Crim B4
Chapter 12
Plea Bargaining and Guilty Pleas
CHAPTER OVERIVEW
Plea bargaining occurs when the prosecution offers some concession to the
defendant in exchange for a guilty plea. Two common forms of plea
bargaining can be discerned. The first, charge bargaining, occurs when the
prosecutor offers to charge the accused with a less serious offense in
exchange for a guilty plea. The second, sentence bargaining, occurs when
the prosecutor promises the defendant a favorable sentencing
recommendation.
The second section outlines the history of plea bargaining and
arguments for and against its use. Plea bargaining is how most cases in the
U.S. criminal justice system are disposed of. By some estimates, 90% of
all criminal cases are resolved through plea bargaining. Supporters of the
practice claim that bargaining is necessary to ensure the orderly and
prompt flow of criminal cases. Critics claim, among other things, that
defendants are forced to give up important constitutional rights as a result
of the plea bargaining process.
The third section summarizes the procedures in the plea-bargaining
process and the effects of plea bargaining. First, the defendant must be
represented by counsel and that counsel must be effective. Second, the
defendant has the right to be informed by the prosecution of exculpatory
evidence in the state’s possession. Third, the prosecution can offer a wide
range of inducements to the defense in order to secure a guilty plea, but
those inducements cannot be coercive in nature. Further, there is some
question about the propriety of so-called “ad hoc” plea bargaining: the
practice of offering inducements to the defendant other than charge
reductions and sentencing recommendations. Finally, statutory and
judicial inducements for the defendant to plead guilty should be kept to a
minimum. Plea bargaining affects four parties: (1) the Court, (2) the
prosecutor, (3) the defendant (most often through the defense attorney),
and (4) the victim.
The fourth section outlines the elements of a valid guilty plea.
A court will not accept just any plea agreement put before it. All plea
agreements must be valid—that is, they must be knowing and intelligent,
voluntary, and based in fact. A knowing and intelligent waiver is one in
which the defendant understands the charge, the possible sentences, and
the rights waived as a result of bargaining. A voluntary plea is one that is
not coerced by the state. Finally, a plea agreement should be based in
fact—that is, premised on conduct that actually took place. In other words,
the defendant should not plead guilty to a crime he or she did not commit,
although this clearly happens from time to time.
The fifth and final section summarizes how a guilty plea may be
contested. A guilty plea can be contested in at least two ways. First, the
defendant can seek to withdraw his or her guilty plea. Doing so is fairly
difficult once the Court has accepted the plea. The defendant must show,
for example, that the plea was involuntary to have it withdrawn after the
Court accepts it. Next, if the defendant is denied a request to withdraw his
or her guilty plea, he or she can appeal that decision.
PLEA BARGAINING
The practice of plea bargaining is often thought of simply as a process
that results in a defendant accepting a guilty plea to lesser charge in
exchange for a lighter sentence. However, the process is much more
complex, and may take many forms depending on the case or situation.
There are also a variety of concessions that may be offered to a defendant
in exchange for a guilty plea.
Charge bargaining refers to the prosecutor’s ability to negotiate with the
defendant in terms of the charges that could be filed. Sentence bargaining,
by contrast, is when the defendant agrees to plead guilty in exchange for a
less serious sentence. Charge bargaining is largely carried out between the
prosecution and the defense. Sentence bargaining requires getting the
judge involved because he or she usually hands down the sentence. In fact,
there is even such a thing as count bargaining, in which the defense
negotiates to have the defendant charged with fewer counts of a certain
offense.
The History and Rise of Plea Bargaining
Historical Origins.
One of the earliest reported cases addressing plea
bargaining was decided in the early 1800s. In that case,
Commonwealth v. Battis, 1 Mass. 95 (1804), a court was
hesitant to permit a guilty plea by a defendant charged with
a capital crime. The Court gave the defendant time to
contemplate his plea and even “examined, under oath, the
sheriff, the jailer and justice (before whom the examination
of the prisoner was had [sic] previous to commitment), as
to the sanity of the prisoner; and whether there had been
tampering with him, either by promises, persuasions, or
hopes of pardon if he would plead guilty.”
