What To Make of Plea Bargaining? — Part II

A number of people have asked if I have a written-down copy of my opening statement in my plea bargaining debate with Clark Neily of Cato, sponsored by the Arizona State student chapter of the Federalist Society.  As it happens, I do.  It follows the break.

Plea Bargaining is, to be honest, not a particularly appealing subject, because a bargain is a compromise, and compromises don’t light up anyone’s life.  It’s also conceptually discomfiting, given the Constitution’s explicit preference for trials. Still, as our courts have uniformly and for good reason concluded, it is, in the practical world we are unlikely to escape, a functional and regrettably necessary means of resolving criminal cases.

There are two main reasons we conclude most such cases through negotiation. The first is this: We have so much plea bargaining because we have so much crime — millions and millions of serious crimes committed every year. The second and related reason is that we live in a world of scarcity, and in adjudication as in everything else, scarcity produces compromise. In other words, we reach settlements in criminal cases almost all the time for the same reason we reach settlements in civil cases almost all the time — that is, with significant cost savings, each side gets something it values, and values more highly than what it understands it would probably get by going to trial.

To get a better fix on the reason bargaining has become as prevalent as it is now, we need to understand how we got here. It’s not that hard: The number of trials, or some alternative to trials, is certain to increase when the demand for criminal adjudication increases — or in other words, when the amount of crime heads up.

Two generations ago, at the end of the “repressed” 1950’s, our country had an amount of crime we would now consider quaint — about three and a half million serious crimes a year. Through the Sixties, Seventies and Eighties, crime had metastatic growth in the United States. By 1991, we had more than four times that number — almost fifteen million serious crimes.

When your country has been the victim of a 30 year-long crime spree, and serious crime has increased by roughly 400%, the old ways of dealing with it are not going to work as they once did.  Or, to put it in one sentence: With only finite resources available to the system, an increase in plea bargaining was forced on us by a gigantic increase in the number of criminal cases.

None of this is to say, however, that the defendant’s bedrock constitutional rights can be, or have been, lost in the shuffle. This becomes clear when we recall a number of key facts — facts often forgotten in the hue and cry.

First, it is a shift, not a revolution. Even back in the Sixties and Seventies, the great majority — 75% or 80% — of cases were bargained rather than tried. So the modern trend, while certainly noteworthy, is one of degree, not kind.

Second, it remains true, now as then, that every defendant has the absolute right to demand a trial. If he makes that demand, a trial will be held, period. He can tell the prosecutor to take his bargain and put it in a dimly-lit area.

Third, the proposition that a defendant’s right to demand a trial is illusory because of various means of prosecutorial “coercion” is incorrect.  It’s true that there is “coercion” of a sort, but not the kind Clark has talked about. The “coercion” overwhelmingly consists of one thing: The evidence. The real reason defendants plead guilty is that they and their lawyers know they’re ice cold on the evidence and if they go to trial they’re going to lose. They plead guilty rather than watch the whole sordid mess get spelled out before an increasingly incensed judge and jury. That decision is not a product of intimidation. It’s a product of sanity.

This leads me to the fourth fact you should remember: That while plea bargaining is surely useful to the prosecution, the defense seeks it at least as eagerly, if not more eagerly, for its own purposes. In my experience, for example, the first question defense counsel asks when he calls on the prosecutor is not, “Could I see the case file?” It’s, “What’s the offer?”

Last week, a recently retired and very experienced state judge called to tell me about his experience with plea bargaining. He told me something I had never heard in my 25 years in the federal system. When the local prosecutor’s office was slow to come up with an offer for a deal, he said, defense counsel would ask him off the record to nudge the Assistant DA along so the case could — please — be disposed of without a trial.

This makes perfect sense. What Clark refers to as the “trial penalty” would more accurately be called the “plea bargain gift horse,” and it’s the rare defense lawyer indeed who wants to look it in the mouth. When the choices are (1) going to a trial you are all but certain to lose and have the judge impose a harsher sentence because your client falsely denied his guilt, or (2) cutting a deal where your client is answerable for only a fraction of the behavior the government could prove, and will get credit for acceptance of responsibility to boot, it’s not prosecutorial extortion that gives you the answer. It’s simply normal judgment.

A fifth, and key, fact you should bear in mind is that the law governing the acceptance of pleas has far more rigor and integrity than you may have been led to believe — integrity in insuring both that the plea is voluntary and that it truthfully reflects the defendant’s offense behavior.

