Would Regulated Plea Bargaining Be Better?

At Sentencing Law and Policy, Doug Berman notes yet another academic arguing how the dreaded plea bargaining should be changed. Georgia State prawf Russell Covey’s law review article, Toward a More Comprehensive Plea Bargaining Regulatory Regime, which he argues addresses the harmful effects of unregulated plea bargaining.

America’s plea-bargaining system is famously informal. While there is a smattering of state and federal regulation of guilty pleas, the practice of plea-bargaining itself remains almost entirely untouched by law. Because plea bargaining is the mechanism by which the vast majority of criminal convictions are secured — upwards of 95% by most estimates — this means that almost all criminal convictions are the product of an essentially unregulated, and in many ways entirely lawless, process. There is an increasing awareness of the harmful effects of an unregulated plea bargaining system and the ways that this lack of regulation enables highly coercive practices that effectively deprive most criminal defendants of their constitutional right to trial. The corrosive effect of plea-bargaining’s dominance is unmistakable and the continuing lack of meaningful regulation of it threatens the basic integrity of the criminal legal system.

Is there “increasing awareness”? Every once in a while, someone proposes formalizing plea bargaining, usually due to a case or type of cases where, he believes, it would have been beneficial and prevented an injustice. But to characterize it as “corrosive” and assume it to be “unmistakable” begs the question.

This Article argues that it is imperative that policymakers take this threat seriously and urges them to take steps to impose real regulation on the plea-bargaining practice. The Article identifies several reforms that might be taken. These include requiring all plea offers to be in writing and filed in court, standardizing the timing and content of plea agreements, limiting the kinds of rights that criminal defendants can be required to waive in order to obtain a plea agreement, and shifting sentencing hearings from post-trial to pre-trial to ensure that defendants are aware of the consequences of their plea decisions.

The issue of “limiting the kinds of rights that . . . can be required to be waived” has become a matter of concern. In federal courts, pleas not commonly include waiving appeal, which at least makes some sense given that it’s a plea, and occasionally certain district also include waiving ineffective assistance of counsel claims, which makes no sense since the defendant would be left with no counsel other than the ineffective one. If the ineffective criminal defense lawyer counsels the defendant to cop the plea, how would the defendant be capable of appreciating that he’s being told to by the ineffective lawyer to waive his ineffectiveness?

Atop that problem, these add-on conditions come with no consideration. The plea bargain provides no special incentive to agree to additional waivers, but is merely the usual plea bargain with ever-increasing givebacks. If plea bargaining is a contract, then there needs to be consideration for not just the plea, but for each additional waiver required.

But the rest of the regulatory regime suggested involves very different concerns. In most ordinary state court cases, the deal is pretty straightforward, A term of years for a reduced charge. No writing is needed to make it clear. As for the judge becoming part of the plea bargaining process, filing the written plea offer in court, standardized timing, each has issues that depend on the particular situation.

In the vast majority of cases, they would add more problems to the process and further burden the defendant. No defendant who wants to get out as quickly as possible wants to be told that he has to wait in jail because there are rules “for his protection.” How would a pre-trial sentencing hearing even happen? How would a defendant, after allocuting to the crime, change his mind and go to trial arguing that he didn’t commit the crime to which he just admitted?

The filing requirement would also facilitate creation of meaningful mechanisms to regulate the magnitude of the sentencing differential between plea and trial sentences. This latter goal is critical to ameliorate the highly coercive aspects of present plea bargain practice, since more than any other factor it is the threat of heavy trial penalties that undermine the value of a defendant’s constitutional right to trial. Implementation of these reforms would go a long way toward bringing much needed procedural formality to the informal practice of plea bargaining and would help establish a more rational regulatory system of plea bargaining practice. It is also hoped that these reforms might help reverse the longstanding trend toward ever more vanishing criminal trials.

The primary evil Covey seeks to fix is the trial tax, “the magnitude of the sentencing differential between plea and trial sentences.” There are few, at least on the defense or academic side, who would argue that the extreme excesses of post-trial sentence aren’t a nightmarish problem. If a case is worth a year pre-trial, there is no rational justification for a 20-year sentence after trial. And yet, such disparities are common.

But is regulating plea bargains the solution to the trial tax? The obvious solution is legislative, to reduce the Draconian max sentences available for imposition post-trial, but the counterargument is that they need to be available for the worst defendants and, to those who have yet to realize its sophistry, to deter others from committing crimes. Yet, here we are, regularly seeing defendants who roll the dice and go to trial getting whacked on the back end after rejecting far more reasonable offers before.

Whether there is a solution to this problem remains a mystery. Many pump one fix or another, arguing that they’ve found the magic bullet that will reduce, if not eliminate, the dreaded trial tax. Perhaps it would, in some instances, but will make things worse in others. Will formalizing plea bargains through regulation be the change that works? If there was some regulatory limit to how harsh the post-trial sentence would be relative to the plea offer, why assume that post-trial sentences would be reduced rather than the time offered by plea increased? And contrary to the assumptions of activists, pundits and academics, very few defendants would benefit from a trial. After all, no amount of hand-wringing makes the evidence disappear or the defendant more capable of testifying in his own defense.


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