and publicly.

This Article examines these and other infirmities of federal plea bargaining and proposes giving judges a more central role in the process. Of course, there is a limit to how much an enhanced judicial role can accomplish. As long as prosecutors have wide discretion in selecting charges, they will likely dominate plea bargaining. But my proposal--a thought experiment, really--shows how enhanced judicial involvement could change prosecutors' incentives by bringing plea bargaining into the light of the courtroom. That, in turn, could make plea bargaining more fair and transparent to both defendants and the public and more effective in arriving at just and reasonable sentences. This Article makes a novel contribution to the plea bargaining literature by reconceptualizing the judge's role in plea bargaining and fleshing out and modifying some skeletal proposed reforms from the 1970s (6) in light of legal developments over the last four decades. The older proposals would abrogate prosecutorial discretion and make the plea/trial differential uniform across all cases. Although conceptually elegant, these proposals are politically infeasible. My proposal is more modest, but letting judges frame the issues early in the case through a public proceeding would work a fundamental reform to plea bargaining.

The Supreme Court recently took an important step toward encouraging more judicial involvement in plea bargaining in a pair of 2012 decisions, Lafler v. Cooper (7) and Missouri v. Frye. (8) These cases strengthened defendants' protections against ineffective assistance of plea bargaining counsel, but they also considered how defendants might prove that their attorneys' ineffective assistance had prejudiced them. This has encouraged judges to make some record of the parties' plea discussions. The parties in turn must conduct their negotiations differently, knowing that the negotiations could become the subject of public litigation. Thus, Lafler and Frye have effectively invited judges to exert a greater influence in plea bargaining.

This Article proceeds as follows: In Part II, I briefly describe the federal judge's role in plea bargaining. Part III critiques plea bargaining. In Part IV, I put forward my proposal to reform it, and Part V considers the implications of this proposal.

I propose letting defendants request from the court, early in the case, two indicated sentences: one for a guilty plea and another for a post-trial sentence (the difference between these two sentences is called the "plea/trial differential"). The parties would engage in litigation similar to a sentencing proceeding, with the help of a pre-plea presentence report, to systematically explore the key sentencing issues.

My approach is novel because it would permit the court, in determining the two indicated sentences, to consider case-specific factors, such as the size of plea/trial differential necessary for the court to process its caseload, the strength of the prosecutor's case and likelihood of conviction at trial, and the potential undue coerciveness of the plea/trial differential where the prosecutor's case is weak. Using these case-specific factors yields two benefits that are novel to the literature on plea bargaining reform. First, the approach is pragmatic because it would merely ask the sentencing court to make explicit the analysis that it already employs implicitly. Second, it could mitigate any undue coercion in a guilty plea because the court could sufficiently familiarize itself with the prosecution's case to discern whether the government was offering a steep discount off of a potentially draconian post-trial sentence to compensate for the weakness of its case.

This proposal has other significant advantages. It would allow judges to supervise an adversarial procedural that would help frame the parties' subsequent plea negotiations with better information about the factual and legal contours of the case and the potential sentencing consequences. It would take place on the record, improving the transparency and legitimacy of the justice system. In seeking to provide defendants with better information as they make the most important decision in the case, it would comport with Padilla v. Kentucky, in which the Supreme Court required that defendants be advised of the risk of deportation before pleading guilty. (9) Finally, in describing significant yet achievable changes to criminal procedure, it provides federal criminal practitioners with a detailed roadmap for experimentation and reform.

I. The Federal Judge's Role in Plea Bargaining

In this Part, I describe the federal judge's role in plea bargaining. That role is a minor one; prosecutors are the star of the show. Prosecutors select the defendants and the charges and come to the bargaining table with the most leverage. Defense attorneys make their best pitch for leniency but ultimately encourage their clients to take a deal. Judges ensure that the plea is "knowing" and "voluntary" but essentially rubberstamp most plea agreements (10) and sentence the defendants according to the parties' agreement. Since 1974, federal judges have been prohibited from any participation in the plea discussions, and appeals courts have strictly enforced that prohibition. But Lafler and Frye are changing that because they require the court and the parties to document more of the plea bargaining process.

Thus, Part II provides a foundation for understanding some of the core weaknesses of federal plea bargaining described in detail in Part III: prosecutors have too much influence; judges have too little; defense counsel lacks a formal procedure to flesh out mitigating factors; the defendant often lacks reliable information about his actual sentencing exposure; and the whole bargaining process lacks rigor, transparency, and accountability.

