PLEA BARGAINING
Paul Stuckle
Independent Research
Prof. Larkin
Spring 1983
"Have him cop to the indictment," the prosecutor says.
"I might as well try my luck with a jury. I couldn't
do worse," the defense lawyer says.
"I'll cut him loose from two of four counts."
"My man would pull the same time if he ate the four.
I need a walk."
"The boss won't go for a noncustodial unless your man
cooperates."
"I can ask him. But if he turns over, you have to give
him immunity on anything he talks to you about."
"See if he's interested. He's got to be willing to take
the stand."
"If he testifies, you've got to dismiss everything."
"I can't promise you that. His testimony wouldn't be
believable if the jury hears it was bought with that
kind of promise. I'll give him protection and a new
identity."
"111 talk to my man. How about lunch?"
The above dialogue is typical of the hundreds of discussions
that go on every day throughout the country. Here is a
translation: to cop to an indictment is to plead guilty
to all the charges against a defendant; to pull time is
to receive a prison sentence; to walk is to receive a
nonprison sentence--the defendant walks out of the courtroom; to turn over is to become a state's witness,
informing on former colleagues. Put all this together
and you have a prosecutor and a defense lawyer doing a
dance called plea bargaining.
Seymour Wishman
Confessions of a Criminal
Lawyer
I.
INTRODUCTION
This paper will take an indepth look at the practice of
plea bargaining.
Part one will introduce the procedure by
outlining its historical development and contemporary limitations, as seen through landmark court decisions.
Part two
will investigate two distinct jurisdictional viewpoints,
Alaska and the federal court system, demonstrating their
different approaches to plea bargaining.
Part three will
identify and illustrate the roles of the court officers
involved in plea negotiations.
The American legal system has been,throughout its history,
an adversary system.
This system is based on the assumption
that truth can best be ascertained through the legal mechanism
of confronting opposing parties who contend against each other
for a result favorable to themselves."'"
However, in the majority
of circumstances, American criminal justice jurisprudence
operates without the benefit of the adversary process.
In most
jurisdictions, including the federal courts, convictions in
criminal cases are the overwhelming result of guilty pleas.
The majority of these guilty pleas are the result of plea
bargaining.
Plea bargaining can be defined as "the process by
which the defendant in a criminal case relinquishes his right
to go to trial in exchange for a reduction in the charge and/
2
or sentence."
2
The practice of plea
the judicial system itself.
bargaining is as old as
However, until recent history,
it has met with consistent judicial condemnation.
Plea bar-
gaining had been a dirty word in most jurisdictions, as deals
between prosecutors and defense attorneys were made behind
closed doors in courthouse basements.
Since the practice was
outlawed, the involved parties, upon a successful deal, would
then in open court deny that any concessions were made to the
defendant in return for his plea of guilty.
This ritualistic
practice, known as going through the "orals," was a farce and
a mockery of justice and gave credibility to the general public'i
conception of criminal law practice as a dirty business.
Within the last decade, however, plea bargaining has come out
of the closet and has become an acceptable procedure which has
been openly tolerated by the judiciary.
"For most jurisdic-
tions plea bargaining has become a firmly entrenched and
virtually indispensable component of the criminal justice
3
system."
During most of the history of the common law, pleas of
guilty were actively discouraged by English and American courts.'
Instead, the trial process and litigation was thought "the
safest test of j u s t i c e . T o d a y , however, most criminal cases
do not result in trials.
According to federally documented
statistics, ninety percent of all criminal charges brought by
prosecutors in the United States result in some form of guilty
plea, which is usually the end product of a plea negotiation
between the parties.^
V
All commentators agree that despite
<v.
H
O
3
all of the controversy which surrounds the practice of plea
bargaining, there is an overriding recognition of the administrative limitations which are inherent in the judicial system.
Few supporters of plea bargaining would argue that it would
be preferable to continue dealing instead of taking each and
every case and trying all of them on the merits or of accepting
only non-negotiated guilty pleas.
However, few critics of
plea bargaining would argue that such a procedure would be
practical without the very real possibility of placing an
intolerable strain on the criminal justice system.
The war between crime and society is not a small one.
It is a numbers game chat has been increasing geometrically over a period of years. In 1977 the federal
district courts disposed of cases involving 53,168
criminal defendants, although the district courts conducted only 7,222 criminal trials. The average length
of criminal cases is also increasing, since the U. S.
Supreme Court in the 1960's made discoveries concerning
new constitutional rights such as an accused's right to
counsel at lineup, the right to prophylactic Miranda
warnings, pretrial voluntariness-of-confession hearings,
suppression-of-evidence hearings, and a host of other
less significant procedural safeguards that all require
lengthy pretrial litigation.?
Law professor Albert Alschuler, a leader in plea bargaining
research, agrees with the above statistical analysis.
According
to Alschuler:
The guilty-plea system has grown largely as a product
of circumstance not choice. The volume of crime has
increased . . . the length of the average felony trial
has substantially increased . . . These developments
have led in a single direction: there is today an
administrative crisis of major proportions in our
criminal courts."
Alschuler also notes that while the criminal caseload in most
major cities
has virtually doubled within the last decade,
the number of judges presiding over these cases has remained
about the same.
9
Alschuler offers these comments:
The voters of America are apparently concerned about
crime--but not enough to approve bond issues for new
courthouses. Only the guilty-plea system has enabled
the courts to process their caseloads with seriously
inadequate resources. The invisible hand of Adam Smith
is at work. Growing concessions to guilty-plea defendants have almost matched the growing need to avoid the
burdensome business of trying cases. As recently as
the 1920*s, the legal profession was largely united in its
opposition to plea bargaining. As America's dependency
on pleas of guilty increased, however, attitudes changed.
The American Bar Association and the President's Commission
on Law Enforcement and the Administration of Justice are
among the prestigious observers who have given plea bargaining the remarkably good press that it enjoys today.
Most of these observers recognize that the guilty plea
system is in need of reform, but the legal profession now
seems as united in its defense of plea negotiations as it
was united in opposition less than a half-century ago.
While the public on the whole seems to take the position
that plea bargaining is an abhorrent practice, the highest
court in the land, the United States Supreme Court, has led
the crusade to legitimatize the bargained plea.
The Court
in Santobello v. New Y o r k ^ stated:
The disposition of criminal charges by agreement between
the prosecutor and the accused, sometimes loosely called
"plea bargaining," is an essential component of the
administration of justice. (emphasis added) Properly
administered, it is to be encouraged. If every criminal
charge were subjected to a full-scale trial, the States
and the Federal Government would need to multiply by
many times the number of justices and court facilities.
The Santobello Court went on to comment that plea bargaining
was desirable for many reasons including:
(1) prompt disposi-
tion of criminal cases; (2) avoidance of prolonged inactivity
for defendants confined in jail awaiting trial; (3) protection
of the public from those defendants who would commit crimes
AfiOl *~f
VU^.1. |
5
while out on bail; and (4) improving the individual defendant's
chances for successful rehabilitation due to the shortened
13
time between the charge and incarceration.
The general public tends to view plea bargaining as a
method for a criminal to escape some of the liability for acts
he committed.
On the other hand, many critics of the process
attack plea bargaining because they see it as a way for the
prosecutor to pressure innocent persons into pleading guilty
for acts which they did not commit.
The prosecutor, however,
pursuant to his ethical duties cannot bring charges against
an individual unless he has probable cause to believe the
individual is guilty of some crime.^
David Nissman, a district
attorney and law professor in Oregon, believes that:
as a practical matter it is the defendant, through his
attorney, who approaches the prosecutor begging for a
deal. One unfortunate consequence of plea bargaining
is that nowadays few experienced criminals are willing
to plead guilty to charges without concessions, no
matter how strong the case is against t h e m .
In order to further explain the American system of plea
bargaining, it is necessary to define the various types and
forms a negotiated plea may take.
"The underlying concept in
any plea negotiation is that the criminal will plead guilty to
some offense in exchange for a binding promise from the prosecutors that he will see that the defendant's criminal liability
1 (C
is limited."
Plea bargaining can be broken down into two
major categories:
charge bargaining and sentence bargaining.
Essentially, in charge bargaining the defendant waives his
right to a trial in exchange for a reduced charge.
One common
6
form of a charge bargain is where the defendant will plead
guilty to a lesser included offense.
For example:
A defendant is charged with theft in the first degree
or grand larceny. This involves a theft of property
that is in excess of a stated value. A prosecutor might
offer the defendant the option of pleading to theft in
the second degree or petty larceny, even though there is
no dispute over the value of the property. In this
example the defendant receives the benefit of being
allowed to plead to what is a misdemeanor in most states
while avoiding the felony liability associated with
Theft I or grand l a r c e n y . 1 7
Another type of charge bargaining is where a defendant will
plead guilty to the charge but the prosecutor will agree to
recommend misdemeanor treatment.
Continuing the previous
example under these changed circumstances:
Assume Theft I, a felony, carries a maximum sentence of
five years in the penitentiary. Assume that Theft II,
a misdemeanor, carries a maximum penalty of one year
in the county jail. In this type of plea negotiation the
defendant pleads guilty to the stated charge, Theft I.
The state then agrees to recommend that it be treated as
a misdemeanor, usually at the conclusion of a probationary
term. The advantages to the state in entering this type
of agreement, as opposed to a plea to a lesser degree,
is that if the defendant does not successfully complete
probation, the judge may then send the defendant to
the penitentiary.1°
Sentence bargaining is the procedure in which the prosecutor
stipulates to or recommends to the court a particular sentence,
probation, or other specific disposition in exchange for a
guilty plea.
Frequently, the process represented as charge
bargaining is also sentence bargaining since a charge reduction
19
usually has a corresponding reduction in the actual sentence.
Probably the most frequently used plea negotiation is the
sentence bargain in which the prosecutor will make a recommenda
tion at the sentence hearing to the court for a specific term
7
of jail time.
"In one variation, the prosecutor may agree to
a lid of a specific number of years.
Or he may agree to
20
recommend no jail at all."
Sentence bargaining is the
essence of plea bargaining in that it permits the defense
counsel to intelligently inform his client of the maximum
sentence to be expected.
Of course, this information is
extremely important to the defendant as he is usually very
concerned about how much time he will be spending in jail or
prison.
Also when the defendant has some idea of his maxi-
mum punishment, he perceives the system as being
more pre21
dictable and equitable, and less arbitrary.
Sentence bar-
gaining is more prevalent than charge bargaining in most
jurisdictions, and trial judges are normally
the chief pro22
ponents of this type of negotiation.
Nissman offers a couple of additional plea bargaining
situations:
A more subtle type of plea bargaining takes place when
a defendant pleads guilty to indicted charges in exchange
for a promise not to prosecute him on charges that he has
not yet been indicted for but of which he is culpable.
The less subtle variation of this arrangement is when
a defendant may plead guilty to some of the pending
charges against him in exchange for a dismissal of
other pending
charges.23
Although the trial judge's role will be covered in greater
detail in upcoming sections, it is appropriate to make a few
comments concerning his function in this introductory segment.
In general, judges are prohibited from joining in the actual
plea negotiations which are going on between the prosecutor
and the defense attorney.
However, as one author implies,
8
the ban on judicial interference may be more "theoretical
9/
than practical."
Courts with overcrowded dockets frequently demand that
litigants settle their cases. It is not uncommon to
be in the midst of trial when the judge suddenly calls
a recess and invites counsel to report to chambers,
where the judge demands that the lawyers strike a deal.
Although there is not much doubt that such practices
are questionable, they do occur with some degree of
regularity.25
Most trial judges recognize the value of guilty pleas and
negotiations in relation to alleviating their heavy caseload.
However, the degree to which a judge will allow himself to be
bound to such an agreement varies with each individual on the
26
bench.
"Binding a judge means that the judge listens to the
recommendation of the prosecutor in chambers with the defense
counsel present and agrees not to sentence
the defendant beyon
27
the recommendation of the prosecutor."
Of course, some
judges regularly allow themselves to be bound to the plea
bargain while others will seldom agree to be bound.
Many district attorneys believe that there are only three
legitimate reasons to plea bargain a case:
"there is some
peculiarity about the case that makes it desirable not to go t
trial; there is some peculiarity about the defendant that make
the prosecutor want to give him the benefit of a plea bargain;
or the prosecutor may
28 want to use a particular defendant agair
another defendant."
Professional codes of ethics mandate
that a prosecutor should never accept a guilty plea unless he
has probable cause to believe the defendant is guilty.
Often
the situation arises where the prosecution knows the defendant
9
is guilty but they also know that the defendant's guilt could
never be proven in court.
For example, the prosecutor may have
evidence which would be enough to convict a defendant by proving
guilt beyond a reasonable doubt, but the evidence may be tainted
or patently illegal.
A policeman could have violated the
defendant's fourth amendment rights by conducting an unreasonable search and seizure, and the prosecutor knows the exclusionary rule will prevent the use of the illegal evidence at
trial.
The possibilities of having a guilty defendant but also
having a "bad case" are endless.
They range from illegal
evidence subject to a motion to suppress, nonproduction of
witnesses, "defendants" judges, to a poor jury panel.
In
such cases, the prosecutor may realize that if he does not
strike up a deal with the defendant, the latter may soon be
29
a free man.
When the defendant enters into a plea negotia-
tion on this basis, this does not render the plea invalid.
The Supreme Court discussed this issue in McMann v. Richardson,^
a 1980 case in which the defendant claimed that his conviction
should be overturned because his confession was involuntary,
and therefore the state, if put on its proof, would not have
been able to convict the defendant.
The Court rejected that
concept and upheld the defendant's conviction.
The prosecutor also may use his discretion and recognize
that a particular defendant should not be subjected to the
maximum penalty afforded by the criminal justice system.
He
may want to give a first time offender, or a juvenile a break
and not prosecute to the full extent of the law.
In situations
10
like these, a bargained plea may provide more "justice" than
a criminal trial.
