Has Excessive Use of Plea Bargaining Undermined the Constitutional Right to Trial?

No it has not. It does have significant downsides, but the amount of crime leaves us no realistic choice.

I probably need to give notice that this is going to be a long post and will likely be of interest mostly, or perhaps only, to those who follow debates about issues in American criminal justice. For those readers, however, it’s an important topic. About 95% of criminal cases in this country are resolved, not by trials, but by plea bargains. To examine plea bargaining is thus, for most practical purposes, to examine how criminal justice in America actually works.

The criticisms of plea bargaining that have the public megaphone are — you will be shocked to hear — the ones sponsored by the Left: That it’s a tool of steely-eyed prosecutors to run up the score of “mass incarceration;” that it’s only a mildly disguised form of coercion; that it routinely ensnares the innocent; and (what else?) that its defects disproportionately burden minorities.

My own problems with it are different: That it lets criminals off with lighter (and often much lighter) sentences than they would have received after a trial, and that in the course of reaching a plea deal, the government frequently drops charges it could easily prove. Plea bargaining is also  conceptually discomfiting, at least from my textualist point of view, given the Constitution's explicit preference for trials.   Still, as the courts have uniformly and for good reason concluded, it is, in the
practical world we are unlikely to escape, a functional
and regrettably necessary means of managing criminal cases.  

There are two main reasons we resolve almost all criminal charges through
negotiation, neither of which gets much discussion in the MSM’s coverage. The first is this:  We have so much plea bargaining because we have so much crime  --  millions and millions of serious crimes committed every year, see these statistics.  The second and related reason is that we live in a world of scarcity, and in adjudication as
in everything else, scarcity pushes the system toward compromise.  In other
words, we reach settlements in criminal cases almost all the time
for the same reason we reach settlements in civil cases almost all
the time  --  that is, at significant cost savings, each side gets something it values, and values more highly than what it understands it would probably get by going to trial.

It’s true, as noted, that plea bargaining has all but taken over the
system.  But there's a caveat. While the very large extent of
bargaining is relatively recent, plea bargains have considerably
outnumbered trials for decades  --  for virtually all of the post-
Warren Court era of criminal procedure.

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

Sixty years ago, at the dawn of the 1960’s, our country had an
amount of crime we would now consider quaint  --  about three
and a half million serious crimes a year, id.  Through the Sixties,
Seventies and Eighties, crime had metastatic growth in the United
States.  By 1991, we had more than four times that number  --
almost fifteen million serious crimes.

When your country has been the victim of a 30 year-long crime
spree, and serious crime has increased by close to 400%  --  and
simultaneously, criminal procedure has become more complex
and demanding  --  the old ways of dealing with it are not going to
work as they once did.

To put it in one sentence:  With only finite resources available to
the criminal justice system, and that system's need to compete for resources with a massively growing list of other government services, an increase in plea bargaining  was forced on us by a gigantic increase in the number of criminal
cases.

Contrary to what the Left (and some libertarians) tell us, however, the defendant's bedrock constitutional rights have not been kicked aside in the shift.  This
becomes clear when we recall a number of key facts  --  facts
often forgotten in the hue and cry.

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

Second, it remains true, now as then, that every defendant has
the absolute right to demand a trial.  If he makes that demand, he
will get a trial, period.  There is no case in which he cannot tell the prosecutor to take his proposed bargain and put it in a warm area.

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

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

A while back, a recently retired  state judge
called me to discuss his experience with plea
bargaining.  He told me something I hadn’t heard in my 25
years in the federal courts.  When the prosecutor's office was
slow to come up with an offer for a deal, he said, defense counsel
would ask him privately to  nudge the Assistant DA along so the
case could  --  please!  --  be disposed of at a nice discount and
without a trial.

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

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

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

For our purposes, perhaps the two most important
guarantees in Rule 11 are these:

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

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

Now let's consider how those guarantees square with the outraged claim
that defendants routinely plead guilty, and are sent to
prison, for things they didn't do.  In that regard, it's helpful to know
the specifics of what the factual basis for a plea means on the
ground — a ground where my feet were planted for a couple of decades. 

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

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

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

It’s sometimes said that the Rule 11 hearing is merely a pro
forma event during which both sides just go through the
motions.  For those who think that, I have an invitation:  Go to a
plea hearing and see for yourself.  See for yourself whether the
judge has a sleepy disinterest in whether the defendant he's
about to send to prison is guilty or innocent.  See for yourself
whether the prosecutor is so  steeped in dishonesty, and so
lacking in basic decency, that he will condemn an innocent man
simply to put another scalp on the mantle.  See for yourself
whether the defendant's lawyer is so oblivious, callous and
corrupted and that he plays a central part in the charade, knowing
it's all made up.  And see for yourself whether all three are
cooperating with one another with winks and nods in what in any
other context would be called a conspiracy.

Now maybe that is what you'll see.  But in 25 years inside the
system, it’s not what I saw.

In sum, plea bargaining, while plainly less desirable than trials from any perspective you occupy, is --  given the protections that surround it  --  an adequate
alternative, and one that became inevitable when our country,
over roughly the last third of the 20th Century, faced an
unprecedented explosion of crime.

********************************************************************************    

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

First,  prosecutors should share exculpatory information at the
plea bargaining stage even though the Constitution does not
require it (see United States v. Ruiz, 536 U.S. 622 (2002)). Indeed, prosecutors should adopt an open file policy.  This is not because it will help defendants.  It's because
prosecutors need to be faithful to the standard that should be at the center of their work: that the criminal justice system is not a game with moves; it's a search for
the truth.

Second, prosecutors should not make the first move toward a
plea bargain.  The first move should come from the defense or not
at all.  This will put to rest the corrosive and false belief that
bargaining is nothing but a cudgel of the carceral state.

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