A. The Nuts and Bolts of Federal Plea Bargaining

"Plea bargaining" refers generally to defendants giving up their trial related constitutional rights and pleading guilty in exchange for prosecutorial concessions, like lighter sentences and dismissals of charges. Nearly all federal convictions (ninety-seven percent) and state convictions (ninety-five percent) result not from trials, but from guilty pleas. (11) By 1971, the Supreme Court had acknowledged that plea bargaining was an "essential component of the administration of justice." (12) More recently, that same acknowledgement became more blunt: "[plea bargaining] is the criminal justice system." (13) "Plea bargaining's triumph" over the jury trial is nearly complete: prosecutors, judges, defense attorneys and defendants all have come to see plea bargaining as in their best interest. (14)

In the federal system, plea bargaining is largely conducted outside of the courtroom but culminates on the record with a guilty plea. Typically, after the grand jury issues an indictment and the defendant is arraigned, the defense attorney and the prosecutor negotiate privately. Once they reach an agreement, a hearing is calendared for a change of plea. A plea agreement typically binds the prosecutor to dismiss charges or not to bring particular charges. (15) The agreement often contains a sentencing recommendation that does not bind the court, although the court usually follows the recommendation. (16) Alternatively, the agreement may contain a binding sentencing recommendation. (17) The judge may, but very seldom does, reject a plea agreement that dismisses charges or binds the court. (18) In that case, the defendant may withdraw his guilty plea. (19) Thus, for most defendants, their "day in court" is limited to short, uncontested hearings preceding a guilty plea.

The sentencing differential between those defendants who plead guilty and those who are convicted after a jury trial underlies our whole system of pleas. Put simply, defendants plead guilty primarily because they fear getting a much longer sentence if they lose at trial. (20) The main policy rationale for this "plea/trial differential" (21) is that it incentivizes guilty pleas over time-consuming jury trials, allowing prosecutors, judges, and defense attorneys to process more cases. (22) The federal system as currently funded could not handle the strain of trying every case. (23)

The United States Sentencing Guidelines are highly influential in determining federal sentences. Even though the Supreme Court made the

Guidelines advisory in 2005, (24) as of 2012, federal judges only sentenced below the advisory guideline range without government concurrence in about eighteen percent of cases. (25) Under these Guidelines, a fixed plea/trial differential has been formalized, in part, as the "acceptance of responsibility" reduction, amounting to two or three offense levels. (26) That reduction tends to be about one-third of the post-trial sentence for those who accept responsibility for their crimes by pleading guilty. The reduction--designed to encourage guilty pleas--is virtually assured when the defendant pleads guilty (27) and virtually unheard of otherwise. (28)

In practice, the plea/trial differential can be even greater than the acceptance of responsibility reduction alone would suggest. First, only those defendants who plead guilty can hope for government recommendations of sentences below the otherwise applicable guideline range, such as for providing substantial assistance or participating in an early-disposition ("fast-track") program. (29) In fact, one study has confirmed that, even controlling for Guideline reductions such as acceptance of responsibility, obstruction of justice, and substantial assistance, there is still a plea/trial differential. (30) Second, prosecutors often threaten to file more serious charges, sometimes carrying a mandatory minimum, if the defendant does not plead guilty. (31) Third, prosecutors often make plea offers at the low end of the applicable guideline range, (32) but their post-trial recommendations may be at the high end of that range, effectively increasing the plea/trial differential by two offense levels. Finally, upward departures may be granted for reasons related to criminal history issues, dismissed and uncharged conduct, pursuant to the plea agreement, or for aggravating circumstances "not adequately taken into consideration by the Sentencing Commission." (33)

Prosecutors are the primary movers in federal plea bargaining. They choose their defendants and the charges, and that choice is virtually unreviewable. Often, they bring very strong cases in which a jury would almost certainly convict. The defendant thus must plead guilty, generally on plea terms favorable to the prosecution. Judges generally go along with these plea agreements because they lack resources to preside over many trials. (34) This broad prosecutorial discretion is a hallmark of the American criminal justice system and borders on an inquisitorial, rather than adversarial, role. (35)

The prosecutor's plea offer is usually based on the defendant's criminal conduct and history, without reference to the full analysis of the defendant's background and characteristics provided in the presentence report. (36) Prosecutors' offers in many districts are still pegged to the advisory Sentencing Guidelines, which promote uniform, if severe, sentences throughout the nation. The Guidelines reduce most cases to a mathematical formula. Prosecutors typically prefer to make offers based on that formula because it promotes uniform, objectively justifiable sentences.

Prosecutors' systemic leverage sharply circumscribes the role and utility of defense counsel in plea bargaining. Defense attorneys know that the defendant must plead guilty or face a much longer post-trial sentence. While federal public defenders are savvy repeat players, privately retained counsel often have fewer resources, institutional and otherwise, to gauge the potential sentencing consequences of the case. Informal, unstructured, and off-the-record negotiations do not encourage defense counsel to thoroughly investigate legal issues and mitigating facts, present them persuasively to the prosecution, or aggressively litigate disputed issues. To the extent that defense attorneys are under-resourced or even unskilled, the entire system loses out, particularly the mitigating evidence, there can be no counterpunch to the prosecution's heavy blows. (37)

There is an important exception to the foregoing. The most skilled and best-funded defense attorneys (most commonly found in white-collar cases with wealthy defendants) understand how prosecutorial discretion works. They make detailed presentations to prosecutors concerning their clients' defense during the plea bargaining process and often obtain a favorable plea agreement before an indictment is filed. Those attorneys understand that our criminal justice system can perhaps best be understood as administrative, with the principal decision-making authority vested in the prosecutor. Thus, they put enormous effort and resources into trying to influence prosecutorial decisions. (38) This describes a relatively small percentage of federal cases, though. (39)