One definite reason to attempt a negotiated plea is when
there is an opportunity to pit one defendant against another
to try and convict the really bad guy.
"Conspiracy statutes
recognize that combinations of criminals are geometrically
more dangerous than those acting alone.
Often the little fish
are the easiest to catch but the most insignificant to convict
32
in stopping organized criminal activity."
The prosecutor
may want to bargain with one defendant and offer him immunity
or a reduced sentence if he turned "states evidence" against
other defendants.
Again, under these circumstances a plea
bargain may produce a better result for everyone involved.
As mentioned earlier, plea bargaining was originally
banned in American jurisprudence.
Early cases show that the
defendant's right to a jury trial was highly protected.
The
first case to discuss the guilty plea was Commonwealth v.
33
Battis,
a Massachusetts case in 1804.
The Court in that
case induced
"conducted
an investigation
to ensure
that of
the
plea was
O /.
not
by promises,
persuasions,
or hopes
pardon."
35
In Cornelison v. Commonwealth,
a Kentucky case in 1886,
"the defendant pleaded guilty in the hope of avoiding standard
sentencing recommendations by the prosecutor.
Court of Appeals stated:
The Kentucky
'A plea, special in its character
for the purpose of avoiding such inquiry, should not be allowed
to be filed."'36
As late as 1957, in Shelton v. United States, 37
the 5th Circuit issued a now infamous decision in which the
11
court proclaimed that:
"justice and liberty are not the sub38
jects of bargaining and barter."
The movement towards judicial acceptance of plea bargains from the highest court of the land began in 1964 in a
little known per curiam opinion which was issued in Nagleberg ~
39
United States.
In Nagleberg the U. S. Supreme Court sanctioi
a procedure that allowed a defendant who cooperated with goven
ment authorities to plea guilty to a lesser charge than the on
for which he was indicted.^
Brady v. United States.^
In 1970 the Supreme Court decide'
In Brady the Court openly endorsed
plea bargaining as a constitutionally permissible method of
obtaining guilty pleas in criminal cases. The Court stated:
We decline to hold, however, that a guilty plea is
compelled and invalid under the Fifth Amendment whenever
motivated by the defendant's desire to accept the certainty or probability of a lesser penalty rather than
face a wider range of possibilities extending from
acquittal to conviction and a higher penalty authorized
by law for the crime charged . . . For a defendant who
sees slight possibility of acquittal, the advantages of
pleading guilty and limiting the probable penalty are
obvious--his exposure is reduced, the correctional
processes can begin immediately, and the practical burder
of a trial are eliminated. For the state there are also
advantages--the more promptly imposed punishment after
an admission of guilt may more effectively attain the
objectives of punishment; and with the avoidance of trial
scarce judicial and prosecutorial resources are conservec
for those cases in which there is a substantial issue
of the defendant's guilt or in which there is substantial
doubt that the State can sustain its burden of proof. It
is this mutuality of advantage that perhaps explains the
fact that at present well over three-fourths of the
criminal convictions in this country rest on pleas of
guilty, a great many of them no doubt motivated at least
in part by the hope or assurance of a lesser penalty
than might be imposed if there were a guilty verdict
after a trial to judge or jury . . . Of course, that the
prevalence of guilty pleas is explainable does not
necessarily validate those pleas or the system which
produces them. But we cannot hold that it is unconstitutional for the State to extend a benefit to a defendant
0° A
12
who in turn extends a substantial benefit to the State
and who demonstrates by his plea that he is ready and
willing to admit his crime and to enter the correctional
system in a frame of mind that affords hope for success
in rehabilitation over a shorter period of time than
might otherwise by necessary.
Putting aside the Court's idealistic and naive misconceptions of the correctional system, the Brady decision rests upon
an assumption of mutuality of advantage wherein plea negotiations offer benefits to both the defendant and the state.
The Court seems to imply that plea bargaining is not the ideal
manner in which to dispose of criminal cases, but as a practical
matter, it would not strike down a practice that the system
depends on to run efficiently.
Now that plea bargaining has been given the official
stamp of judicial tolerance, it is time to investigate the
actual mechanics of the process.
An agreement between the
prosecutor and the defense attorney to pursue an eventual
bargain is only one phase of the plea-negotiation process.
As mentioned earlier, the defendant next must overcome a procedural ritual, known as "getting through his orals."
This pro-
cedure places the defendant in open court before the trial
judge where the latter will make a full inquiry into the plea
of guilty.
"First, the plea must be voluntarily made.
there must be a factual basis for the plea.
Next
This simply means
that the defendant must admit to conduct that makes him culpable
43
of the offense to which he is pleading guilty."
In McCarthy
v. United States,^ the Supreme Court explained the necessity
of requiring a finding of a factual basis:
13
The judge must determine that the conduct which the
defendant admits constitutes the offense charged in
the indictment or information of an offense included
therein to which the defendant has pleaded guilty.
Requiring this examination of the relation between the
law and the acts the defendant admits having committed
is designed to protect a defendant who is in the position of pleading voluntarily with an understanding of
the nature of the charge but without realizing that his
conduct does not actually fall within the charge.
After the court has determined that the plea is voluntary and
that a factual basis exists, it is extremely important that
a record be made showing the defendant has in fact waived:
"(1) his right to trial by jury; (2) his right to cross-examine
witnesses against him; (3) the right to call witnesses in his
own behalf; and (4) the right to be represented by counsel at
trial.The
Supreme Court held in Boykin v. Alabama^*7 in
1968 that a waiver of the above rights will not be presumed
solely because the record is silent in that regard.
Situations arise when a defendant wants to plea bargain,
but cannot get "through his orals" because he insists on his
innocence.
At first glance it would seem that it would be
unconstitutional for a court to accept a guilty plea from a
defendant who steadfastly refuses to admit guilt.
Also, there
is an ethical problem for the defense attorney
when a guilty plea would apparently be to a client's
advantage, when the client recognizes that fact and
is willing to plead guilty, and when, indeed, only
one consideration may lead the defense attorney to
hesitate: the client insists that, despite the evidence
against him, he is innocent of any crime.
Surprisingly, however, the Supreme Court held in a 1970 case,
49
North Carolina v. Alford
that under certain circumstances
a trial court may constitutionally accept the guilty plea of
14
a defendant who claims to be innocent.
mixed emotions over this ethical issue.
Defense lawyers had
Chicago defense
attorney Sherman Magidson offered these comments;
A lawyer's function is simply to minimize the painful
consequences of criminal proceedings for his client.
If, for example, I get an offer of probation in a
felony case, I jump at it. It doesn't matter whether
the client tells me that he is innocent, whether I
believe him, or even when I'm 90 percent sure of an
acquittal. So long as there is a 10 percent chance of
a prison sentence, the client is better off to p l e a d . 5 0
Alschuler added this thought:
Many lawyers said that although they would not countenance
a guilty plea when a client maintained that he was entirely
uninvolved in an alleged criminal incident, they did not
apply the same principle when the client asserted a claim
of self-defense, entrapment, lack of criminal intent,
or the like.5l
In other words many criminal defense attorneys will permit
an Alford guilty plea when their client tells them that he was
morally justified in committing the act or that he had a legal
defense.
Alschuler states, "So long as there was no claim that
the state had charged the wrong person, these attorneys saw no
52
ethical bar to the entry of a plea of guilty."
However, the main reason criminal defense attorneys do
not like Alford pleas is pure self interest.
They are con-
cerned that if a client who claims innocence pleads guilty,
that somewhere down the road the client would file a writ in
prison claiming the attorney forced an "innocent" man to plead
53
guilty.
Sam Adam, a Chicago defense attorney, expressed
this thought which is probably representative of many lawyers:
"I don't want to be caught in the middle when a defendant claims
that his guilty plea was i n v a l i d . A c c o r d i n g to Alschuler,
15
public defenders are subjected to more claims of ineffective
assistance of counsel than are private retained criminal
attorneys, and therefore the former are more wary of Alford
pleas than the latter.
"I cannot defend our rule (to stay
away from entering Alford Pleas) on grounds of principle,"
said Philadelphia's Vincent J. Ziccardi.
"It is, frankly,
56
a self-servicing rule."
However, not all public defenders
shy away from entering guilty pleas on behalf of assertedly
innocent defendants, as illustrated by Paul G. Breckenridge,
Jr., the Chief Deputy Public Defender in Los Angeles:
Most defender offices are afraid of their shadows. They
are paranoid about the possibility that a client may
accuse them of misconduct. But I'm a lawyer. My job
is to protect my clients, not myself. I have to have
a thick skin.57
The ethical problems inherent in the Alford plea situation do
not appear very often in actual practice.
Of course, most
defendants deny their guilt when first meeting with their
defense attorneys.
After the attorney conducts his factual
investigation he may feel that his client stands a good chance
of being convicted.
Also, he may be able to derive a promising
bargain from the prosecution.
The defense attorney is under
a duty to tell his client that in his judgment it would be
the best course for the client to take the bargain and forego
a trial.
If the defendant is persuaded that he would in all
likelihood receive a harsher punishment if he insists on going
to trial, he will probably agree with his attorney to cop the
CO
plea.
In fact, Alschuler confirms this point:
Defense attorneys confirmed that the problem of the
"innocent" defendant usually "washed out" once a
C02"8
16
defendant had been convinced that a plea agreement was
truly in his interest. "You'd be surprised how few
defendants remain innocent once they understand the
en
situation," said Oakland Public Defender James C. Hooley.
In Alford, the defendant was charged with first-degree
murder and was afraid that he would be subjected to capital
punishment if he insisted on going to trial.
Alford pleaded
guilty to murder in the second degree and received a 30-year
sentence in the North Carolina Department of Corrections.
When the defendant pleaded guilty
he added the following comment:
I pleaded guilty on second-degree murder because they
said there is too much evidence, but I ain't shot no man,
but I take the fault for the other man. We never had an
argument in our life and I just pleaded guilty because
they said if I didn't they would gas me for it, and that
is all. 60
The Supreme Court acknowledged that the American scheme of
justice normally requires an admission of guilt to base the
final entering of a judgment against the defendant, but it
held that such an admission ;
is not a constitutional requisite to the imposition of
a criminal penalty. An individual accused of crime may
voluntarily, knowingly, and understandingly consent to
the imposition of a prison sentence even if he is unwilling
or unable to admit his participation in the acts constituting the crime.61
To support its position the Court used the following language
from a variety of lower courts:
1.
2.
3.
[A court should not] force any defense on a defendant
in a criminal case, [particularly when advancement
of the defense] might end in disaster.
An accused, though believing in or entertaining
doubts respecting his innocence, might reasonably
conclude a jury would be convinced of his guilt and
that he would fare better in the sentence by pleading
guilty.63
Reasons other than the fact that he is guilty may
induce a defendant to so plead . . . and he must be
permitted to judge for himself in this respect.64
o
p
9
?
a
17
The Supreme Court noted that there was indeed a factual
basis presented as the State had a very good case of murder
in the first degree against Alford.
The Court also said that
its holding "does not mean that a trial judge must accept every
constitutionally valid guilty plea merely because a defendant
wishes to so plea.
A criminal defendant does not have an abso-
lute right under the Constitution to have his guilty plea accepted
fi s
by the court."
The majority opinion also indicated that in
order for an Alford type plea to be valid the trial court must
conduct a hearing before it accepts a guilty plea from a defendant claiming to be innocent.
In its usual fashion, however,
the Court did not offer any suggestions on what type of hearing
66
must be held.
The Court only mandated that some independent
evidence of guilt was necessary to justify the acceptance of an
C
-j
Alford plea.
Apparently, the standard for the Alford plea
is basically the same as that required by the federal rules
before the court can accept any guilty plea:
opinion:
factual basis.
there must be a
Alschuler attacks this aspect of the Alford
Few defendants are arrested by the police, charged by
prosecutors, and indicted by grand juries in the absence
of some incriminating evidence. Virtually every defendant
in the criminal courts therefore "might be guilty," and
in that sense, there may be a "factual basis" for virtually every Alford plea. The requirement that an Alford
plea be supported by independent evidence could thus
become more a salve to troubled consciences than a
meaningful safeguard of the fairness of guilty-plea
convictions . . .
Of course, no civilized legal system
sends people to prison because they "might be guilty"
or because there is a "factual basis" for their convictions. A civilized legal system sends people to prison
because they are guilty.68
18
Some commentators, of course, feel that when the justice
system "fails to provide trials for defendants who deny their
guilt and who may in fact be innocent, the result is . . .
69
distressing."
As Alschuler maintains:
"One may reasonably
be offended by the cheapness, the hypocrisy, and the injustice
of a system that cares too little about the truth to test a
denial of guilt through the time-honored mechanism designed
for that purpose (the t r i a l ) . H o w e v e r , Alschuler proves
that he has the frame of mind required of an effective attorney
by advocating the other side of the argument:
. . . both courts and defense attorneys should recognize
a "right" of the innocent to plead guilty. So long as a
defendant has something to gain by entering a plea
agreement, it is unfair to deny him the choice. Whether
the defendant denies his guilt, whether his attorney
considers him innocent, and whether the trial court might
feel more comfortable after a trial should not be determinative. In practice, a "rule" against permitting defendants
to plead guilty when they claim to be innocent usually
fails to achieve its goal. It merely leads assertedly
innocent defendants to make coerced confessions to their
attorneys and to the courts . . . even if a defendant
denies his guilt and even if he would apparently stand
a better than even chance of acquittal, the choice must
be his to make. ^
Another major issue that the Supreme Court tackled in 1971
was the question of whether a defendant has a right to specific
performance of the state's promises which induced him to enter
a plea.
The answer was clearly yes, the defendant does have
such a right even though it has not really been ascertained
whether it is a constitutional right or a contractual right.
72
The Court answered this question in Santobello v. New York.
In that case the state, through one assistant district attorney,
made a promise to the defendant about sentence recommendations.