In federal court, the governing standard is Rule 11, FRCP. It provides that, before the judge can accept a plea, he must personally and in open court address the defendant and advise him of a litany of rights he would have if he were to exercise his right to a trial, including, to name a few, the right to confront and cross-examine adverse witnesses, to be protected from compelled self-incrimination, to testify and present evidence, and to compel the attendance of witnesses.

For our purposes today, perhaps the two most important guarantees in Rule ll are these:

(b)(2) “ENSURING THAT A PLEA IS VOLUNTARY. Before accepting a plea of guilty or nolo contendere, the court must…determine that the plea is voluntary and did not result from force, threats, or promises (other than promises in a plea agreement).”

(b)(3) “DETERMINING THE FACTUAL BASIS FOR A PLEA. Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.”

Now let’s consider how those guarantees square with the claim that defendants “routinely” plead guilty, and are sent to prison, for things they didn’t do. In that regard, it’s helpful to know the specifics of how the “factual basis for a plea” is determined.

In negotiating the plea, the prosecutor and defense counsel hammer out a statement describing the offense to which the plea will be entered, and the defendant’s conduct in committing that offense.  At the Rule 11 hearing, the judge asks the prosecutor to state the factual basis for the plea, whereupon the prosecutor reads aloud the agreed-upon statement. The judge then turns to the defendant and asks him, “Is that what happened?” or, “Do you have any disagreement with that statement?” or some close variant of those questions. In the very unusual case where defendant shows any hesitation, the court will take a recess to allow the two sides to work it out if they can. If they can’t, the plea does not go down and case will be set for trial.

When, as in the typical case, the defendant agrees that the factual statement is an accurate account of his behavior, the court will then turn to defense counsel and ask him if he is satisfied that his client has had an adequate opportunity to discuss the statement of facts with him, and if he is satisfied that the defendant’s agreement to it is informed and voluntary. Again, the hearing will not go forward if counsel shows any hesitation in answering.

Now all my experience is in federal court, and the regimen in various state courts may be different. But I believe the great majority of states have plea taking procedures similar to, if not even more elaborate than, the ones I have described.

It is sometimes said that the Rule 11 hearing is just a show — nothing more than a “pro forma event during which both sides simply go through the motions.” For those who think that, I have an invitation: Go to a plea hearing and see for yourself. See for yourself whether the judge has a sleepy disinterest in whether the defendant he’s about to send to prison is guilty or not. See for yourself whether the prosecutor is so steeped in dishonesty, and so lacking in basic decency, that he will condemn an innocent man simply to put another scalp on the mantle. See for yourself whether the defendant’s lawyer is so oblivious, callous and corrupted that he plays a central part in the charade, knowing it’s all a pack of lies. And see for yourself whether all three are cooperating through winks and nods in what in any other context would be called a conspiracy.

Now maybe that IS what you’ll see. But in 25 years inside the system, I never did.

In sum, plea bargaining, while plainly less desirable than trials, is — given the protections that surround it — an adequate alternative, and one that became inevitable when our country faced an unprecedented explosion of crime.  The urge for efficiency in resolving cases arises, not from some dark motive, but  —  to the contrary  —  from the prosecutor’s keen awareness of the line of 1000 more crime victims outside his door awaiting their turn at justice.

Still, so that you won’t think I’m too much of an apologist for the status quo, let me close with three reforms I think would improve the system.

First, prosecutors should share exculpatory evidence at the plea bargaining stage even though the Constitution does not require it. Indeed, prosecutors should adopt an open file policy. This is not because it will help defendants. It’s because prosecutors need to be faithful to the underlying standard that the criminal justice system is not a game with moves; it’s a search for the truth.

Second, prosecutors should not make the first move toward a plea bargain. The first move should come from the defense or not at all. This will put to rest the corrosive and false belief that bargaining is just a cudgel of the carcereal state.

Third, we should make explicit in the canons of ethics that it is impermissible for defense counsel to assist in helping to convict, through plea bargaining or otherwise, a client who has unambiguously proclaimed his innocence, or whom counsel knows or has strong reason to believe is factually innocent. As the Supreme Court established in Georgia v. McCollum, 505 U.S. 42 (1992), some goals of the criminal justice system are more important than counsel’s wooden fidelity to what the client may think is in his best interest. In McCollum, it was the system’s need to rid itself of racist jury strikes; in the plea bargaining context, it’s the system’s need to be more forceful in demanding honesty in order to reduce the possibilities for erroneous outcomes.