Procedurally, once the deal is struck, guilty pleas are governed by Rule 11 of the Federal Rules of Criminal Procedure. Rule 11 does not come into play until the parties reach an agreement on their own, and the Rule neither regulates nor gives the parties guidance in framing those discussions. The Rule provides that the judge "must not participate in these discussions" (40) and limits the judge's role to taking the guilty plea. Because the parties negotiate off the record, judges cannot easily supervise those discussions, except to ask whether the defendant has been unduly influenced to plead guilty. (41)

Under Rule 11, the judge seeks a knowing and intelligent waiver of the defendant's rights, (42) including the right to plead not guilty, (43) the right to a jury trial, (44) and the right to appeal. (45) The judge also must advise the defendant of the maximum penalties (46)---though such penalties are rarely imposed--and any mandatory minimum penalties. The judge "must determine that there is a factual basis for the plea." (48) This requirement can be satisfied, regardless of the quantum of evidence, if the defendant admits to conduct that would satisfy the elements of the charged statute. (49) The judge must decide whether the plea is voluntary and not a result of "force, threats, or promises (other than promises in a plea agreement)." (50) The voluntariness of a guilty plea can be determined "only by considering all of the relevant circumstances surrounding it." (51)

Generally, following the guilty plea, the presentence report is prepared pursuant to Rule 32 of the Federal Rules of Criminal Procedure to aid the judge in sentencing. (52) The defendant may consent to the report's disclosure to the court before he is convicted. (53) The purpose of this policy is to prevent the judge, who may have to preside over a jury trial, from being exposed to prejudicial information about the defendant. (54) Unfortunately, because the report is prepared after the parties strike their deal, they cannot benefit from the probation officer's investigation and analysis of the case, and the plea deal usually will largely determine the sentence, regardless of what the report ultimately says. (55)

This unfortunate timing of the presentence report leaves the parties and court without helpful information and analysis. The presentence report must calculate the applicable guideline range, identify any other factors relevant to sentencing, (56) and discuss the defendant's history (57) and the crime's impact on any victims. (58) The report also may include the defendant's statement to the probation officer if the defendant consents. (59) Once a draft report has been prepared, the parties may conduct litigation over it. At sentencing, the parties may object to the presentence report (60) and introduce evidence. (61) The defendant may speak. (62) Victims are permitted to be reasonably heard. (63) Unfortunately, because this process generally occurs only after the parties have reached a plea agreement, it does not help guide the court and the parties in reaching a just and reasonable disposition of the case.

B. Rule 11's Prohibition on Judicial Participation in Plea Discussions

Before 1974, direct judicial participation in plea bargaining was "common practice." (64) But that year, Congress amended Rule 11 to forbid such participation. (65) The concern was that defendants might feel coerced by the judge into pleading guilty and that plea bargaining judges might not be able to objectively assess the voluntariness of the guilty pleas. (66) The prohibition is prophylactic; it is designed to protect constitutional rights, but it itself is not a constitutional rule. (67)

The circuit courts have interpreted the injunction against judicial participation in plea negotiations very strictly. (68) In one important case, United States v. Werker, (69) the defendant, Santos-Figueroa, faced a twenty-five year maximum sentence for a violent attempted robbery, and the federal prosecutor refused to plea bargain. Santos-Figueroa asked District Judge Werker for an assurance that he would receive no more than ten years on a guilty plea. The judge, with the defendant's consent, ordered a pre-plea presentence report to be prepared and announced he would inform the defendant of his intended sentence at a future pre-trial hearing. The judge specified that the indicated sentence would be the same whether the defendant pleaded guilty or was convicted at trial. The government objected to the procedure and sought mandamus. The Second Circuit granted mandamus, interpreting Rule 11's prohibition on plea bargaining very broadly to mean that "the sentencing judge should take no part whatever in any discussion or communication regarding the sentence to be imposed prior to the entry of a plea of guilty or conviction, or submission to him of a plea agreement." (71) The appellate court reasoned that Judge Werker's procedure violated judicial neutrality and could make the defendant feel coerced into taking the court's offer, especially where the government was not a party to the discussions. (72)

In 1984, there was another significant change to the balance of power between judges and prosecutors in plea bargaining. Before then, federal sentencing was indeterminate: that is, the judge could sentence anywhere within a statutory range. That gave judges relatively greater sway over sentencing than they have now. But with the passage of the Sentencing Reform Act of 1984, sentencing fundamentally changed. (73) The Act resulted in binding sentencing guidelines that closely tied prosecutorial charging decisions to sentences. (74) Prosecutors, through their selection of charges, had much greater power over sentencing under that regime. Of course, as stated above in Part II.A, those guidelines are now advisory, but they are still highly influential. The upshot is, relative to the pre-1974 regime, federal judges until recently have had reduced power in plea bargaining and sentencing.

C. Lafler and Frye Expand the Judge's Role

Fast forward several decades, and the pendulum is swinging back in the other direction. In 2012, the Supreme Court handed down two opinions expanding the right to effective counsel in plea negotiations and, perhaps even more importantly, strengthening the legal foundation for greater judicial involvement in the plea bargaining process.