00231
19
However, at sentencing many months later, a different assistant
district attorney recommended the maximum sentence.
The defen-
dant tried to withdraw his plea, but the trial court refused
to allow the withdrawal.
The Court held that the "interests
of justice and proper recognition of the prosecutor's duties in
relation to promises made in connection with any agreement on
73
a plea of guilty require that the judgment be vacated."
A difficult area for the courts has been that concerning
threats of further prosecution during plea negotiations.
The
prosecutor's decision to recharge a defendant after he withdraws a guilty plea has been limited by recent judicial cases
resting on constitutional law grounds, particulary due process.
The courts have primarily been concerned with the very real
possibility of prosecutorial vindictiveness or retaliation.
The requirement for the state not to act out of vindictiveness
74
was developed in the case of North Carolina v. Pearce.
In
Pearce the Supreme Court found that a judge had resentenced
a defendant to a longer prison term on 75
retrial after he successfully overturned an earlier conviction.
The Court ruled
that due process requirements mandate that a defendant is to
be free from such fears of retaliation.
In Blackledge v.
7 fi
Perry
the Supreme Court applied the Pearce principle to
prosecutors who are involved in plea negotiations.
In Perry
the Court:
Ruled that due process requires that a convicted misdemeamr\+ be free from the fear of prosecutorial retaliation when asserting his statutory right to appeal under
North Carolina's two-tiered appellate process, which
assured him a trial do novo in Superior Court upon
20
conviction. It was, therefore, constitutionally impermissible to bring a more serious charge against him
before the trial de novo proceeded. 77
In Perry, the Court pointed out that there was no evidence of
prosecutorial vindictiveness.
However, the Court made it clear
that the mere opportunity for, or the appearance of, retaliation
was sufficient to inhibit a defendant's exercise of procedural
rights and to render invalid his conviction based upon a subse78
quent felony indictment.
Faced with similar problems, the lower courts have followed
the same line of reasoning in construing
79 the requirements of due
process.
In United States v. Jamison,
the Court of Appeals
reversed a first-degree murder conviction of a defendant who
previously had been tried for second-degree murder and had
been granted a mistrial. 8 0 Similarly, in a 1975 case, "united
81
States v. De Marco,
subsequent to the defendant's motion for a
change of venue, the prosecutor obtained a new indictment which
charged the defendant with a more serious offense.
The court
held that this was 82
error and punished a defendant exercising
83
a procedural right.
In United States v. Ruesga-Martinez
the defendant refused to waive his right to trial by a district
judge and the prosecutor responded by upping the ante with a more
serious charge.
The Ninth Circuit Court of Appeals in Ruesga-
Martinez held that a defendant may not be charged with a felony
after he refused to plead guilty to a misdemeanor, unless there
84
was a sufficient reason to increase the charge.
This was the
trend before the Supreme Court's decision in Bordenkircher v.
Hayes 85 in 1978.
21
In Bordenkircher, Paul Lewis Hayes (respondent) was
indicted in Kentucky for uttering a forged check.
The penalty
attached to the statute called for imprisonment for a period
of two to ten years.
The respondent was arraigned and then
a pretrial conference was held in which the prosecutor offered
to recommend a five year sentence if Hayes would waive a trial
and plead guilty.
In addition, the prosecuting attorney admonished
Hayes that if he did not plead guilty he would be prosecuted.
Under this enhancement statute he would face a mandatory life
sentence rather than the two to ten year sentence.
The respon-
dent turned down the prosecutor's offer and insisted on a fullscale trial.
The prosecutor then went back to the Grand Jury
and reindicted Hayes under the habitual criminal act since the
forged check offense was his third felony offense.
The jury
returned a verdict of guilty, and Hayes was sentenced to life
imprisonment.
court.
The Kentucky Court of Appeals affirmed the trial
Respondent then filed a habeas corpus writ to the United
States District Court for the Eastern District of Kentucky.
The court held that the enhancement statute did not constitute
cruel and unusual punishment nor did the reindictment violate
any of the respondent's constitutional rights.
However, on
appeal to the United States Court of Appeals for the Sixth
Circuit, the court reversed and remanded with instructions to
release the respondent after he served his sentence for the
unenhanced offense of uttering a forged instrument.
The Court
of Appeals believed that the prosecutor was acting vindictively.
Therefore, it held that t^ieS^ate may not bring an habitual
§
3 -riS,
V*&VJr
i
22
offender indictment against a defendant who earlier refused
to plead guilty to an indictment for the same unenhanced
offense.
The State of Kentucky petitioned for writ of
certiorari to the United States Supreme Court.
Certiorari
was granted and in an opinion by Justice Stewart the Court
87
reversed the decision of the Court of Appeals.
In Hayes:
The United States Supreme Court considered whether a
prosecutor violated the defendant's due process rights
by carrying out his threat to reindict the defendant
under a recidivist statute after the defendant refused
to plead guilty. Finding no due process violation,
the Court held that the consequent increase in the
defendant's sentence was the result of plea bargaining.
It determined that the recidivist charge was fully
justified by the evidence, that the prosecutor had the
evidence to charge Hayes under the recidivist statute
when the original indictment was obtained, and that Hayes
knew the terms of the offer when he made the decision
not to plead guilty. Since the defendant was in a plea
bargaining situation in which he could accept or reject
the prosecutor's offer, the prosecutor's response was
not punishment or retaliation. One's right to due process
is violated, the Court reasoned, when he is punished for
exercising a legal right, but facing the choice between
demanding a trial or the possibility of a more severe
sentence is a legitimate consequence of plea bargaining
rather than a punishment. In reaffirming the plea bargaining process, the Court acknowledged that the prosecutor's interest was to persuade the defendant to waive
his right to trial. The majority noted that the situation would have been no different if Hayes had originally
been charged as a recidivist and the prosecutor had
offered to drop the recidivist charge in exchange for the
guilty p l e a . 8 8
In Bordenkircher, the Court did not overrule its holding in
89
90
either North Carolina v. Pearce
or Blackledge v. Perry,
as it did not in any way suggest that a vindictive or retaliatory action on the part of the prosecutor would be judicially
tolerated.
The Court was mainly emphasizing that:
"in the give-
and-take of plea bargaining, there is no such element of punishment or retailiation so long as the accused is free to accept
24
or reject the prosecutor's offer.
,91
Not everyone would agree
with the Supreme Court's analysis, however, as the following
excerpt from Mary Byrd Hover, 10 St. Marys L. J. 329,
illustrates:
There is a difference, however, between cases where the
disparity in sentences is the result of the defendant's
own choice of strategy and cases where the greater sentence is a result of retaliation on the part of the
prosecutor . . . When a defendant waives one of his
statutory or constitutional rights, such as his right
to trial, that waiver must be voluntary. Coercion may
exist in a variety of forms arising from the conduct
of the prosecutor. In the instant case, Hayes was indicted
under the recidivist statute because he would not plead
guilty. The prosecutor warned that if Hayes did not
save the court the inconvenience of going to trial he
would face the additional charge. The prosecutor
attempted to coerce Hayes into pleading guilty by
threatening him with a life sentence instead of the
two to ten year sentence which he originally faced.
Unlike the trial strategy cases, the escalation of the
defendant's sentence in the case was due to prosecutorial
vindictiveness.
In this section the history, development and constitutional
considerations of plea bargaining have been presented.
We have
seen the predominance of plea bargaining in contemporary
criminal law along with its inherent forms and mutations.
The underlying reasons for the current emphasis on a bargain
system instead of a trial system have been explained.
The
following section will examine the actual practice of plea
bargaining by investigating two systems which treat the procedure in very different ways:
of Alaska.
the federal system and the state
25
II.
A.
Federal Practice:
PLEA BARGAINING SYSTEMS
F.R.C.P. 11
The federal courts are bound to follow, in criminal cases,
the Federal Rules of Criminal Procedure.
The federal rule which
encompasses plea negotiations is F.R.C.P. 11.
First, the rule
will be stated verbatim, followed by an analysis of the Advisory Committee's Notes for the advancement and ultimate promulgation of the rule and its subsequent amendments.
Rule 11.
Pleas
(a) Alternatives. A defendant may plead not quilty,
guilty, or nolo contendere. If a defendant refuses to
plead or if a defendant corporation fails to appear,
the court shall enter a plea of not guilty.
(b) Nolo Contendere. A defendant may plead nolo contendere only with the consent of the court. Such a plea
shall be accepted by the court only after due consideration of the views of the parties and the interest of the
public in the effective administration of justice.
(c) Advice to Defendant. Before accepting a plea of
guilty or nolo contendere, the court must address the
defendant personally in open court and inform him of,
and determine that he understands, the following:
(1) the nature of the charge to which the plea is offered,
the mandatory minimum penalty provided by law, if any,
and the maximum possible penalty provided by law,
including the effect of any special parole term; and
(2) if the defendant is not represented by an attorney,
that he has the right to be represented by an attorney
at every stage of the proceeding against him and, if
necessary, one will be appointed to represent him; and
(3) that he has the right to plead not guilty or to persist in that plea if it has already been made, and that
he has the right to be tried by a jury and at that trial
has the right to the assistance of counsel, the right
to confront and cross-examine witnesses against him, and
the right not to be compelled to incriminate himself;
and
26
(4) that if his plea of guilty or nolo contendere is
accepted by the court there will not be a further trial
of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial; and
(5) that if he pleads guilty or nolo contendere, the court
may ask him questions about the offense to which he has
pleaded, and if he answers these questions under oath,
on the record, and in the presence of counsel, his
answers may later be used against him in a prosecution
for perjury or false statement.
(d) Insuring that the Plea is Voluntary. The court shall
not accept a plea of guilty or nolo contendere without
first, by addressing the defendant personally in open
court, determining that the plea is voluntary and not the
result of force or threats or of promises apart from a
plea agreement. The court shall also inquire as to
whether the defendant's willingness to plead guilty or
nolo contendere results from prior discussions between
the attorney for the government and the defendant or his
attorney.
(e) Plea Agreement Procedure.
(1) In General. The attorney for the government and the
attorney for the defendant or the defendant when acting
pro se may engage in discussion with a view toward
reaching an agreement that, upon the entering of a plea
of guilty or nolo contendere to a charged offense or to
a lesser or related offense, the attorney for the government will do any of the following:
(A) move for dismissal of other charges; or
(B) make a recommendation, or agree not to oppose the
defendant's request, for a particular sentence, with the
understanding that such recommendation or request shall
not be binding upon the court; or
(C) agree that a specific sentence is the appropriate
disposition of the case.
The court shall not participate in any such discussions.
(2) Notice of Such Agreement. If a plea agreement has been
reached by the parties, the"court shall, on the record,
require the disclosure of the agreement in open court or,
on a showing of good cause, in camera, at the time the
plea is offered. If the agreement is of the type specified in subdivision (e)(1)(A) or (C), the court may
accept or reject the agreement, or may defer its decision as to the acceptance or rejection until there has
27
been an opportunity to consider the presentence report.
If the agreement is of the type specified in subdivision
(e)(1)(B), the court shall advise the defendant that if
the court does not accept the recommendation or request
the defendant nevertheless has no right to withdraw his
plea.
(3) Acceptance of a Plea Agreement. If the court accepts
the plea agreement, the court shall inform the defendant
that it will embody in the judgment and sentence the disposition provided for in the plea agreement.
(4) Rejection of a Plea Agreement. If the court rejects
the plea agreement, the court shall, on the record, inform
the parties of this fact, advise the defendant personally
in open court or, on a showing of good cause, in camera,
that the court is not bound by the plea agreement, afford
the defendant the opportunity to then withdraw his plea,
and advise the defendant that if he persists in his
guilty plea or plea of nolo contendere the disposition
of the case may be less favorable to the defendant than
that contemplated by the plea agreement.
(5) Time of Plea Agreement Procedure. Except for good
cause shown, notification to the court of the existence
of a plea agreement shall be given at the arraignment or
at such other time, prior to trial, as may be fixed by
the court.
(6) Xnadmissibility of Pleas, Plea Discussions, and Related
Statements. Except as otherwise provided in this paragraph,
evidence of the following is not, in any civil or criminal
proceeding, admissible against the defendant who made the
plea or was a participant in the plea discussions:
(A) a
plea of guilty which was later withdrawn; (B) a plea of
nolo contendere; (C) any statement made in the course of
any proceedings under this rule regarding either of the
foregoing pleas; or (D) any statement made in the course
of plea discussions with an attorney for the government
which do not result in a plea of guilty or which result
in a plea of guilty later withdrawn.
However, such a statement is admissible (i) in any
proceeding wherein another statement made in the course of
the same plea discussions has been introduced and the
statement ought in fairness be considered contemporaneously
with it, or (ii) in a criminal proceeding for perjury or
false statement if the statement was made by the defendant
under oath, on the record, and in the presence of counsel.
(f) Determining Accuracy of Plea. Notwithstanding the
acceptance of a plea of guilty, the court should not
enter a judgment upon such plea without making such
inquiry as shall satisfy it that there is a factual basis
for the plea.
PiWflCt-
28
(g) Record of Proceedings. A verbatim record of the proceedings at which the defendant enters a plea should be
made and, if there is a plea of guilty or nolo contendere,
the record shall include, without limitation, the court's
advice to the defendant, the inquiry into the voluntariness
of the plea including any plea agreement, and the inquiry
into the accuracy of a guilty plea.93
Subdivision (e) of Rule 11 is the provision which sets
out the plea agreement procedure.
Rule 11 was amended in 1974
to add section (e) as federal courts were directed to acknowledge plea bargaining and to regulate the procedure.
The
Advisory Committee in its note for 1974 concerning this change
stated:
"Subdivision (e) provides a plea agreement procedure
designed to give recognition to the propriety of plea discussion
to bring the existence of plea agreement out into the open in
court; and to provide methods for court acceptance or rejection
of a plea agreement." 94
The committee supported the need for
legalized plea bargaining by quoting the ABA Standards Relating
to Pleas of Guilty
95
statistic that almost 95 percent of all
criminal cases result in a guilty plea. 96
"A substantial
97
number of these are the result of plea discussions."