Plea bargaining became even more common in the early to
mid-1900s. Many states had, by then, impaneled
commissions to study the workings of their criminal justice
systems. An example of one such commission was the New
York State Crime Commission, which was impaneled in
1927.
Reasons for the Rise in Plea Bargaining.
As the U.S. legal system began to mature and lawyers
became regular participants, trials slowed down and guilty
plea rates increased out of necessity.
Arguments in Support of Plea Bargaining
Plea bargaining is a widely accepted practice in the U.S. justice
system, largely because of the costs associated with trials, and the
benefits it provides for the Court system. Plea bargaining benefits
all members of the Courtroom work group:
• Prosecutor
• Defense attorney
• Defendant
• Court (the judge)
Thus, the arguments in support of plea bargaining are really
arguments concerning the benefits of reaching plea agreements.
Each of these arguments needs to be viewed in context, however.
In some situations, as played out in a few highly celebrated cases,
the costs of plea bargaining may outweigh the benefits.
Plea bargaining benefits the prosecutor because it provides him or
her with a greater ability to dispose of a busy case load. Defense
attorneys also benefit from plea bargaining. Public defenders, who
are the most common type of counsel in criminal trials, face
resource constraints similar to those of prosecutors. Thus, plea
bargaining benefits public defenders by allowing quick disposition
of cases. Plea bargaining benefits the defendant perhaps more than
the prosecutor or the defense attorney. The obvious reason for this
is that the defendant generally receives a lesser sentence (or
charge) as a result of plea bargaining. The Court also benefits from
plea bargaining. The prompt disposition of cases saves judicial
resources, as reviewing a plea agreement takes less time than
holding a full-blown trial.
Criticisms of Plea Bargaining
The prosecutor may overcharge as a first step in the bargaining
process. This negotiation process is much like that of buying a
used car at a dealership, in which the dealer usually starts with a
ridiculously high price but is willing to negotiate. In the end,
however, some buyers end up purchasing a car for more than its
fair market value. Plea bargaining may also contribute to
inefficiency. Plea bargaining is also viewed as undermining the
integrity of the criminal justice system.
Another reason that plea bargaining may undermine the
criminal process is that it effectively decides the defendant’s guilt
without having a trial, an exhaustive investigation, or the
presentation of evidence and witness testimony. Plea bargaining
may also allow criminals to get away with their crimes—or at least
to receive lenient sentences. Perhaps the most serious consequence
of plea bargaining is that innocent individuals may be coerced into
pleading guilty.
In North Carolina v. Alford, 400 U.S. 25 (1970). In that
case, the defendant, facing the death penalty if he was convicted,
pleaded guilty to the crime, but did not admit to all elements of it.
His plea (and other similar pleas) was promptly dubbed the Alford
plea. Certain jurisdictions permit Alford pleas (also called “bestinterests pleas”). A defendant who makes an Alford plea does not
allocute, which means he or she does not—and indeed is not
required to—explain the details of the offense to the judge.
Attempts to Restrict Plea Bargaining
One method by which some jurisdictions have limited plea
bargaining is to impose a cutoff date, which prohibits plea
bargaining after a case has been in process for a certain amount of
time. Another method of restricting plea bargaining has been to
ban some or all types of plea agreements. Some jurisdictions have
also experimented with banning plea bargaining for certain
offenses. Judges have also experimented with plea-bargaining
restrictions within their jurisdictions.
The Supreme Court’s View on Plea Bargaining
In Brady v. United States, 397 U.S. 742 (1970), the Court stated,
“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 who in turn extends a substantial
benefit to the State.” In Santobello v. New York, 404 U.S. 257
(1971), the Court offered the following rationale in support of plea
bargaining: “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.”
THE PLEA-BARGAINING PROCESS
The prosecutor can make several different types of offer in order to obtain
a guilty plea. The most straightforward and common method is to reduce
the charge or charges against the defendant. Other alternatives include
dismissing other pending charges and promising to recommend a
particular sentence.