In Lafler v. Cooper and Missouri v. Frye, pre-trial ineffective assistance of counsel led the defendants to persist in their pleas of not guilty instead of taking advantage of relatively favorable plea offers. (75) When Anthony Cooper was convicted at trial after rejecting the prosecution's offer based on bad legal advice, he received a sentence much longer than he would have recently under a plea deal. (76) In Lafler v. Cooper, the Supreme Court held that he had been prejudiced by his attorney's ineffective assistance. (77) The Lafler court reaffirmed that the right to counsel extends to the plea bargaining process, (78) and that the defendant was prejudiced if he could show "the outcome of the plea process would have been different with competent advice." (79) To do that, the defendant would have to show that "but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed." (80) In dissent, Justice Scalia complained that the majority opinion elevated plea bargaining from a "necessary evil" to a "constitutional entitlement." (81)

In Missouri v. Frye, (82) handed down the same day, the Supreme Court considered similar facts. Galin Frye's attorney never conveyed a favorable offer from the prosecutor to him. The offer lapsed, and he ended up pleading guilty without a plea agreement and receiving a much longer sentence. The Supreme Court found that Frye's attorney had been ineffective in failing to convey the offer. (84) That this ineffectiveness was prejudicial could be shown where there was (1) a "reasonable probability [the defendant] would have accepted the [lapsed] plea offer"; (2) a "reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it"; and (3) a "reasonable probability" that the defendant would have received a more favorable sentencing outcome under the plea. (85)

Lafler and Frye do much more than strengthen the right to effective assistance of counsel during plea negotiations. In setting forth fact-intensive tests for prejudice, both opinions invite prudent judges to make a better record of the parties' plea negotiations. In fact, such a record would be necessary to properly adjudicate future claims of ineffective assistance of plea bargaining counsel. For example, in Frye, the Supreme Court suggested that prosecutors make formal, written offers to the defense and put those offers on the record. (85) And federal prosecutors have been doing even more to protect themselves against Lafler- and Frye-type claims. For example, before a case goes to trial, many federal prosecutors put on the record that a plea offer has been made, that the defendant and his attorney have discussed it, and that the defendant has rejected it. That hearing is sometimes referred to as a "no-plea colloquy." (86) Federal prosecutors in some districts are requesting that defense attorneys file signed declarations under seal describing their advice to clients about the plea offers and their clients' reasons for rejecting them. (87) Some judges may choose to elicit from defense counsel, perhaps in camera, why the offer was rejected. (88)

These sensible procedures are in line with Lafler and Frye. It could be argued that, in documenting only failed plea discussions, these procedures are not in tension with Rule 11's injunction that judges not participate in plea discussions. But there is a tension: the parties might conduct those discussions differently knowing that they had to report on not only the outcome but also the substance of the discussions to the judge. Where the court knows nothing of the parties' plea discussions, those discussions are in some sense private: between the prosecution and the defense and no one else. But where those discussions must be publicly revealed to the judge in future litigation over defense counsel's effectiveness, the parties may change their approach entirely to plea discussions. Thus, Lafler and Frye, without mentioning Rule 11's injunction against judicial plea bargaining, encourage judges to make a record of plea bargaining, and the parties consequently change their behavior to appear more reasonable to the judge and the public. In this way, judges are exerting a positive influence on the parties' plea discussions without directly participating in them. As we will see below in Part III, my proposal works similarly. But first, we turn in Part II to evaluating the merits of this federal plea bargaining regime.

II. Federal Plea Bargaining Operates with Too Little Judicial Oversight, Puts Too Much Power in Prosecutors' Hands, and Is Confusing and Unfair to Defendants

I argue in this Part that federal plea bargaining, which I described in Part I, suffers from several deficiencies. Defendants are asked to knowingly give up their constitutional rights without guidance from the court as to their actual sentencing exposure. The system relies too much on prosecutors and not enough on judges, who are better, by virtue of their institutional role, at judging and sentencing the individual defendants before them. The system does not do enough to help defense attorneys bring to light, in an organized fashion, favorable facts to their clients during the plea bargaining stage. Because plea bargaining is largely conducted off the record, the system does not catch errors (such as ineffective assistance of counsel), and the public does not find out why concessions are made. The presentence report, which is prepared only after the guilty plea, is underutilized; if prepared earlier in the case, it could rationally guide the plea negotiations. These problems point to my proposed reform in Part III: a formal, public, pre-trial procedure at the defendant's request that allows the parties to litigate the appropriate sentence in the plea bargain and post-trial scenarios.

A. An Uncertain Plea/Trial Differential Is Unduly Coercive, and Judges Do Nothing to Dispel This Uncertainty

Because defendants in the federal system usually do not know the plea/trial differential in advance, they can only guess how long their post-trial sentence will be. However, they do know that their sentence could be very long. (89) Because judges ultimately impose the sentence, they are well-situated to dispel most of this doubt. But they do not, primarily because they lack sufficient information about the case and do not want to be seen as partial. Unfortunately, by not weighing in, they effectively approve of the coercion inherent in an uncertain plea/trial differential.