Relying
on the Santobello and Brady decisions the Advisory Committee
commented:
Administratively, the criminal justice system has come
to depend upon pleas of guilty and, hence, upon plea
discussions. But expediency is not the basis for recognizing the propriety of a plea agreement practice. Properly implemented a plea agreement procedure is consistent
with both effective and just administration of the criminal
law . . . Where the defendant by his plea aids in insuring
prompt and certain application of correctional measures,
the proper ends of the criminal justice system are
furthered because swift and certain punishment serves the
ends of both general deterrence and the rehabilitation
of the individual defendant. Where the defendant has
acknowledged his guilt and shown a willingness to assume
29
responsibility for his conduct, it has been thought
proper to recognize this in sentencing.
The Advisory Committee also restated some of the more
common justifications offered for plea bargaining, such as:
(1) giving the trial judge discretion for sentencing; (2) avoiding the expense and trauma of a public trial; and (3) contributing to the successful prosecution of other more serious
99
offenders.
The committee commented on the desirability of
disclosing plea bargains in open court, as opposed to the
previous practice of the "ritual of denial" in which the parties
claimed that no bargain had in fact been made."*"^
The members
expressed the opinion that the older secret proceedings gave
rise to substantial possibilities of unfairness due to the
lack of any real judicial review.
Subdivision (e)(1) specifies that the "attorney for the
government and the attorney for the defendant or the defendant
when acting pro se may" participate in the negotiations. 102
The committee explained that
the inclusion of "the defendant when acting pro se" is
intended to reflect the fact that there are situations
in which a defendant insists upon representing himself.
It may be desirable that an attorney for the government
not enter plea discussions with a defendant personally.
If necessary, counsel can be appointed for purposes of
plea discussions.103
The committee cited a federal district court case, Anderson v.
104
North Carolina
in which the court held that plea negotiations
in the absence of defense counsel may be unconstitutional.
In summation of this point the Advisory Committee noted:
Subdivision (d) makes it mandatory that the court inquire
of the defendant whether his plea is the result of plea
30
discussions between him and the attorney for the
government. This is intended to enable the court to
reject an agreement reached by an unrepresented defendant unless the court is satisfied that acceptance of
the agreement adequately protects the rights of the
defendant and the interests of justice. Apparently,
it is the practice of most prosecuting attorneys to
enter plea discussions only with defendant's counsel.
Discussions without benefit of counsel increase the
likelihood that such discussions may be unfair.106
The Advisory Committee has expressed the position that
subdivision (e)(1) was promulgated to demonstrate the four
possible plea bargaining results.
First the charge may be reduced to a lesser or related
offense. Second, the attorney for the government may
promise to move for a dismissal of other charges. Third,
the attorney for the government may agree to recommend
or not oppose the imposition of a particular sentence.
Fourth, the attorney for the government and the defense
may agree that a given^sentence is an appropriate disposition of the case.
Subdivision (e)(1) also makes the very important and controversial statement that the court is prohibited from participating in plea discussion.
The committee believes there
are several valid reasons for a judge to refrain from participating in plea discussions.
The principle reason for the
exclusion of the trial judge revolves around the defendant's
fear that he might not receive a fair trial if he rejects a
bargain suggested by the same judge who would preside if the
108
case went to trial.
As the committee noted:
"The risk
of not going along with the disposition apparently desired by
the judge might induce the defendant to plead guilty, even if
innocent.
Such involvement makes it difficult for 109
a judge to
objectively assess the voluntariness of the plea."
To
reiterate the point, the committee cited a federal district
31
court case, United States ex rel. Elksnis v. Gilligan^^ that
supported the position of excluding the judge.
The court said:
The unequal positions of the judge and the accused, one
with the power to commit to prison and the other deeply
concerned to avoid prison, at once raise a question of
fundamental fairness. When a judge becomes a participant in plea bargaining he brings to bear the full force
and majesty of his office. His awesome power to impose
a substantially longer or even maximum sentence in
excess of that proposed is present whether referred to
or not. A defendant needs no reminder that if he rejects
the proposal, stands upon his right to trial and is convicted, he faces a significantly longer sentence.m
Subdivision (e)(2) is a provision that mandates that the
plea agreement must be disclosed in open court.
The committee
112
cited a California state court case, People v. West
provided four methods of accomplishing disclosure.
stated:
which
The court
The basis of the bargain should be disclosed to the court
and incorporated in the record . . . without limiting that
court to those we set forth, we note four possible methods
of incorporation: (1) the bargain could be stated orally
and recorded by the court reporter, whose notes then must
be preserved or transcribed; (2) the bargain could be
set forth by the clerk in the minutes of the court;
(3) the parties could file a written stipulation stating
the terms of the bargain; (4) finally, counsel or the
court itself may find it useful to prepare and utilize
forms for the recordation of plea bargains.H3
The court has the option of accepting or rejecting a disclosed
plea agreement or waiting to make that decision until it has
reviewed the presentence report.
The committee believes that
it may be proper in many instances for the judge to defer his
114
decision until he has examined the presentence report.
Subdivision (e)(2) was amended in 1979 because the previous
language led to uncertainty and confusion.
Committee's Note for 1979 explained:
The Advisory
"The amendment to rule
32
11(e)(2) is intended to clarify the circumstances in which
the court may accept or reject a plea agreement, with the
115
consequences specified in subdivision (e)(3) and (4)."
To understand this analysis it is important to keep the distinction between plea agreements in 11 (e)(1) in mind.
gives three categories of plea agreements, A, B, and C.
11 (e)(1)
In
each the attorney for the government might:
(A) move for dismissal of other charges; or (B) make a
recommendation, or agree not to oppose the defendant's
request, for a particular sentence, with the understanding that such recommendation or request shall not
be binding upon the court; or (C) agree that a specific
sentence is the appropriate disposition of the case.H-6
With this distinction in mind it is time to turn to the Advisory
Committee's analysis in 1979.
The committee noted that a "(B)
type of plea agreement is clearly of a different order than
the other two, for an agreement to recommend or not to oppose is
117
discharged when the prosecutor performs as he agreed to do."
However, the committee explained that an (A) or (C) agreement
differed as it is critical that the defendant receive the contemplated charge dismissal or agreed to sentence.
The committee
states:
Consequently, there must ultimately be an acceptance or
rejection by the court of a type (A) or (C) agreement so
that it may be determined whether the defendant shall
receive the bargained-for concessions or shall instead be
afforded an opportunity to withdraw his plea. But this
is not so as to a type (B) agreement; there is no
"disposition provided for" in such a plea agreement so
as to make the acceptance provisions of subdivision (e)
(3) applicable, nor is there a need for rejection with
opportunity for withdrawal under subdivision (e)(4) in
light of the fact that the defendant knew the nonbinding
character of the recommendation or request.
33
Michele Hermann in her practice commentary on F.R.C.P. 11
explains:
"Under an 11(e)(1)(B) agreement the recommendation
or request is not binding on the court.
The court's imposition
of a longer sentence than that recommended does not constitute
a rejection and does not entitle the defendant to withdraw his
119
guilty plea."
A very important part of this procedure, if
the defendant is operating under a type (B) agreement, is for
him to be aware that the bargain contains only a 120
recommendation
or a request which is not binding upon the court.
The
Advisory Committee maintains that the last sentence of amended
subdivision (e)(2) will establish that indeed the defendant is
aware of the possible consequences of
a (B) agreement, and
121
that his awareness is on the record.
This provision in
(e)(2) in essence says that if the plea agreement is a (B)
type, the court shall personally advise the defendant that if
it doesn't accept the recommendation or request
122 the defendant
still will not be able to withdraw his plea.
The Advisory Committee in 1974 expressed the fact that
the federal rule does not attempt to define when the court
should accept or reject a plea agreement.
Instead, this deter-
mination is left up to each trial judge's individual discretion.
However, subdivision (e)(3) requires, if the court does accept
the plea bargain, "that it inform the defendant that it will
embody in the judgment and sentence the disposition provided
in the plea agreement, or 125
one more favorable to the defendant."^"
In United States v. Runck
the 8th Circuit Court of Appeals
in 1979 held that if a court does accept a plea agreement, the
34
presiding judge would thereafter be severely limited in any
1
attempt to alter the terms of the bargain.
As the committee
emphasized, subsection (e)(3) has the advantage of immediately
127
informing the accused that his bargain will be upheld.
In her practice commentary regarding F.R.C.P. 11, Michele
Hermann describes the effect of subsection (e)(4):
Subsection (e)(4) requires the court to inform the
defendant if the plea agreement is rejected, and allow
the plea to be withdrawn, warning the defendant that if
he or she persists in the plea the sentence may be more
severe than that bargained for. This provision permits
judges who are not willing to approve sentence bargaining
to indicate that they are not bound by the agreement,
that the sentence may be either more or less than that
bargained for, and that the defendant may either withdraw
the plea or face an unknown sentence.
The Advisory Committee in 1974 commented that the purpose of
subdivision (e)(5) was to "make it mandatory, that, except for
good cause shown, the court be notified of the existence of a
plea agreement at the arraignment or at another time prior to
129
trial fixed by the court."
Fixing the time at arraignment,
the committee suggested, would provide reasonable time for the
defendant to discuss the case with his attorney and
130 for the
defense attorney to consult with the prosecution.
Obviously,
this subsection is administrative in nature, by providing a
cut-off date whereupon the bargain must be disclosed to avoid
congesting the federal court docket.
In 1980 Rule 11(e)(6)
was amended.
The Advisory Committee
said the "major objective of the amendment to Rule 11(e)(6)
is to describe more precisely, consistent with the original
purpose of the provision, what evidence relating to pleas or
0C246
35
plea discussions is inadmissible." 131
Subdivision (e)(6) was
based on Federal Rules of Evidence 410 which in part provides
that:
evidence of a plea of guilty, later withdrawn, or a plea
of nolo contendere, or of an offer to plead guilty or
nolo contendere to the crime charged or any other crime,
or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil or
criminal action, case, or proceeding against the person
who made the plea or offer.132
The Advisory Committee explained that the intent behind subdivision (e)(6) was to encourage plea bargaining by open communication without the fear of subsequent prosecutions for statements
133
uttered in such discussions.
history:
The committee cited legislative
"As noted in H.R. Rep. No. 94-247, 94th Cong., 1st
Sess. 7 (1975), 'the purpose of subdivision (e)(6) is not to
discourage defendant's from 13
being
completely candid and open
A
during plea negotiations.'"
With that thought in mind
11(e)(6) was enacted, but with an additional proviso that would
allow the use of perjurious statements in a subsequent prosecution, "and with the qualification that the inadmissible statements must also be 'relevant' to the inadmissible pleas or
offers." 135 However, the Rule had some construction problems:
While this history shows that the purpose of Fed. R. Ev
410 and Fed. R. Crim. P. 11(e)(6) is to permit the
unrestrained candor which produces effective plea discussions between the "attorney for the government and
the attorney for the defendant or the defendant when
acting pro se," given visibility and sanction in
Rule 11(e), a literal reading of the language of these
two rules could reasonably lead to the conclusion that
a broader rule of inadmissibility obtains. That is,
because "statements" are generally inadmissible if
"made in connection with, and relevant to" an offer to
plead guilty, "it might be thought that an otherwise
voluntary admission to law enforcement officials is
36
rendered inadmissible merely because it was made in the
hope of obtaining leniency by a plea.136
The Advisory Committee noted that some lower court decisions
had indeed interpreted 11(e)(6) in that manner.
For example,
137
in United States v. Brook
the 6th Circuit Court of Appeals
held inadmissible a statement from a defendant to a postal
inspector wherein the former offered to plead guilty if he
would be guaranteed a minimum sentence of two years. 1 ^fi The
committee asserted that the amendment to Rule 11(e)(6):
makes inadmissible statements "made in the course of any
proceeding under this rule" regarding either a plea of
guilty later withdrawn or a plea of nolo contendere, and
also statements "made in the course of plea discussions
with an attorney for the government which do not result
in a plea of guilty or which result in a plea of guilty
later withdrawn."139
The rule extends beyond statements made by the defendant individually, as it also encompasses statements uttered by defendant's attorney relating to incriminating admissions made by
the defendant.^^
The point which the Advisory Committee
was attempting to drive home was simply this:
(The amendment) thus fully protects the plea discussion
process authorized by rule 11 without attempting to deal
with confrontations between suspects and law enforcement
agents, which involve problems of quite different dimensions. This change, it must be emphasized, does not
compel the conclusion that statements made to law enforcement agents, especially when the agents purport to have
authority to bargain are inevitably admissible. Rather,
the point is that such cases are not covered by the per
se rule of 11(e)(6) and thus must be resolved by that
body of law dealing with police investigations.141
Back in 1974 the Advisory Committee reiterated that subdivision (f) continued the long-standing practice whereby the
trial judge should not enter a guilty plea without first making
0C246
37
"an inquiry as will satisfy it that there is a factual basis
for the plea."
The federal court system requires the judge
to develop this factual basis on the record itself.
Commonly,
the trial judge will ask the defendant to explain in his own
"I/O
words what he did that led to criminal charges against him.
The Advisory Committee again cited the ABA Standards Relating
to Pleas of Guilty § 1.6 (Approved Draft, 1968) for support:
"an inquiry might be made of the defendant, of the attorneys
for the government and the defense, of the presentence report
when one is available,
or by whatever means is appropriate in
144
a specific case.
On a practical note, the committee advises
federal courts, when inquiry will be made of the defendant himself, to place him under oath."^^^
Finally the Advisory Committee spoke of the self-explanatory
subsection (g) whereby a verbatim record is to be kept of the
proceedings.