Constitutional Rights during Plea Bargaining
Plea bargaining is a method of circumventing criminal trial, and
the rights available to the defendant during bargaining are not the
same as those available during trial. Even so, there are important
rights that the defendant still enjoys during the plea-bargaining
process, including the rights to effective assistance of counsel and
to be informed of exculpatory evidence. The defendant does not
have the right to be present at important stages of the bargaining
process.
Acceptable Inducements by the Prosecution
The Constitution places few restrictions on offers the prosecution
may make during the bargaining process, which are known as
prosecutorial inducements. In Brady, the first Supreme Court case
to condone plea bargaining, the Court considered extent pressure
may be applied to induce a defendant into entering a guilty plea.
The defendant in Brady was charged with kidnapping under a
statute that permitted (1) a jury to recommend the death penalty if
it saw fit or (2) a judge to sentence the defendant to life in prison,
if guilt was determined via a bench trial. The defendant opted for a
jury trial but then changed his plea to guilty and was sentenced to
30 years. He then argued that the statute effectively compelled him
to plead guilty because of fear of the death penalty. The Supreme
Court rejected this claim.
In Bordenkircher v. Hayes, 434 U.S. 357 (1978), the defendant
was indicted by a grand jury for forging a check for $88.30. The
range of punishment was 2–10 years in prison. The prosecutor
offered to recommend a five-year sentence but threatened to seek
an indictment under a habitual criminal statute if the defendant did
not accept the offer. Since the defendant had two prior felony
convictions, a conviction under the habitual criminal statute could
have resulted in life in prison.
In a related case, United States v. Goodwin, 457 U.S. 368 (1982),
the Court reached a similar decision. In that case, the defendant
was indicted on additional charges after plea negotiations broke
down. The Court held that the prosecutor could file additional
charges if an initial expectation that the defendant would plead
guilty to a lesser charge proved unfounded. The Court refused to
accept the defendant’s argument that the prosecution was
vindictive and, once again, gave broad authority to prosecutors in
the plea-bargaining process.
Questionable Inducements
Occasionally, plea bargaining results in strange concessions by
defendants as part of a plea agreement. One commentator, Judge
Joseph Colquitt, has used the term ad hoc plea bargaining to refer
to some of these agreements. He has stated: “Ad hoc bargains exist
in at least five forms: (1) the Court may impose an extraordinary
condition of probation following a guilty plea, (2) the defendant
may offer or be required to perform some act as a quid pro quo for
a dismissal or more lenient sentence, (3) the Court may impose an
unauthorized form of punishment as a substitute for a statutorily
established method of punishment, (4) the State may offer some
unauthorized benefit in return for a plea of guilty, or (5) the
defendant may be permitted to plead guilty to an unauthorized
offense, such as a ‘hypothetical’ or nonexistent charge, a
nonapplicable lesser-included offense, or a nonrelated charge.”
Statutory and Judicial Inducements
Defendants may also be motivated to enter pleas as a result of
statutory and judicial inducements. Statutory inducements refer to
laws that provide lenient sentences in exchange for guilty pleas.
Judicial inducements are actions by judges that influence the
bargaining process.
Statutory Inducements.
In Corbitt v. New Jersey, 439 U.S. 212 (1978), the
defendant was charged with first-degree murder. The
statute provided that if he decided to plead guilty to the
crime, he could be sentenced either to life imprisonment or
to a term of 30 years. The defendant opted to take his
chances and go to trial. He was convicted and sentenced to
life in prison. The defendant claimed that the statute
violated due process, but the Supreme Court upheld it in
the interests of consistency.
Judicial Inducements.
Certain jurisdictions permit a degree of judicial
involvement in the plea-bargaining process. For example,
the American Bar Association standards regarding guilty
pleas permit judicial participation when it is requested but
only for the purpose of clarifying acceptable charges and
sentences.