When defendants go to trial without understanding the risks involved, they take "a plunge from an unknown height." (90) This creates a "general atmosphere of intimidation." (91) Such a regime requires a large plea/trial differential to exact guilty pleas, as compared to a system in which the differential is made explicit. (92) For example, a defendant facing a known plea/trial differential of twelve months would be equally incentivized by a plea/trial differential that was just as likely to be six months as eighteen months (leaving the defendant's risk aversion to the side). Defendants cannot accurately gauge the plea/trial differential because that differential could depend on several factors, such as uncertain application of the Sentencing Guidelines and the strength of the prosecution's case. (93) Furthermore, now that the Sentencing Guidelines are advisory, federal sentencing has become even less predictable, although it is not clear whether the average plea/trial differential has changed. (94)

Even defendants who have potential defenses or who are innocent may plead guilty when faced with potentially sky-high plea/trial differentials. They accept a relatively certain bargained-for outcome rather than risk a devastating post-trial sentence. (95)

Plea bargaining is even more coercive where, as is often the case in the federal system, the potential prison sentences are lengthy. Prosecutors need higher plea/trial differentials to tempt defendants to plead out to long sentences. For example, a defendant faced with a plea offer of one year and an anticipated post-trial sentence of two years might decide to try his chances at trial because two years of custody might not seem long compared to the chance of an acquittal. In contrast, if the penalties for the same offense were ten years on a plea and twenty years post-trial, defendants are less likely to gamble with longer periods of their lives. (96)

Relatedly, several common federal criminal statutes carry high statutory maximum penalties, which accommodate large plea/trial differentials. (97) The court advises defendants of these penalties before the guilty plea, typically at the arraignment. (98) This advisement, which carries the judge's imprimatur, is misleading: the maximum penalty almost is never imposed. For example, even though drug charges often carry maximum penalties of twenty years, forty years, or life, (99) drug sentences in fact average only seventy months. (100) Notwithstanding, the maximum possible penalty can have an anchoring effect on future plea negotiations. (101) And even if defendants know that an average sentence is much lower than the maximum, they are understandably risk-averse because they may feel that their life is on the line.

Sometimes, the coercion inherent in the plea/trial differential comes exclusively through the prosecutor. Because several federal statutes carry mandatory minimum sentences, the prosecution can force guilty pleas by threatening to bring ("stack") these additional charges. (102) Even if the defense correctly guessed that the court would not impose a higher post-trial sentence than the mandatory minimum, the differential between the likely sentence on a plea and the mandatory minimum sentence that the defendant faced post-trial could still be huge.

By pleading guilty, defendants waive constitutional rights, and those waivers must be made with "sufficient awareness of the relevant circumstances and likely consequences." (103) Without knowing the likely sentencing outcomes of a guilty plea versus a jury trial, defendants simply cannot be said to have made a knowing waiver.

Because judges ultimately impose the sentence, they are well-situated to dispel most of this doubt. However, judges generally lack sufficient information about the case and do not want to be seen as biased, so they do not intervene, thereby implicitly approving of the coercion inherent in the uncertain plea/trial differential.

B. Too Much Prosecutorial and Not Enough Judicial Discretion

Prosecutors have dual roles: to enforce the law as advocates and to see that justice is done. Therein lies some tension: prosecutors must strike "hard blows" without striking "foul ones." (104) Because prosecutors choose the charges and sentencing is largely guideline-driven, their discretion shapes case outcomes more than judges' discretion does.

Federal prosecutors generally prefer the Sentencing Guidelines regime because it promotes greater predictability and uniformity of sentences.105 This allows federal law enforcement to implement nationwide policy objectives. Unfortunately, this simplification can lead to unalike cases being treated as alike. In contrast, judges do not act in concert with each other; they take cases one at a time. Judges, who address defendants directly in court, may feel a greater responsibility than some prosecutors do to consider the effect of a conviction on defendants and their families. Our sky-high incarceration rates (106) demonstrate that the Department of Justice and Bureau of Prisons value punishment over rehabilitation, but individual judges may choose to disagree with that policy choice.

Federal sentences should consider the defendant as an individual and consider alternatives to incarceration. (107) But this often is not the case because prosecutors drive charging and plea bargaining with little input or oversight by judges. The prosecution''s offers are made without reference to a presentence report but rather with an eye toward uniform sentences based on the criminal conduct, not the defendant's background or a full consideration of all of the purposes of the criminal law. The court participates in the back end only of this process when it approves the plea agreement, putting its imprimatur on a final product that bears little judicial imprint. In contrast, a greater role for federal judges in the plea bargaining process might result in sentences more carefully tailored to the unique circumstances of each defendant.

Judges have a small role in adjudicating cases and sentencing. Plea bargaining, driven by prosecutors, collapses adjudication and sentencing into one. (108) Judges maintain their neutrality by not getting into the fray of plea bargaining. Instead, the prosecution and the defense settle the case with little judicial participation. (109) The plea agreement often preempts or severely circumscribes the court's ability to exercise its discretion to sentence the defendant. (110) Rule 11's general injunction against judicial participation in plea negotiations is well-intentioned but overly broad. It exalts neutrality at the expense of letting judges examine the cases before them and provide the defendant with helpful information. Although the judge's impartiality is undisputed, this is only because she has almost no meaningful involvement with the case.