The committee advises, in case of post-conviction
attack, for the record to include:
"without limitation, the
court's advice to the defendant, the inquiry into the voluntariness of the plea and the plea agreement, and the inquiry into
146
the accuracy of the plea."
As a practice pointer for defense counsel representing
defendants in federal criminal cases, Michele Hermann suggests
following this format:
I.
The Case
A. Review facts of case from government and
defendant's point of view.
B. Discuss possible defenses and evaluate their
strengths and weaknesses.
C. Consider possible motions (e.g., to suppress
confessions, tangible evidence, etc.) and their
strengths and weaknesses.
38
D.
II.
III.
Be certain defendant understands that plea of
guilty will waive all defenses and motions.
The Defendant
A. Review defendant's age, education, medical,
psychiatric, alcohol and drug history.
B. Determine whether he or she is competent to
comprehend and act in the case.
The
A.
B.
C.
D.
E.
F.
G.
H.
Plea-Waivers to be Explained
Trial by jury of twelve peers.
Unanimous verdict.
Presumption of Innocence.
Burden of proof on government beyond a reasonable
doubt.
Right to confront and cross-examine adverse
witnesses.
Right to subpoena own witnesses.
Right to testify.
Right to remain silent without adverse comment.
IV.
The Plea-Consequences to be Explained
A. Plea of guilty gives up the above rights and is
the same as being convicted after a trial.
B. Plea of guilty waives the Fifth Amendment privilege against self-incrimination.
C. Plea of guilty could lead to prison sentence
X years (maximum) plus X dollars fine (maximum).
D. Crime to be pled carries X mandatory minimum
sentence.
E. Conviction may result in parole, special parole
and probation consequences.
F. Conviction may result in forfeiture of civil
rights, deportation, other consequences.
V.
Voluntariness
A. Any threats against defendant or family to induce
plea.
B. Any promises to induce plea.
C. Have defendant explain his or her understanding
about any agreements reached with government.
D. Ask defendant why he or she is pleading guilty.
VI.
Other
A. Inquire if defendant has any questions.
B. Review legal representation of defendant, including
time spent and decisions made and determine
if defendant is satisfied.147
In the September 1, 1976 issue of the Practical Lawyer,
the journal presented a laundry checklist of questions to be
)289
M
39
asked by the court to a defendant who pleads guilty.
Highlights
of the article follow:
General Statement - Before accepting your plea of guilty
(nolo contendere) I must ask you certain questions. If
you do not understand any particular question, please
tell me, as it is important that you thoroughly understand
each question.
Questions to Defendant
1. Have you discussed with your attorney the nature of
the charge(s) to which you have entered a plea of
guilty (nolo contendere) and do you realize what the
(each) charge is?
2. The maximum possible penalty provided by law for this
offense is imprisonment for a period not exceeding
. . . (years or months) and a fine not exceeding
$. . ., either or both. Do you understand the
seriousness of the penalty provided by law?
3. You already have an attorney (if applicable). Have you
had full opportunity to discuss your case with him,
including the plea of guilty that you have entered?
4. Do you understand that you have a right to plead not
guilty, or if you have previously entered a plea of
not guilty, to persist in that plea?
5. Do you realize that, if you plead not guilty, you have
a right to a trial by jury, and at that trial you have
a right to the assistance of counsel and to confront
and cross-examine witnesses and that you cannot be
required to testify against yourself?
6. If the court accepts your plea of guilty (nolo
contendere), there will be no further trial of any
kind. In other words, do you understand that your
entry of a plea of guilty (nolo contendere) is a
waiver of your right to a jury trial?
7. If you persist in your plea of guilty (nolo contendere),
the court may ask you questions about the offense and,
if you answer these questions under oath in the presence of counsel, your answers may later be used
against you in a prosecution for perjury or false
statement. Do you understand that the court may
question you along these lines?
8. Are you entering this plea of guilty (nolo contendere)
freely and voluntarily?
9. Is your plea the result of any force or threat on the
part of anyone?
10. (a) (If the court has been advised that a plea agreement has been entered into) I understand that you and
your attorney have had some discussion with the attorney for the Government with a view toward reaching an
agreement as to the disposition of this case. I now
ask your attorney to detail the agreed recommendation
0C246
40
10.
11.
11.
(or disposition). (Defense attorney responds).
(1) I would like for the attorney for the Government
to state whether this is the entire agreement, and,
if he does not concur, I want him to state his understanding of the agreement. (Attorney for Government
responds).
(2) (To defendant) You have heard the attorneys state
the details of the plea agreement. Is it absolutely
correct? Has anyone, wholly apart from the plea agreement, made any promise to you that induced you to
enter this plea of guilty (nolo contendere)?
(3) (To defendant, if plea agreement involves only a
recommendation or an agreement not to oppose defendant's request for a particular sentence) You understand, of course, that any recommendation by the
prosecution, or any agreement not to oppose your
attorney's request, is not binding upon the court, and
in the event the court sees fit not to grant your
attorney's request (not to accept the government's
recommendation), and if you then still persist in your
plea of guilty (nolo contendere), you could receive a
sentence which is less favorable to you than what was
set forth in the plea agreement?
(4) (To defendant, if plea agreement involves the
dismissal of one or more charges and/or an agreement
that a specific sentence is the appropriate disposition
of the case) You understand, of course, that the court
is not required to act favorably on the agreement;
that the court may see fit to reject it. If the court
decides to reject the agreement, you will be so notified
in open court, at which time you will have an opportunity to withdraw your plea of guilty (nolo contendere)
and you may then enter a plea of not guilty. However,
if the agreement is rejected by the court and you still
persist in your plea of guilty (nolo contendere), you
are told that the disposition of this case may be less
favorable to you than what was contained in the plea
agreement. Do you understand?
(b) (If the court has received no information as to the
existence of a plea agreement or any discussion of
same) I am required to ask you whether your willingness
to plead guilty (nolo contendere) results from any
prior discussions between you (and your attorney, if
represented by counsel), on the one hand, and the
attorney for the Government, on the other hand. Do
you know of any such discussions? (If the answer is
in the affirmative, follow procedure set forth in
10(a)(2, 3, and 4).
(a) The court will hear the factual basis for the plea
at this time.
(b) The court will defer hearing the factual basis
for the plea until a date to be fixed for further
proceedings.
41
Optional Questions
A. Your correct name is . . . (as stated in the indictment
or information)?
B. What is your present age?
C. What is the extent of your education and schooling?
D. Are you now, or have you recently been, under the
care of a doctor or psychiatrist, or otherwise
hospitalized for narcotic addiction or any physical
or mental illness?
E. Have you drunk anything of an alcoholic nature within
the past 12 hours?
F. Are you in fact guilty of the crime (or crimes) to which
you have entered a guilty plea? (This question should
not be asked of a defendant who enters a nolo contendere,
as it destroys the effect of that plea.)
G. The court need not accept your plea of guilty unless
the court is satisfied that you are guilty and that
you fully understand your rights. Do you understand
your rights?
H. Are you able to read, write, speak, and understand
the English language?148
The federal court system obviously then, is a plea bargaining system.
A federal rule of procedure expressly authorizes
plea negotiations, and the actual court structure revolves
around the bargained for plea.
Many jurisdictions follow the
federal court system in virtually every aspect.
However, a
few jurisdictions have outlawed the practice of plea bargaining.
The state of Alaska, prior to 1974, was a jurisdiction which
lived by the bargained for plea.
However, in 1974 some major
changes began to take place as Alaska quickly eliminated the
practice of negotiated pleas in her courts.
B.
Alaska
In December 1974, Avrum Gross was appointed Attorney
General for the state of Alaska.
Shortly after he took office
he had decided on a new policy which would be a maverick deci149
sion for criminal law: the elimination of plea bargaining.
42
In his first memo, the new attorney general had written:
"District attorneys and assistant District Attorneys will
refrain from engaging in plea negotiations with defendants
designed to arrive at an agreement for entry of a plea of guilty
150
in return for a particular sentence. • i
The Attorney General
gave several reasons for his radical new policy:
The most important purpose of the policy, he said, was
to return the "sentencing function to the judges" and to
eliminate former practice under which, he said, they
acted as "rubber stamps" for sentences negotiated in
advance by the attorneys. A second, equally important
reason was to "clean up . . . the least just aspect of
the criminal justice system." Prosecutors, he suggested,
sometimes arrived at negotiated settlements for "illegimate" reasons--for instance, the desire not to work.
Defense attorneys, judges, and police, he said, also
tended to use plea bargaining as a means of avoiding
the necessity for trial preparations, expediting the
court calendar, or masking inadequate investigation:
"You cover up all the deficiencies in the system by the
device of plea bargaining."151
The Alaska Judicial Council received a grant from the
National Institute of Law Enforcement and Criminal Justice
to study what effect the elimination of negotiated pleas would
152
have on the state's criminal justice system.
concluded in 1978.
The study was
Two of the members of the Judicial Council,
Michael L. Rubenstein and Teresa J. White, expressed their
surprise at the difference between their expectations and the
actual end results of the prohibition:
1.
2.
3.
4.
Court processes did not bog down; they accelerated.
Defendants continued to plead guilty at about the
same rates as before.
Although the trial rate increased substantially, the
absolute number of trials remained relatively small.
The conviction and sentencing of persons charged with
serious crimes of violence such as murder, rape,
robbery, and felonius assault was completely unaffected
by the change in policy, although there were important
43
sentencing impacts in charges involving drugs, forgeries, bad checks and embezzlements, and less serious
property offenses.
5. Conviction rates did not change signficantly overall,
although prosecutors won a larger proportion of those
cases that actually went to trial.
6. Local styles of prosecuting and judging were of overriding importance. Anchorage, Fairbanks, and Juneau
differed so greatly that we concluded that the city
of prosecution was more strongly associated with
variation in the case outcomes we studied than was
the policy against plea bargaining.
We found that the institution of plea bargaining had been
effectively curtailed in Alaska and that it had not been
replaced by implicit or covert forms of the same practice.
One of the areas affected by the policy change was that of
screening out cases for prosecution.
Prior to the elimination
of plea bargaining, most cases were disposed through the process
1 C/
of plea negotiations.
However, the attorney general's new
intake policy created a "trial-readiness standard" for accepting
charges brought by the police.''"55
"First, by accepting only
cases in which the evidence was strong, prosecutors would have
less work preparing for trial (an important consideration since
the attorney general expected a substantial increase in trials.""'"5^
The second part of the new intake test was the realization that
if good charges which could hold up in court were initially
placed on defendants, there would be no need to later reduce
them."'"57
In other words, prosecutors began to charge a defen-
dant for the crime(s) in which the evidence would prove he
committed, instead of overcharging, to provide plea bargaining
chips to deal with his defense attorney.
The plea bargaining
prohibition, of course, covered both sentence bargaining and
charge bargaining.
The elimination of sentence bargaining was
the most dramatic change for the new system:
44
For most defendants and their attorneys, obtaining the
prosecutor's agreement as to what sentence should be
recommended to the judge was the most crucial aspect
of the case. The sudden withdrawal of prosecutors from
the sentencing process left a vacuum that was never filled
to the satisfaction of many judges or attorneys. The
attorney general had not intended this r e s u l t . 1 5 8
Traditionally, the prosecutor held wide discretion in charging
a defendant with a crime.
It was for this reason that charge
bargaining was much more difficult to control than sentence
bargaining.
However, the attorney general was adamant in his
intentions:
"Charges should be dismissed or decreased only
under unusual circumstances, only then when justified by the
facts in a case, and not as a quid pro quo for the entry of a
plea of guilty." 159
Alaska began to institute a "trial system" instead of a
bargain system.
Prosecutors would use their resources to pre-
pare for litigation instead of discussing the case with defense
attorneys.
160
As an assistant district attorney stated:
We do have what you might call a trial system, although
a political scientist who simply counted the numbers of
guilty pleas and trials might not sense the fundamental
nature of the change that's occurred. Paradoxically,
thinking in terms of a trial system may lead to a guilty
plea when the defense attorney realizes that he does
not have a triable case.161
The council's study discovered that most defense attorneys
believed the prohibition severely limited their ability to help
162
their clients.
Most criminal cases that reached the
superior court stage were said to leave few openings for
successful defense tactics.
Stripped of their most powerful
weapon, the ability to threaten scarce prosecutorial resources
by demanding a trial, most defense attorneys could only hope
0C246
45
for a procedural breakthrough such as a successful motion to
suppress or the like.
Defense counsel also had to work much
harder even though the end result was still the same:
a
guilty plea:
When all avenues had been exhausted, however, defense
attorneys more often than not entered the courtroom
prepared for a plea of guilty at an opening sentencing
with no assurances of the outcome.
"Only about 5 to 7 percent of my cases are actually
plea-bargained" (Assistant public defender).
"The rule is that in 65 percent of your cases there's
a discussion . . . In a large percentage of your cases,
you've done absolutely nothing for your client" (Assistant
public defender).163
There were still a few exceptional circumstances in which
plea bargaining in Alaska continued to exist.
The exceptions
were rare (about 30 cases a year) and they had to
be approved
"I £ A
by the attorney general or the chief prosecutor:
The largest number of exceptions were granted in charges
of lewd and lascivious acts against a child, charges
that the attorney general had suggested were particularly
appropriate for specific sentence agreements to encourage
prompt pleas of guilty in order to save the victim and
family from psychological injury or embarrassment occasioned by public testimony and cross-examination. A few
sentence-bargains were also approved for defendants who
had agreed to testify against other defendants . . .
No one, however, claimed that exceptions were granted
very frequently.
Probably the greatest surprise to everyone was the fact
that the expected large increase in trials never occurred.
166
Indeed the trial rate went up, but the increase was manageable.
For example:
"The Anchorage trial rate rose from 2.9 percent
of all cases filed to 6.1 percent.