EFFECTS OF PLEA BARGAINING
Effects on the Court
The court is not bound to accept a plea agreement. In deciding
whether to accept the bargain, the Court weighs the sometimes
competing interests of the agreement and the public interest. Thus,
if accepting a plea agreement poses a significant risk to the
public—say, because a dangerous criminal will be spared prison
and placed on probation (an unlikely event)—then the Court has
the discretion to deny it.
Effects on the Prosecutor
The consequences of plea bargaining are of far greater magnitude
for the prosecutor than for the Court. Assuming the Court accepts a
plea bargain, whether it is a charge or sentence reduction, then the
prosecutor must fulfill his or her part of the agreement.
Importantly, though, the prosecutor is not bound by the plea
bargain prior to the point at which it is accepted by the Court.
Prosecutorial Obligations Before the Court Accepts the
Bargain.
In Mabry v. Johnson, 467 U.S. 504 (1984), the Supreme
Court considered the extent to which a prosecutor must
uphold his or her end of the bargain prior to the point at
which the Court accepts it. In that case, the defense
attorney called the prosecutor to accept a plea offer, but the
prosecutor told him that the offer was a mistake and
withdrew it. The prosecutor then offered a harsher offer in
its place, one that would have resulted in a longer prison
term.
Prosecutorial Obligations After the Court Accepts the Bargain.
In general, the prosecution is bound to its plea-bargaining
promises after the Court accepts the bargain.
In United States v. Benchimol, 471 U.S. 453 1985), the
Supreme Court seemed to change its opinion with regard to
a prosecutor’s breach of a plea agreement after it has been
accepted by the Court. The prosecutor agreed to
recommend a sentence of probation with restitution, but the
presentence report mentioned nothing of the agreement.
The defense attorney pointed out the error, and the
prosecution admitted that an agreement had been reached.
Even so, the trial court sentenced the defendant to six years.
The defendant then sought to have his sentence vacated,
and the Court of appeals agreed. However, the Supreme
Court reversed, holding that unless the prosecution supports
a recommendation “enthusiastically” or sets forth its
reasons for a lenient recommendation, the Court is under no
obligation to honor the agreement.
Effects on the Defendant
The defendant who accepts an offer to plead guilty often faces
consequences besides a reduced sentence or charge. Important
rights are often waived, such as the right to appeal, the right to a
jury trial, and the privilege against self-incrimination. Also, if the
defendant supplies inaccurate information during the course of plea
negotiations, he or she may not benefit from lenient treatment.
Furthermore, in exchange for pleading guilty, the prosecution may
require that the defendant testify against a codefendant.
In Ricketts v. Adamson, 483 U.S. 1 (1987), the defendant testified
against both of his codefendants in exchange for a reduction in the
charge he was facing. He was then sentenced on the reduced
charge. After that, the codefendants’ convictions were overturned
on appeal. The prosecution then retried the codefendants, but the
original defendant refused to testify at the second trial, claiming
that his duty had been fulfilled. The prosecution then filed
information charging him with first-degree murder. The Supreme
Court did not bar the first-degree murder prosecution because the
original agreement contained a clause to the effect that the
agreement Brennan did acknowledge, however, that the defendant
could have construed the plea agreement only to require his
testimony at the first trial.
Effects on the Victim
While plea bargaining mainly occurs between the prosecution and
defense, it is also important to consider the impact on the victim.
Victims are affected by plea bargaining in at least two respects.
First, a plea agreement may give the victim a measure of closure
relatively quickly. On the other hand, a plea agreement may be
viewed by the victim as too lenient. That is, he or she may feel the
offender was not adequately “punished” for the offense in
question. To address this problem, several states have laws that
require victim involvement or input during the bargaining process.
ELEMENTS OF A VALID GUILTY PLEA
In Boykin v. Alabama, 395 U.S. 238 (1969), the Supreme Court held that it
would be unconstitutional “for the trial judge to accept [a] guilty plea
without an affirmative showing that it is intelligent and voluntary.” In
order to determine that the plea is voluntary, the judge usually questions
the defendant. As the Court noted in McCarthy v. United States, 394 U.S.