C. Defense Attorney Disadvantages

Shortcomings in defense counsel also limit the defendant's ability to receive justice due to the economic realities of defense work and the difficulty of determining an appropriate sentence during the plea discussions.

The Supreme Court has sanctioned plea bargaining in part on the assumption that the prosecution and the defendant "arguably possess relatively equal bargaining power" and engage in "give-and-take" negotiations. (111) In practice, this often is not the case. Most federal criminal defendants are indigent and receive court-appointed counsel. (112) Federal Public Defenders Offices have prestige and can attract good lawyers who often are passionate about their work. Still, they carry high caseloads and receive a government salary for their work far below what experienced litigators would receive in the private sector. (113) Their caseload is not likely to be diminished if they take more cases to trial. In the face of these conditions, federal defenders have a huge incentive to encourage their clients to plead guilty.

Private defense attorneys also have large incentives to plead out cases quickly. They are frequently paid as the case progresses through stages, and the trial is the most expensive stage. Many clients cannot afford to pay for their privately retained attorney to try their case. These defendants may start the case with retained counsel and end up with appointed counsel as the litigation slowly drains their bank accounts. Thus, public or privately retained defense attorneys usually lack sufficient incentive to fully investigate and systematically present favorable sentencing information to the court and prosecutor before the guilty plea is entered. Only a lucky few defendants get the kind of well-financed and skilled legal representation that our adversarial system contemplates.

A related problem is the difficulty that defense attorneys, appointed or retained, face in determining their client's actual sentencing exposure. This is a complicated task. True, defense attorneys who know the courthouse, the judges, and the U.S. Attorney's Office can have a good sense of the "going rate" of particular kinds of cases. However, the real work of defending a case lies in distinguishing that case from the rest, in finding unique issues that pose legal or factual problems for the government. Defense attorneys vary widely in their financial and legal ability to do this. (114)

Even if a defense attorney discovers unique legal and factual issues that could bear on the disposition of the case, he or she must communicate this effectively to the prosecutor. Whether this communication occurs face-to-face, by telephone, or by email, it is certain to be off the record, and neither the judge nor the defendant is likely to be present. Such informal and unstructured negotiations do not encourage as full an exploration of these issues as one would expect from a public and court-monitored procedure. Likewise, without a public record being made, informal negotiations provide little guard against inadequate or even inaccurate defense presentations. (115) This could be especially true where defense counsel has insufficient financial incentives to put the proper preparation and resources into case-dispositive negotiations. (116)

The complexity of federal criminal litigation also adds to the difficulty for defense attorneys and prosecutors alike of determining the defendant's actual sentencing exposure. Computing a defendant's sentencing exposure under mandatory Sentencing Guidelines was hard enough, but in the wake of Supreme Court opinions making these Guidelines advisory, their application to a given case is even less certain. (117) Novel sentencing issues often arise for which there is no "going rate." And the fact patterns for many crimes, such as conspiracy and fraud cases, are highly complex. The plea deals that parties strike represent in part their best guess as to what the judge would do with the case. However, because most deals are struck without real input from the judge and most cases settle, the parties' ideas about going rates may become selffulfilling prophesies. There are so few trials that their predictive value is lessened. (118) Because judges most often simply ratify the parties' deal, the parties never find out what the judge would have done had she had the opportunity to analyze the case independently.

D. Because Plea Bargaining Is Not on the Record, the Results Lack Public Transparency, Consistency, and Thoroughness

Before Rule 11 was amended in 1974, plea discussions and agreements were "informal and largely invisible." (119) In the courtroom, defendants, their attorneys, prosecutors, and judges alike made ritual denials that any promises had been made to the defendant. (120) (One commentator referred to this procedure as a "pious fraud.") (121) This tended to drive plea bargaining "underground," where it could not be regulated. (122) While the 1974 amendments required that bargaining be acknowledged in the guilty plea colloquy, the bargaining itself still goes on without court involvement, regulation, or clear rules and off the record. (123) It lacks a "regularized advocacy procedure" which would foster transparency, rigor, consistency, and accountability. (124) Much more can be done to bring plea bargaining out of the shadows and into the light.

Our guilty plea system is essentially run by (well-meaning) professional insiders who process criminal cases with little public scrutiny. (125) These insiders, including prosecutors, defense attorneys, judges, and probation officers, benefit from the arrangement because they can work out the case without external dissent according to their professional judgment. (126) This is far removed from the democratic ideal of a public trial by one's peers.

As such, plea bargaining is largely invisible to the public, or even a representative sample of the public, as the Sixth Amendment's right to a jury trial contemplates. Settlements create little fanfare. Prosecutors have little incentive to justify to the public the reasons for their charging concessions or their willingness to add more severe charges as a consequence of the defendant rejecting the plea offer. (127) This is a powerful argument in favor of giving judges a greater role in the process because they, unlike prosecutors, are used to having to justify their decisions on the public record. (128) Although it is true that the public cannot keep informed of most criminal cases, a more public process for disposing of the cases would allow for better oversight, such as by trial and appellate judges, bar organizations, the attorney's supervisors, crime victims and witnesses, concerned members of the affected community, journalists, and scholars.