In Fairbanks the trial rate
had been considerably high to begin with--14.1 percent of all
cases filed--and it increased to 17.2 percent."''"67
U
ij
J
§
The judicial
46
council believed that most defendants waived a trial and still
pleaded guilty "not because they get good deals but because it
does not appear that going to trial--with a very probability
168
of conviction--will do any good."
Finally, all court officers agreed that the attorney general
had been successful 169
in returning the sentencing function solely
to the trial judge.
The council offered some statistics
to prove this point:
First, the number of cases in which a specific recommendation about the sentence was made by the prosecutor dropped
significantly. Second, the chance that any convicted defendant would go to jail for thirty days or more increased.
Third, sentences for several groups of defendants increased
significantly in length . . . drug felony sentences went
up 233 percent; . . . white-collar offenses received
sentences 117 percent longer; . . . and theft and burglary
offenses . . . received sentences about 53 percent longer.
Finally, for violent crimes such as murder, rape, robbery,
and felonious assault, there was no change in sentencing
. . . suggesting that most defendants convicted of violent
crimes received relatively severe treatment whether or
not negotiation took place.170
Prosecutors not only abstained entirely from making recommendations concerning sentences, but apparently were relieved to
shift the entire burden to the trial judge. 171
In fact the
last comment basically concludes the findings of the Alaska
Judicial Council.
They found that "the prohibition on plea
bargaining shifted large blocks of responsibility from one
172
component of the system to the other."
As Rubenstein
commented:
Where Alaska formerly had a participatory sentencing
process involving much communication between prosecution
and defense, frequently followed by in-chambers discussion
with the judge, it now has a system in which the prosecutor stands clear while the judge reviews the presentence
report and picks a number.
002.13
47
Of course, by taking away his offensive weapons, the defense
attorney now also plays a much smaller role in the administration of justice.
The council concluded the study by stating:
The attorney general's experiment was successful in that
he substantially changed a deeply ingrained pattern and
practice. Further he showed this could be done without
massive "planning" efforts or infusion of federal funds.
The criminal justice system not only survived but it
actually became more efficient. Nevertheless, in our
opinion, the shift of responsibility for sentencing from
lawyers to judges did nothing to improve the quality of
justice in the state of Alaska.174
This paper has shown the responsibility of court officers
in Alaska, a jurisdiction which has eliminated the practice of
plea bargaining.
What are the roles and functions of the
defense attorney, prosecutor and trial judge in jurisdictions
where plea bargaining is the name of the game?
III.
A.
THE STARTING LINE-UP
The Defense Attorney
The leading authority for the defense attorney's role in
plea bargaining is Albert Alschuler, who at the time of his
work was a law professor at the University of Texas.
Alschuler's
research does not follow the usual path, as he "interviewed"
attorneys involved in the plea bargaining process in ten major
urban jurisdictions.
However, these interviews encompassed
the individual lawyer's own stories, gossip, and innuendos.
In short, most of Alschuler's research is based upon hearsay
and is at times suspect.
Most commentators agree that his
conclusions are, in fact, legitimate, even if informal and
nonscientific.
48
Alschuler begins his work on defense attorneys by discussing the private retained attorney.
According to Alschuler
every city has a number of professional writ-runners and
pleaders--lawyers who virtually never try a case:
In Manhattan, a group of lawyers whose offices are
located in close proximity to the criminal courthouse
are sometimes referred to as "the Baxter Street irregulars." The New York Times once reported, "The philosophy of these lawyers . . . is simple: "Whatever the
defendant can scrape up, that's the fee, and from then
on all the lawyer is interested in is disposition of the
case as fast as possible . . . Judge Harold Rothwax
of the New York City criminal court once told a reporter:
Private lawyers are usually even worse. Many of them
hang around the criminal courts and pick up clients who
are bewildered and desperate. These lawyers charge anywhere from a hundred dollars to five hundred dollars a
year--for doing next to nothing and doing it very badly.
I know some of them who have practiced in the criminal
courts for thirty years and have never gone to trial.
They don't even read the papers in the cases they
handle.175
Defense attorney Paul T. Smith, when asked about the number of
these cop-out attorneys responded:
"The practice of criminal
176
law is just a little above shop-lifting in this city."
Not only, according to Alschuler, do these "pleaders" offer
their clients misleading advice on whether to plead guilty, but
they also receive longer sentences for their clients. 177
Foreman of Houston added:
Percy
"All one ever gets in the law is what
one can take from the other side.
A prosecutor has little
incentive to offer concessions when he knows
that a guilty
178
plea will be forthcoming in any event."
Alschuler comments:
"Not only an attorney's willingness to take his cases to trial,
but his ability as a trial advocate and his willingness to
appeal unfavorable verdicts can apparently influence the
49
concessions that his clients receive." 131
Alschuler notes that
cop-out attorneys are able to procure clients by way of
(1) bail bondsmen, (2) runners in jails, (3) jail trustees
180
and (4) employed ex-clients as runners.
After "catching"
their clients the pleader must induce them to plead guilty.
This is accomplished through:
(1) misrepresentation of
attorneys "connections" with judge and prosecutor; (2) overstating the evidence of the prosecutor's case; (3) pressuring
family members to induce defendant to plead guilty; and
(4) "puffing"--outright lying by giving the defendant misinformation. 181 Percy Foreman comments regarding the cop-out
attorney:
"They are worse than hijackers.
182
They steal not only
money but life and liberty as well."
Of course, the cop-out attorney is the exception to the
general rule concerning the qualifications and ethics of
defense attorneys.
However, it is no secret that it is very
difficult to strike it rich by practicing criminal law.
Alschuler believes that, "the guilty-plea system subjects even
honest and conscientious lawyers to temptations that have
183 no
place in a rational system of administering justice."
Financial pressures on private defense attorneys are tremendous.
Obviously, criminal lawyers prefer to be paid in 184
advance of
the ultimate disposition of their client's case.
attorney will, according to Alschuler either set up:
The
(1) pay
as you go financing in which the client pays for each step in
the process as is needed, or (2) the single fee-set before
the lawyer knows whether the defendant will plead guilty or
50
go to trial. 131
Needless to mention, if a single fee is the
method selected, after the attorney collects his fee, his
interest may lie in "disposing of the case as quickly as
186
possible."
The usual rationalization offered for the
attorney's windfall due to a guilty plea is:
"Sure, I make
a lot of money on a plea, but if the case went to trial, the
defendant's sentence would probably be twice
187 as long.
How
could I justify charging more for that?"
Alschuler notes that the financial problems are even more
severe when the client has limited funds.
He asked a number of
defense attorneys how large a fee must be before even the
simplest trial would be profitable.
"Responses varied greatly,
1
but more than half mentioned figures of $1,000 or more."
Defense attorney Harriss B. Steinberg of Manhattan expands on
this principle:
The defense counsel has to cut his cloth to the pattern
of the fee that can be paid. It is just not feasible to
put in $10,000 worth of time and work in cases where the
accused has $500 to spend. This sounds cold-blooded and
heartless but it is just a fact. No matter how much free
work one wishes to do--no matter how much work at halfpay one wishes to do (and we do a great deal)--nevertheless, the sad fact is that lawyers must make a living
for their families and themselves.
Public defenders, in contrast to private defense attorneys,
are salaried attorneys whose income does not depend on the way
190
his client's case is resolved.
"Nevertheless, in most
jurisdictions, public defenders enter guilty pleas for their
clients as frequently as
191private attorneys, and in some jurisdictions, more often."
represent the indigent.
The duty of a public defender is to
A public defender is at a distinct
51
disadvantage because his client does not hire him. 131
"As an
attorney appointed by the court, he is not an individual in
whom his clients have chosen to place their personal confidence
193
but simply represents the luck of the draw."
The majority
of research indicates that on the whole it is impossible to
tell whether a private attorney or a public defender
194 receives
more beneficial plea bargains for their clients.
Alschuler points out that "the most common criticism of
public defender systems is 195
that defenders sacrifice some clients
for the benefit of others."
A particularly abhorrent prac-
tice of favoritism is the trade out, "in which a defender agrees
to a guilty plea or a severe sentence for one client in exchange
196
for a dismissal of charges or a lenient sentence for another."
Trade outs constitute a flagrant violation of the defense
attorney's professional ethics as each and every 197
defendant is
entitled to unreserved loyalty from his counsel.
states:
Alschuler
"When a lawyer seeks a special favor for a particular
client on the basis of his own subjective evaluation, he inserts
himself into the state's administrative criminal justice
machinery and becomes a judge.
Discovery of the prosecutor's case is an important factor
in determining how successful a plea bargain will ultimately
come to be.
Alschuler found that most prosecutors appeared to
be more willing to share
their information with public defenders
199
than private attorneys.
"Officially our files are closed
to everyone," said Philadelphia prosecutor Joseph M. Smith,
"but unofficially we are usually ready to share information
CG2G3
52
with the public defender. it200
Discovery, or the amount of it
that will be shared, apparently may depend upon the kind of
11rapport" which the defense attorney has with the prosecutor. 201
In Alschuler1s words:
. . . defense attorneys sometimes seek to encourage
disclosure by granting reciprocal concessions to the
prosecutors. At least three possible concessions by
defense attorneys merit . . . evaluation—disclosure of
the defense evidence or of confidential information
supplied by a client, refusal to use information supplied
by a prosecutor in a way that will embarrass him at
trial, and the entry of pleas of g u i l t y . 2 0 2
Defense attorneys may want to discover the extent of the state's
case for different reasons.
Most will want to find out the
weaknesses in the prosecutor's evidence in order to provide
their client with a better defense.
However, other attorneys
may want to discover the strength of the state's case in order
to convince their client that an acquittal is hopeless and
203
that the best course of action is to cop a plea.
It is
with the latter type of defender in which a prosecutor2 Q will
want
A
to open his files completely, according to Alschuler.
Public defenders may also have an advantage over retained
attorneys in the area of "trade secrets" or inner knowledge
of how the system really works.
Paul G. Breckenridge, the
Chief Deputy Public Defender in Los Angeles, explains how
knowing these home court rules could affect plea bargaining:
If a lawyer in our office is unable to work out a
satisfactory bargain with a prosecutor, he may nevertheless enter a guilty plea before the judge with
almost certain knowledge of what sentence the judge
will impose. A private attorney with less knowledge of
the judge's sentencing practices might well be afraid
to take this action, and his client will therefore
receive less effective representation than our office
could provide.205
53
Alschuler, in common with most scholars, believes that
delay is a healthy trial tactic for improving the defense's
case.
"With the passage of time, tempers cool, memories fade,
and prosecution witnesses are worn down by repeated court
206
appearances or disappear altogether."
In fact, an empirical
study was made of the Chicago criminal courts by Laura Banfield
and C. David Anderson which "found that the conviction rate
declined from 92 percent in cases that were tried promptly
to
207
48 percent in cases that were substantially delayed."
As
Philadelphia defense attorney Bernard Segal commented:
"The
District Attorney's evidence
2 0 8 never grows stronger as a defense
attorney procrastinates."
Alschuler notes: "As conviction
becomes more difficult, the concessions available in exchange
209
for pleas of guilty almost invariably become greater."
It is the area of delay in which a privately retained defense
attorney enjoys the advantage over the public defender.
For
example, a private attorney can usually secure a continuance
in a given case by claiming a conflict in his court schedule.
But, the public defender usually will try most of 210
his cases
in the same courtroom and cannot use this excuse.
Another
far more important reason for delay which is available only
to private attorneys is the failure of the defendant to pay
his attorney's fees.
for this reason.
Some courts regularly grant a continuance
"In New York a defense attorney can secure
a continuance by informing the court 211
that he has been unable
to locate his witness, 'Mr. Green.'"
Texas courts usually
postpone upon a motion by the retained attorney for the court
54
to invoke rule number one.
Finally, a private attorney who
does not practice in the same courtroom on a continual basis
will be able to discreetly practice the art of judge-shopping
212
for the lenient judge.
A public defender, as mentioned earlier, is at a distinct
disadvantage because his client does not select the defender
to represent him.
Most defendants lack confidence in their
court-appointed attorneys and 213
very likely will resist taking
the public defender's advice.
Alschuler comments:
"...
this resistance is most likely to take the form of insistence
upon a trial despite the attorney's recommendation of a guilty
plea. Public defenders are thus at a disadvantage in the pro- 214
cess that defense attorneys unblushingly call "client control."
The inherent disadvantages of the public defenders position are accentuated by the organization of most urban
defender offices. These offices provide a "zone" rather
than a "man-to-man" defense. Defenders are not assigned
to clients; they are assigned instead to courtrooms.
Each defender then provides representation for all indigent defendants who appear at his "station." A defendant
may thus find himself interviewed by one attorney, represented at his preliminary hearing by another, and represented at his arraignment by still another. Finally-perhaps only on the day set for trial--he may meet the
attorney ultimately responsible for the conduct of his
defense. The defendant is likely to spend no more than
a half hour or so conferring with any one of his representatives; usually, in fact, the period will be less.
The defendant may therefore conclude that his relationship
with the defender office resembles the atmosphere of an
automatic car wash more than that of a traditional
attorney-client relationship.215
Another factor important in plea bargaining is the defense
attorney's caseload.
Alschuler gives some statistics:
"In 1970,
the average caseload per defender in New York City was 922
cases; in Philadelphia, defenders were carrying a caseload of
eo2oS
55
600 to 800 cases a year arid often handled 40 to 50 cases a
216
day."
Alschuler believes that "a public defender's case-
load is at once his greatest burden
and his greatest asset in
217
the plea negotiation process."
The defender's caseload
can actually work an advantage for him in the form of a bargaining leverage.
A very rare example is when the
218 public
defender office implements the "general strike."
A general
strike means that all of the defender's clients will insist on
taking their case to trial thus breaking down the system by
draining scarce resources and creating huge docket backlogs.
The strike will be employed until judges and prosecutors
provide
219
better deals for the defense attorney's clients.
Alschuler
comments that variations on the general strike principle are
more common.
For example, there is a concept
known as the
220
"strike on the craft union principle."