459 (1969):
By personally interrogating the defendant, not only will the judge be
better able to ascertain the plea’s voluntariness, but he also will
develop a more complete record to support his determination in a
subsequent post-conviction attack. . . . Both of these goals are
undermined in proportion to the degree the district court judge resorts
to “assumptions” not based upon recorded responses to his inquiries.
Intelligence
In general, for a plea to be intelligent (understood), it must
conform to specific requirements. The defendant must understand
(1) the nature of the charge or charges of which he or she is
accused, (2) the possible sentence or sentences associated with the
charges, and (3) the rights he or she may waive if a guilty plea is
entered. A person whose mental capacity is called into question
may be declared incompetent at a pretrial hearing and treated in
order to restore his or her competency.
Understanding the Charge.
In Henderson v. Morgan, 426 U.S. 637 (1976), the
defendant was charged with first-degree murder. He
pleaded guilty to second-degree murder following an offer
by the prosecution. Several years later, he sought to have
his conviction voided on the grounds that at the time he
entered his plea, he did not understand that one of the
elements of second-degree murder was intent to cause
death. The Supreme Court held that “since respondent did
not receive adequate notice of the offense to which he
pleaded guilty, his plea was involuntary and the judgment
of conviction was entered without due process of law.” The
element of intent (the mens rea) in second-degree murder
was viewed as critical, which meant it should have been
explained to the defendant.
Understanding the Possible Sentences.
The Federal Rules of Criminal Procedure expressly require
that the defendant understand the consequences of the plea.
This includes an understanding of the minimum and
maximum sentences as well as applicable sentencing
guidelines that the judge might be required to abide by.
Understanding of Rights Waived as a Result of Pleading
Guilty.
The rights waived as a result of plea bargaining are
different than the rights denied as a result of plea
bargaining. For example, loss of the right to vote is not a
loss due to voluntary waiver; it is a consequence tied to
being convicted (even if by guilty plea) of a serious crime.
The rights waived are those the defendant would otherwise
be granted by the Constitution but are essentially given up
voluntarily in exchange for lenient treatment.
Voluntariness
In addition to the requirement that a plea be understood, it also
must be voluntary. Even though a plea may be understood, it may
have resulted from coercion, threats, physical abuse, or the like.
Thus, the Federal Rules of Criminal Procedure require that a plea
be “voluntary and did not result from force, threats, or promises
(other than promises in the agreement).”
Factual Basis
For a plea bargain to be valid, the plea must result from conduct
that has a basis in fact. In other words, a defendant cannot (in the
view of the Court, anyway!) plead guilty to a crime he or she did
not commit. This means that the Court should inquire about the
crime in question by, perhaps, having the accused describe the
conduct giving rise to his or her guilty plea.
CONTESTING A GUILTY PLEA
The defendant may wish to contest the guilty plea he or she enters for at
least three reasons:

If the plea was the product of coercion by the prosecution

If the prosecution has failed to fulfill its end of the bargain

If other problems emerge, such as unconstitutional conduct on
the part of law enforcement officials
Withdrawing a Guilty Plea
Any time the Court refuses to accept a plea agreement reached by
the prosecution and the defense, the defendant can usually
withdraw the plea. Similarly, if the defendant pleads guilty even
when there has been no plea bargaining, he or she can seek to
withdraw his or her plea. However, if the prosecution disagrees
with the Court’s decision to refuse the plea, then the defendant
might not be able to withdraw his or her plea. Once a plea has been
accepted by the Court, then it can only be withdrawn in limited
circumstances.
Appealing a Guilty Plea
If the defendant moves to withdraw his or her plea and is denied
this request, then an appeal is appropriate. If the withdrawal period
has passed, then the only other method of appealing a guilty plea is
through direct appeal. This creates something of a difficult
situation for the defense. Since an appeal is mostly considered
based on the trial court record, then the defendant has limited
resources with which to prepare an argument (there is no transcript
of a trial because by entering a guilty plea—the defendant elected
to forgo trial).
The only record left may be that from the arraignment or a similar
pretrial proceeding, making it is very difficult to succeed with a
direct appeal of a guilty plea.