E. Presentence Reports Are Not Being Used Sufficiently

The presentence report systematically analyzes the sentencing factors set forth in 18 U.S.C. [section] 3553 and therefore could be an important tool in determining a just sentence. Unfortunately, the parties cannot benefit from the report because they strike their deal before the report is ever prepared. (129)

Some judges accept a plea bargain as long as the as-yet-unwritten presentence report later shows that the parties did not misrepresent any material facts to the court. (130) Other judges take a slightly more expansive view of the presentence report's potential by accepting the plea agreement provisionally, subject to change after the presentence report is written. But by the time of sentencing, they have a strong incentive to not upset the parties' deal and the defendant's expectations, regardless of what the presentence report says. (132) And if the court rejects the deal, the parties will have to engage in wasteful renegotiating, or worse, they may go to trial.

It is true that defense lawyers may try to informally provide information to the prosecutor that would ultimately end up in the presentence report. But the presentence report offers a formal process for providing, evaluating, and structuring that information according to the statutory sentencing factors. It encourages and assists the defense to provide as much of that information as possible in a documented form. That information, embodied in a pre-plea presentence report, could be much more beneficial to the administration of justice earlier in the case.

Furthermore, the presentence report may be highly influential to the prosecution because the court's probation officer will have independently evaluated the information provided and possibly have conducted additional investigation. Thus, the pre-plea presentence report could be more likely to 129 130 131 132 give the prosecution flexibility and political cover to recommend a more reasonable sentence.

There are practical limitations to what the pre-plea presentence report can accomplish. For example, the defendant should not be required to incriminate himself in making a statement to the probation officer although the court could perhaps order that any such statements not be used against the defendant should the case eventually proceed to trial. Furthermore, the probation officer is not likely to have the resources to conduct a truly independent investigation regarding information that the parties provide. But the presentence report could still serve as a valuable resource to the parties during plea negotiations.

In the next Part, I describe a proposal to ameliorate the problems described in Part II.

III. A Proposal For Judges to Frame Plea Bargaining

My proposal to address the shortcomings of federal plea bargaining described above in Part II is a defendant-initiated, pre-trial adversarial motion procedure that, with the help of a pre-plea presentence report, would frame plea bargaining by allowing the judge to provisionally declare guideline calculations and a maximum sentence on a guilty plea for the charges and a tentative maximum post-trial sentence. Such a proposal would help make all the parties aware of the likely sentencing consequences of the contemplated guilty plea. This proposal also would improve the administration of justice generally by creating a more formalized advocacy process for plea bargaining.

In this Part, I describe my proposal in detail. I argue that this proposal does not run afoul of Rule 11's restriction on judicial participation in plea discussions because the judge is merely informing the defendant of likely sentencing consequences.

The motion for indicated sentences would be most effective if the defendant had maximum discovery to prepare for it. Although the law does not require this, the prosecution typically provides discovery early in the case.

In determining the plea/trial differential in a particular case, the court would be guided by several factors. First, the court would need to consider in general the size of differential necessary to obtain sufficient guilty pleas to keep the court's docket moving. Second, the court would consider the strength of the government's case. Although this calculation is difficult to perform, there is precedent for it in the context of the Bail Reform Act, and the calculation is absolutely necessary for the court to calibrate the plea/trial differential correctly. Third, the court would consider the resources needed to try the case. Fourth, the court would consider, based on all the information available to it, whether a large plea/trial differential would unduly coerce a plea under all the circumstances.

To give the defendant a firm basis for reliance, the court would generally be bound to its indicated sentences unless new information came to light after the announcement of the plea/trial differential that could not reasonably have been known at the time of the motion.

My proposal allows for the court to consider ex parte submissions in determining the indicated sentences. Otherwise, the parties would not bring to the court's attention certain critical information they were unwilling to disclose to each other, in the event the case proceeded to trial.

A. The Proposed Procedure

The following procedure could be expressly authorized by amendments to the Federal Rules of Criminal Procedure, (133) but even without such amendments, the Rules should provide federal judges sufficient authority to implement a motion procedure that helps the defendant make what is typically the most important decision in the case: on what terms to plead guilty. (134)

Early in the case, (135) the defendant could elect to have defense counsel file a "motion for indicated sentences." (136) The motion could be brief, stating requests for (1) the preparation of a pre-plea presentence report, (2) indicated guideline calculations and the indicated sentence on a guilty plea, (3) an indicated post-trial sentence, and (4) a hearing. If desired, the defense could concurrently file any other motion, such as a motion to suppress evidence. The motion would need to expressly waive any objections under Rule 32 concerning the disclosure of the presentence report to the court before the adjudication of guilt. (137)

As a threshold matter, the court could not consider the motion without sufficient discovery from the prosecution. Likewise, the more information the defendant had about the government's case against him, the better the decision he could make about his guilty plea. (138) Although federal law limits a defendant's right to pretrial discovery, (139) defendants in typical federal cases do receive enough discovery early in the case to litigate a motion for indicated sentences, although local rules may provide for early discovery. (140) Likewise, Department of Justice policy calls for most discovery to be produced early in the case. (141) Although early discovery generally improves the administration of justice, federal prosecutors are not required by law to turn over discovery early in the proceedings. (142) There are times where the prosecution has good reason not to provide early discovery, such as where such discovery might compromise ongoing investigations or endanger witnesses. In such cases, the prosecutor might inform the court, ex parte, of the circumstances, and the court might need to defer ruling on the motion for indicated sentences until sufficient discovery was provided.