Under this type
strike, the public defender feels that the state is unnecessarily
prosecuting certain offenses such as bingo playing and delivering
harsh sentences.
The defender's office may respond by taking
every bingo playing case to trial until
the state changes its
221
prosecution and sentencing policy.
According to Alschuler,
another variation of the general strike is the "strike on the
industrial union principle.
All defendants engaged in a parti-
cular craft do not refuse to plead guilty; instead, all defendants who come before a particular judge insist upon the right
222
to trial."
This, in turn, puts pressure on the judge to
provide more lenient sentences to end the strike and the backlog
of cases in his court.
li t > -isji % 4
56
Alschuler1s portrait of the defense lawyer is not a
pretty one.
Defense attorneys, regardless of individual merit,
do have an unfortunate poor public image largely due to their
tremendous caseloads and inadequate resources.
They are often
caught in impossible situations where it realistically is not
humanly possible to provide each client with truly effective
representation of counsel.
The temptation to trade-out, or go
on strike, while ethically reprehensible, may at times be the
attorney's only viable alternative.
No court has at this date "explicitly stated that a right
to counsel exists for defendants during plea bargaining negotiations, as opposed to the critical stage when the defendant
223
enters a guilty plea."
However, an Arizona State Law Review
article in 1978 believes that defense attorneys owe a duty to
investigate the facts before allowing a client to plead guilty.
The right to effective counsel when the case goes to
trial encompasses the right to have the defense attorney
conduct a factual investigation. Similarly, the entry
of a guilty plea may require defense counsel to conduct
an independent factual investigation because the accused
must render an important decision which must be made
intelligently and with the effective assistance of
counsel . . .
It is the duty of the lawyer to conduct
a prompt investigation of the circumstances of the case
and to explore all avenues leading to facts relevant
to the merits of the case and the penalty in the event
of conviction. The investigation should always include
efforts to secure information in the possession of the
prosecution and law enforcement authorities. The duty
to investigate exists regardless of the accused's
admissions or statements to the lawyer of facts constituting guilt or the accused's stated desire to plead
guilty.224
On paper it sounds great and few criminal defense lawyers
would argue with its idealistic value.
But try and put it over
a public defender who handles over 50 cases a day.
)289
M
57
B.
The Prosecutor
This paper has covered the prosecutor's role in several
aspects (see Introduction) especially in light of the underlying
reasons to pursue a plea bargain and the Bordenkircher and
Santobello opinions.
It is for this reason that his role will
be only briefly discussed at this point.
225
Prosecutors must act in good faith during plea negotiations.
"They must not participate in any direct or implied threats to
the defendants or counsel for the defendants.
They should pro-
tect the constitutional right of the
defendant to due process.
226
They should not act vindictively."
227
In United States v. Jackson
Court of Appeals held that:
in 1977, the 4th Circuit
"The prosecutor must be careful
to emphasize to the defendant that the court
may not follow
228
the recommendations of the prosecutor."
In Lynch v. Overholser 229 and again in Santobello, the Supreme Court has
stated: "The prosecutor should not even intimate that the
230
defendant has a right to have a guilty plea accepted."
Finkelstein, in his article, A Statistical Analysis of Guilty
Plea Practices in the Federal Courts, in 1975 commented:
A necessary part of the plea bargaining process in that
a prosecutor makes some concession in exchange for a
guilty plea, whether that concession is a reduced charge,
a lesser sentence, or an agreement to recommend a specific
institution. Obviously, only fear of more harsh punishment constitutes the inducement for a guilty p l e a . 2 3 1
Finkelstein is pointing out the dilemma a prosecutor is in.
On the one hand he is not supposed to act vindictively or
intimidate or threaten the accused.
On the other hand his
C02&9
58
main ammunition lies in his knowledge that if the defendant
refuses to accept a plea bargain he will most likely receive
a harsher sentence at trial.
Therefore, "it is difficult for
the prosecution, however well motivated and ethical, to avoid
232
the implication of threats and intimidation.
One other side of prosecutor's working personality should
be mentioned.
Almost universally, the prosecutor's office is
a political one.
The Wictersham Commission made a study of
prosecutors in 1931 which is entirely relevant to today as
well:
The system of prosecutors elected for short terms, with
assistants chosen on the basis of political patronage,
with no assured tenure yet charged with wide undefined
powers, is ideally adapted to misgovernment. It has
happened frequently that the prosecuting attorney withdraws wholly from the courts and devotes himself to the
political side and sensational investigatory functions
of his office, leaving the work of prosecution wholly to
his assistants. The "responsibility to the people" contemplated by the system of frequent elections does not so
much require that the work of the prosecutor be carried
out efficiently as that it be carried out conspicuously.
Between the desire for publicity and the fear of offending
those who control local politics, the temptation is strong
to fall into an ineffective perfunctory routine for
everyday cases with spectacular treatment of c a s e s . 2 3 3
C.
The Trial Judge
Judicial participation in plea bargaining varies greatly
throughout American criminal law jurisdictions.
Judicial
participation:
is an umbrella term that can mean anything from judge's
indirectly and informally indicating what type of
sentence they might impose or a slight encouragement for
defense attorneys and prosecutors to get together and
arrive at a plea settlement; to direct involvement in
plea negotiation sessions or a marked pattern of implicit
bargaining involving the anticipation of a lighter sentence
in exchange for a plea of g u i l t y . 2 3 4
li UiwiSi
s J
59
While the members of the criminal bar disagree between themselves
as to whether trial judges should participate in plea negotiations, all of the main advisory committees and model codes
235
advocate the prohibition of judicial participation.
In
1968 the American Bar Association (ABA) made the suggestion
that the judge should involve himself 236
in a limited supervisory
role instead of a participatory role.
The ABA believed, as
did the Advisory Committee to Rule 11, that if the judge became
directly involved in the actual plea negotiation process he
would soon be playing the role of an advocate
237 and might have
a difficult time in presiding impartially.
In 1973 the
National Advisory Commission on Criminal Justice Standards and
Goals concurred with the ABA's findings, believing that
238 defendants would find it hard to resist judicial pressure.
This paper has previously covered in detail a comprehensive
prohibition directed at the trial judge--Federal Rule of
Criminal Procedure 11, particularly Rule 11(e).
The rule was
amended in 1974, as previously noted, to prohibit the trial
court's participation in plea bargaining negotiations.
The
239
2nd Circuit Court of Appeals in U. S. v. Wer/Cer
in 1976 was
a test case for the recently effective rule.
The court held that judges may not inform defendants of
what sentence they would impose if the defendants were
to plead guilty. The court noted that "its purpose and
meaning are 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 plea agreement. "240
The state courts, however, are a different matter.
"Of
the fifty states and the District of Columbia, twenty-eight
(v>M*JWy. jL
60
have criminal procedure rules or statutes paralleling parts of
Federal Rule 11.
Only eight states have adapted a specific
prohibition on judicial participation such as those found in
9/1
Federal Rule 11."
The ABA study also found that state judges
themselves, as can be expected, shared widely divergent views 9/9
on the propriety of judicial participation in plea bargaining.
As William F. McDonald and James A. Cramer discovered in
their study of trial judge participation, one area of difficulty is the actual definition of such involvement.
As it is currently used in the literature, judicial
participation ranges from a gentle nudging or cajoling
of defendants and defense attorneys into entering into
plea agreements to active involvement in preplea discussions. Facilitating plea discussions by giving tentative sentence ranges or specific sentences has also been
labeled judicial involvement. Even the model codes and
advisory commissions are vague on this point. It is
helpful, therefore, to make a distinction between being
involved in the plea-bargaining process and being involved
in the plea discussions themselves. Judges can stay
away from participation in the negotiations themselves
but may apply direct or indirect pressure on the parties
to arrive at a plea agreement suitable to the c o u r t . 2 4 3
McDonald and Cramer studied six state jurisdictions and
concluded that there seems to be a trend growing in which trial
judges are less directly involved in the plea bargaining
process.^44
There are several reasons for this. First, as prosecutors
have gained relatively greater power in determining the
disposition of many cases, the need for defense attorneys
and prosecutors to seek judicial acceptance of their
agreements has declined . . . Second, the fading of
implicit bargaining and the increased control of the
prosecutor's power in determining the plea bargain is
coupled with the increased size of the justice system . . .
While the autonomy of each judge is maintained, the prosecutor is able to wield power and control over a larger
segment of the system and, if necessary, avoid any particular judge or set of judges to a great extent. The
judiciary and defense attorney cannot, however, avoid the
prosecutor. Finally, the federal and some state legislatures
have opted to exclude trial judges from a participatory
role in plea discussions.245
• KJ
i
61
The study also found that many judges who abstained from actual
involvement in the plea negotiations themselves, would nevertheless continue to see defense counsel and the prosecutor in
9 A c
chambers to discuss difficulties in plea bargains.
The
judges following the procedure mainly stated that they would
only see counsel in chambers when the plea discussions broke
2A7
down.
"They felt it was the judge's role to be a facilitator
oA o
and point out possible ways of resolving the plea."
Addi-
tionally, the element of certainty would become present after
a visit in chambers with the trial judge.
Finally, many judges
believed that by overseeing the negotiations in this manner,
they were much more able to determine if the requirements of
249
due process were indeed being complied with.
Of course,
many judges took the opposite position and steadfastly refused
to see counsel in chambers to discuss plea negotiations.
The
main reason offered for this argument was a fear among trial
judges that impartiality might be forsaken if counsel discussed
the bargain with them in chambers.
session to be held in open court:
One judge wanted such a
"to conduct such sessions
in chambers (plea negotiations) would be in my estimation
contrary to the interest of justice . . . the defendant has
the right to know what goes on at all times.
And since I will
not see a defendant in my chambers for plea negotiations,
this
250
mandates that everything should be in open court."
The study also looked into sentence recommendations and
"did not find a relationship between willingness to accept a
sentence recommendation in court and participating directly
62
in plea discussions.
131Even within the same jurisdiction
there is great variations in a judge's proclivity in accepting
the prosecutor's sentencing recommendations.
The study offers
these comments from six different judges in the same jurisdiction to illustrate:
1.
The prosecution can make a sentence recommendation,
but I will ignore it. In sentence-bargaining, lawyers
are reduced to messenger boys running back and forth
between the judge and client.
2.
I will listen and give strong consideration to sentences
suggested by the parties.
3.
Sentencing is the judge's function.
DA's business.
4.
I rarely allow sentence agreement.
5.
I would be likely to give little interpretation to any
sentence recommended by the DA, and at the same time
any sentence recommended by the defense attorney is
likely to be too partial to the defendant.
6.
I will consider a sentence agreement only after the
plea of guilty has been entered, and then I nearly
always follow it.252
It's none of the
However, it is generally true that whether or not the prosecutor actually makes an in-court sentence recommendation is not
the real crucial issue.
McDonald and Cramer discovered in their
research, that seasoned trial attorneys had no real difficulty
in accurately predicting what type of sentence a particular
253
judge would make under a given set of circumstances.
The
very existence of judge shopping suggests strongly that individual
policies of judges regarding particular offenses or sentencing 254
policies in general are known to those who practice in court."
Probably the main fear of substantial judicial involvement
in plea bargaining is that the defendant will be intimidated into
63
accepting the judge's advice to plead guilty even though he
may really want to insist on his right to a trial. 255
McDonald
and Cramer feel that such intimidation will only happen in
jurisdictions in which the trial judge has tremendous latitude
in sentencing (determinate sentencing system); or at the opposite
extreme where the judge has absolutely no latitude in sentencing
(indeterminate sentencing system).
In summary, McDonald and
Cramer state:
The critical point is not whether judges should be involved
but what we want their function to be. In determining
which is preferable--a participating or nonparticipating
judge--it is the functions we wish judges to fulfill that
should dictate our choice . . . if judges are to be seen
as a check on prosecutorial power, police behavior, and
defense counsel effectiveness, in addition to the function
of referee and sentencing authority, then we are asking
for judges who are constantly in touch with the decisionmaking process from essentially the point at which the
prosecutor decides to go forward with the case until its
ultimate disposition. And it is precisely the point that
judges participating in the plea-negotiation process are
likely to be more effective than those aloof from it that
must be recognized.2 6
IV.
Conclusion
This paper has taken an in-depth look at the practice of
plea bargaining.
It has discussed the history of plea bargaining
from its dark secretive days to the present practice of open
and legitimate bargaining as illustrated by landmark court
decisions.
Specific jurisdictional extremes have been magnified
as shown by the federal "plea bargaining" system and the Alaskan
"trial" system.
The main actors in the plea bargain process
were identified and investigated.
Still the question remains-
is plea bargaining a desirable, practical and just method to
64
handle the massive volumes of criminal cases which appear on
dockets throughout the nation?
To be consistent with the law,
and the act of lawyering, there are always two sides to such a
question.
The general public is not fond of the practice of plea
bargaining.
Most would tend to view it as bargaining away
society's interest in the protection of crime.
To the layman,
plea bargaining coddles criminals by giving them less punishment than the crime for which the criminal is guilty of mandates
that he should receive.
The public views plea bargaining as
a dirty, closed doors, exercise which epitomizes their negative image of criminal law practice.
There are some very serious problems involved in plea bargaining.
First of all, there is always the chance that a inno-
cent man will plead guilty.
He may truly be innocent but the
prosecutor may have several witnesses who would swear the
defendant committed the crime.
The defense attorney believes
his client but also knows there is a good chance of a conviction
which means serving a sentence in a penitentiary.
The prosecutor
offers probation if the defendant will plead guilty.
dant accepts the offer.
The defen-
But the question remains whether he
accepted it because he was guilty or because it was the prudent
choice.
Another problem in plea bargaining is that a bargain
may tell the judge that the prosecutor really does not feel that
he could convict the defendant if there was a trial.