Assuming there was sufficient discovery to proceed, the judge would advise the defendant personally as follows:
     You are presumed innocent throughout these proceedings. You have a
   right to plead not guilty and to persist in that plea. You have a
   right to a jury trial.

     Your attorney has indicated that you want a pre-plea, presentence
   report to be prepared in this case. Is that correct? If I agree and
   order the preparation of such a report, you will not be giving up
   any of the rights that I just explained to you. I will consult the
   pre-plea presentence report and conduct a hearing on the motion. I
   then will determine indicated sentencing guideline calculations and
   a maximum sentence should you decide to plead guilty, as well as an
   indicated maximum sentence should you be convicted by a jury. If
   your case proceeds to jury trial, the pre-plea presentence report
   will not be used against you.

     This motion procedure that you have requested is intended to give
   you information about possible sentencing outcomes so that you can
   make more informed decisions about your case. The pre-trial
   indicated sentence I give does not in any way obligate you to plead
   guilty. You have a right to a jury trial, and participating in this
   motion procedure does not in any way diminish that right. Do you
   have any questions about this procedure?

Following this colloquy, the court would order the preparation of a pre-plea presentence report and set a date for the hearing. The parties would follow the normal procedure laid out in Rule 32 for the preparation of that report, including submitting evidence in aid of the probation officer's presentence investigation, reviewing the draft report, submitting informal objections to the probation officer, receiving a final pre-plea presentence report, and filing formal objections with the court. The prosecution would need to provide discovery at this early stage of the case sufficient for the defense to litigate the motion for indicated sentences.

At the motion hearing, the parties could put on evidence that would be relevant at trial or sentencing. Because of the abbreviated nature and limited purpose of the proceedings, the court would have discretion to disallow or circumscribe witness testimony in lieu of affidavits. If the defendant elected to testify, his statements could not be introduced against him at trial except in cross-examination for inconsistent statements. The evidence and testimony adduced at the hearing also could be admissible at sentencing. Certain issues might need to be handled ex parte. For example, where witness safety concerns weighed against disclosing a witness's identity early in the case, the prosecution might provide to the judge an ex parte affidavit summarizing that witness's testimony. The defense might make ex parte submissions of its case to avoid revealing its trial strategy. After submitting evidence to the court, the parties could make argument relative to the contested sentencing issues, including the expected plea/trial differential.

Following the hearing, the court would advise the defendant of its indicated (estimated) maximum pre-trial sentence for the charges, assuming the defendant pleaded guilty, and an indicated plea/trial differential. The court also could make findings of fact and conclusions of law relating to sentencing guideline calculations, forfeiture, restitution, or any other sentencing issue that was the subject of the motion.

My proposal echoes a proposal from the 1970s, yet my proposal is detailed, tailored to the federal system, and updated by four decades of legal developments. (143) In 1972, Robert M. Sussman proposed that the court hold a plea bargaining conference and then order a proposed plea disposition and a proposed post-trial disposition. (144) The plea disposition would differ from the post-trial disposition by a "specific discount rate" that "would embody the median plea concession necessary to induce an administratively acceptable volume of guilty pleas in that jurisdiction." (145) Sussman's proposal differs radically from my proposal in its view of prosecutorial discretion to charge. Under his proposal, the judge would exercise "full responsibility for the concessions the defendant receives in exchange for his plea," (146) effectively abrogating prosecutorial discretion to charge. Because that discretion is a key feature of our system, Sussman's proposal is not feasible. (147)

Unlike Sussman's, my proposal calls for a case-specific plea/trial differential as opposed to a cookie-cutter "specific discount rate" for an entire jurisdiction. (148) Whatever the merits of this idea, it is unlikely that judges in any courthouse of appreciable size could agree on such a rate. The aim of my proposal is more modest but more realistic: because judges already impose trial penalties on a case-by-case basis, they should make their best effort to calculate that differential on a case-by-case basis so that the defendant can make an informed decision.

Finally, my proposal bears some similarity to a now superseded American Bar Association Standard. (149) Its proposal, unlike mine, permitted the trial judge to participate as a "moderator" in the plea negotiations and make his or her own plea offer, as long as defense counsel and the prosecutor agreed to the judge's participation. (150) The Standard contemplated the preparation of a pre-plea presentence report and an evidentiary hearing, the scope of which lay solely in the court's discretion. (151)
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Title Annotation:Introduction through III. A Proposal for Judges to Frame Plea Bargaining A. The Proposed Procedure, p. 61-89
Author:McConkie, Daniel S.
Publication:Stanford Law & Policy Review
Date:Jan 1, 2015
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