The judge
could then give the defendant a lesser sentence than the prosecutor recommended.^ 7
65
Another problem, alluded to above, is that plea bargaining
undermines the general public's faith in justice and the legal
profession.
The ultimate question here, is whether justice can
ever be bargained.
Along these lines, plea bargaining may also
offer opportunity for corruption that would not exist under a
trial system.
In plea negotiations, justice is primarily decided
by a meeting of the minds between the prosecutor and defense
attorney.
The chance for abuse and favoritism is abundant,
especially when the awesome number of cases which conclude with
a plea bargain is taken into consideration.
Aside from trade-
outs or special treatment, another possible abuse is a simple
bad deal due to the negligence or inexperience of the prosecutor
or defense attorney.
Due to caseload pressures, the lawyers
involved full time in criminal justice are forced to move cases
as quickly as possible.
Errors, such as bargaining cases which
should never have been bargained, are common when an attorney
is overworked and can spend only a minimum amount of time on
,
258
a number of cases.
Of course, the main argument against plea bargaining rests
on the premise that its only justification, that without it the
increase in trials would collapse the system, has been proved
to be untrue.
Critics quickly cite Alaska and Maricopa County,
Arizona,as examples of jurisdictions which have abandoned plea
bargaining and have not experienced any substantial increase in
trials.
In fact in these jurisdictions, guilty pleas continued
to be the predominant disposition of cases without any additional
concessions or promises of leniency.
66
Elimination of plea bargaining is likely to create less
of an increase in the number of trials than many believe.
It is virtually certain, however, that it will increase
the fairness and rationality of the processing of criminal
defendants . . .
By imposing a penalty upon the exercise
of procedural rights in those cases in which there is a
reasonable likelihood that the rights will be vindicated,
the plea negotiation system creates a significant danger
to the innocent . . . Plea negotiations not only serve
no legitimate function in the processing of criminal
defendants, but it also encourages irrationality in court
process, burdens the exercise of individual rights, and
?I-q
endangers the right of innocent defendants to be acquitted.
Supporters of plea bargaining will argue that the procedure
is a pragmatic necessity.
They will point to the present con-
stitution of the criminal justice system which simply cannot
grant a trial to each and every defendant.
The public, to be
sure, abhors the practice of plea bargaining and wants its
elimination.
However, especially in these troubled economic
times, that same public is not willing to pour funds into the
criminal justice system to provide the additional court personnel
and facilities which a "trial" system would require.
Chief
Justice Burger recently remarked that only a ten percent reduction in the number of guilty pleas would double the number of
7
f\
0
trials.
The growth of the bar has just not matched the
growing number of criminals.
The need for plea bargaining is not just based upon the
practical side of the criminal justice system.
There are, in
fact, a number of advantages in adopting a "bargain" system.
"For one, plea bargaining brings about a quick, efficient disposition of a criminal case without the need for trials, retrials,
9
or appeals."
f>
1
Additionally, a bargained for plea with a
promise of leniency may be the only way to have defendants
)289
M
67
testify against each other, to break up a conspiracy and
convict the "big fish."
Plea bargaining is also efficient
for the guilty defendant who realizes he has been caught and
just wants to begin serving his time.
A guilty plea bypasses
the notoriety and negative publicity that accompanies a fullscale trial.
By pleading guilty the offender minimizes the
chance of being ridiculed and ostracized by his community.
The main justification for plea bargaining, aside from
its administrative convenience, is that it provides a method
for individualizing justice.
In this sense, plea bargaining
r\ f
r\
may avoid the inequities or injustice of some statutory laws.
"Injustice would result if certain laws were arbitrarily applied
without evaluating the character
of each defendant or the ciro
cumstances of the crime."
r\ r
Grounds which justify leniency to the defendant include
the low mentality of the defendant, certain conduct is
viewed as normal within the subculture of the defendant,
evidence that the defendant is innocent, the minimal
harm caused by the offense, possible improper motives
by the complainant, reluctance of the victim to testify
and prolonged non-enforcement of the s t a t u t e . 64
The supporters of plea bargaining believe that:
"the only
way to preserve judicial independence and neutrality in our
criminal justice system, given our limited facilities and
resources, is to encourage full and complete plea bargaining
265
by both the prosecution and the defense."
)289
M
68
Footnotes
"'"Henry Campbell Black, Black's Law Dictionary (St. Paul:
West Publishing Co., 1979), p. 49.
2
Milton Heumann, Plea Bargaining (Chicago: University
of Chicago Press, 1978), p. 1.
3
National Advisory Commission on Criminal Justice
Standards and Goals, 1973. A National Strategy to Reduce Crime.
(Washington, D.C.: Government Printing Office, 1973), pp. 97-99,
^Alschuler, The Prosecutor's Role in Plea Bargaining,
36 U. Chi. L. Rev. 50, at 50. (Fall 1968).
5
Id..
c•
U. S. Department of Justice, Plea Bargaining in the
United States (Washington, D.C.: Government Printing Office,
1977), p. 16.
7
Ed Hagen, Plea Bargaining (Lexington:
and Company, 1980), p. 29.
D. C. Heath
Q
Alschuler, Prosecutor's Role, p. 51.
9
ia.
10
id.
11
404 U.S. 257, at 260.
(1971).
Id., at 261.
13
Id.
1Zt
Hagen, Plea Bargaining, p. 30.
15
id.
16
id.
17
id.
18
Id., at 31.
19
Id.
20
Id. , at 32.
21
Id.
22
The Trial Judge's Satisfaction as to Voluntaries and
Understanding of Guilty Pleas, Wash. U. L. Q. 289, at 313.
(1970).
aaAOA
23
Hagen. Plea Bargaining, p. 31.
24
Id.
25
Id.
26
Id.
27
Id., at 32.
28
Id.
29
Id.
30
Id.
31
397 U.S. 759.
32
Haeen. Plea Bargaining, p. 33.
33
(1980).
Id.
34
I Mass. 94.
35
Id., at 96.
(1804).
36
2 S.W. 235 (1886).
37
242 F.2d 101 (5th Cir., 1957).
38
Id., at 113.
39
377 U.S. 266 (1964).
40
Id.
41
397 U.S. 742 (1970).
42
Id., at 752-753.
43
Haeen. Plea Bargaining, pp. 37
44
394 U.S. 459 (1968).
45
Id., at 467.
46
Haeen. Plea Bargaining,, p. 38.
47
394 U.S. 238 (1968).
48
84 Yale L. J. 1179, at 1278 (1975).
49
400 U.S. 25 (1970).
50,
84 Yale L.J. 1179, at 1279 (1975).
51,
"Id. , at 1281.
52
Id., at 1283.
53
Id.
54
Id.
55
Id., at 1284.
56
Id.
57
Id.
58
Id., at 1286.
59
Id., at 1287.
60
Id., at 1290.
61
400 U.S. 25, at 37 (1970).
62
Tremblay v. Overholser, 199 F.Supp. 569, 570.
63
McCoy v. United States, 363 F.2d. 306, 308.
64
State v. Kaufman, 51 Iowa 578, 580, 2 N.W. 275, 276
(1879).
65
400 U.S. 25, 37 (1970).
66
84 Yale L.J. 1179, at 1292.
67
Id.
68
Id., at 1293-1294.
69
Id., at 1296.
70
Id.
71
Id., at 1297.
72
404 U.S. 257 (1971).
73
Id.
74
395 U.S. 711 (1969).
7
~*Pue Process Not Violated W1len Prosecutor Carries Out
Threat to Reindict Accused on More Serious Charges After Plea
Bargain on Original Charge Is Refused, 10 St. Mary's L.J. 329,
333 (1978).
76
417 U.S. 21 (1974).
77
10 St. Mary's L.J. 329, 333.
78
Id.
79
505 F.2d. 407 (D.C. Cir., 1975).
80
10 St. Mary's L.J. 329, 333.
S1
404 F.Supp. 505 (S.D. Col., 1975).
82
Id.
83
534 F.2d. 1367 (9th Cir., 1976).
84
10 St. Mary's L.J. 329, 334.
85
434 U.S. 357 (1978).
86
Ky. Rev. Stat. § 431, 190 (1970).
87
10 St. Mary's L.J. 329, 333, 334.
88
Id., at 334-335.
89
394 U.S. 711 (1969).
90
417 U.S. 21 (1974).
91
434 U.S. 357 (1978).
92
10 St. Mary's L.J. 329, 337-338.
93
Fed. R. Crim. P. 11.
94
Michele Hermann, ed., Rules of Criminal Procedure for
the United States District Courts (New York; Clark Boardman,
1982), p. 109.
Q C
ABA Standards Relating to Pleas of Guilty (Approved
Draft, 1968), pp. 1-2.
Q (->
Hermann, Rules of Criminal Procedure, p. 114.
9 7
98
m.
Id., at 115.
" i d . , at 116.
100
Id.
00283
72
101
Id.
102
Id.
103
Id., at 117.
10Z
*221 F. Supp. 930 (W.D.N.C. 1963).
105
Id., at 935.
^Hermann, R u l e s ^ r i m i ^ ^
P"
107
Id., at 117-118.
108
Id. , at U 8 .
109
Id.
110
2 5 6 F.Supp- 244 (S.D.N.Y. 1966).
lll T d
'
254.
,
3 Cal.3d. 595. 91 Cal. R P « .
112
113
at
117
m
47]
P.2d. 409
384, 477
4 7 7 P.2d. 409, 417, 418.
^Hermann, R u l e s ^ r i m i ^ ^ ^
115
Id., at 123.
ll6
Fed. R. Crim. P. U -
7
Hermann, R u l e s _ o f ^ r i m n ^ ^
U8
I d . , at 123-124.
U9
I d . , at 101.
P-
P-
U 9
*
123
'
l 2 0 Id., at 124.
121
Id.
122
Fed. R. Crim. P. H -
123Hermann, R u l e s _ o t J ^ ^ ^
124
Id
125
6 0 1 F.2d. 968 (8th Cir., 1979).
126
Id.
27
U 9
'
Hermann, Rules of Criminal Procedure, p. 119.
(1970)
128
Id., at 103.
129
Id., at 120.
130
Id.
131
Id., at 124.1.
132
Fed. R. Evid. 410.
133
Hermann, Rules of Criminal Procedure, p. 124.1.
134
Id.
135
Id.
136
Id., at 124.2.
137
536 F.2d. 1137 (6th Cir., 1976).
138
Id., at 1139.
139
Hermann, Rules of Criminal Procedure, p. 124.2.
wo
id.
141
U2
id.
I d . , at 121.
U3
Id.
ABA Standards Relating to Pleas of Guilty (Approved
Draft, 1968), § 1.6.
144
145
Hermann, Rules of Criminal Procedure, p. 121.
146
Id., at 122.
147
Id., at 105-106.
148
2 2 Prac. Law. 20 (1976).
1 49
William F. McDonald, Plea Bargaining (Lexington:
Heath 1 5and
0
id.Company, 1980), p. 25.
151
Id., at 26.
152
Id.
153
Id., at 28.
00283
D. C,
74
154
Id.
155
Id., at 33.
156
Id.
157
Id.
158
Id., at 32.
159
Id., at 34.
160
Id., at 35.
161
Id., at 36.
162
Id., at 37.
163
Id., at 38.
164
Id., at 42.
165
Id., at 42- 43.
166
Id., at 44.
167
Id., at 45.
168
Id., at 46.
169
Id., at 48.
170
Id., at 48- 49.
171
Id., at 48.
172
Id.
173
Id., at 52.
174
Xd.
175
Alschuler, The
gaining, 34 Yale L.J. 1179, 1182 (1974).
176-Id., at 1185.
177 Id., at 1186.
178 Id.
179 Id., at 1187.
180 Id., at 1188-1189,
00286
75
181
Id., at 1191-
182
Id., at 1198.
183
Id.
184
Xd., at 1199.
185
Id., at 1200.
186
Id.
187
Id., at 1202.
188
Id.
189
Id., at 1203.
190
Id., at 1208.
191
Id.
192
Id.
193
Id.
194
Id., at 1209.
195
Id., at 1210.
196
Id.
197
Id., at 1219.
198
Id.
199
Id., at 1222.
200
Id.
201
Id.
202
Id., at 1223.
203
Id., at 1226.
204
Id.
205
Id., at 1228.
206
Id., at 1228-1
207
Id., at 1229.
76
'Id.
'id.
210!ld.
211"Id. ,
at 1231.
212'Id.
213'id. , at 1239.
214 Id.
215 Id. , at 1240.
216'Id., at 1246.
217 Id. , at 1247.
218 Id.
219 Id.
220 Id., at 1248.
221 Id. , at 1249.
222 Id.
223
447 Ariz. St. L.J. 557, 559 (1978).
224
Id., at 560.
225
1978 Trial Lawyers Guide 399.
226
w.
227
563 F.2d. 1145 (4th Cir., 1977).
99
R
1978 Trial Lawyers Guide 399, 401.
229
369 U.S. 705, 719 (1962).
1978 Trial Lawyers Guide 399, 401.
231
Id.
232
Id., at 402.
233
36 U. Chi. L. Rev. 50, 106 (Fall, 1968)
McDonald, Plea Bargaining, pp. 139-140.
r\
q
t
002W
77
235
Id., at 140.
236_ ,
Id.
237
Id.
238
Id.
239
535 F.2d. 198 (2nd Cir., 1976).
o/ n
McDonald, Plea Bargaining, pp. 140,
241
Id., at 141.
242
Id.
243
Id.
244
Id., at 142.
245
Id.
246
Id.
247
Id., at 143.
248
Id.
249
Xd.
250
Id.
251
Id., at 145.
252
Id., at 146.
253
Id.
254
Id.
255
Id., at 147.
256
Id., at 147-148.
257
6 2 A.B.A.J. 621, 622 (1976).
258
Id.
259
Id., at 623.
260
5 2 Cal.St.B.J. 214 (1977).
261
Id.
M
)289
262
Id.
263 Id.
264 Id.
265
Id.