Judges as framers of plea bargaining.

• Author: McConkie, Daniel S.
• Position: III. A Proposal for Judges to Frame Plea Bargaining B. How to Determine an Appropriate Plea/Trial Differential through Conclusion, with footnotes, p. 90-117

2. How to Determine an Appropriate Plea/Trial Differential

   The court's first indicated sentence would be the sentence to be given on a plea, based on standard sentencing considerations. (152) In this Part, I discuss the court's second indicated sentence, which would equal the first plus a "plea/trial differential." Rightly or wrongly, this differential is a key and durable feature of our system of pleas.

   Federal courts already impose longer sentences for defendants who exercise their right to trial. (153) Indeed, the acceptance of responsibility reduction institutionalizes this practice. (154) However, under our advisory Sentencing Guidelines regime, judges and prosecutors can and do tailor the plea/trial differential to the facts and circumstances of each case. Although many commentators have called for a uniform differential for all cases, (155) those recommendations go against a strong ideal in criminal justice to treat cases individually. Even where Sentencing Guidelines promote uniformity and there are mountains of cases that need to be processed, the system eschews binding formulas. Plea bargaining prosecutors tailor the differential by threatening stiffer charges and greater post-trial sentences according to the facts of the case before them. Likewise, judges who sentence after trial tailor their sentences according to the facts and circumstances of the case. (156) My proposal is unique in seeking to make the plea/trial differential more rational, consistent, and transparent, while still tailoring it to the facts of each case. (157)

   In calculating a plea/trial differential, the court could consider at least the following factors: the optimal number of guilty pleas for that courthouse, based on its caseload; the strength of the prosecution's case; and whether the differential is unduly coercive in a given case.

   1. Optimal Number of Guilty Pleas

   First, given the local caseload, a judge could determine the average length of the plea/trial differential sufficiently large to incentivize an "administratively acceptable" number of guilty pleas. (158) Judges should consider the caseload in their courthouse and available resources to try cases. In jurisdictions with heavier dockets, fewer jury trials are possible and a higher plea/trial differential is generally needed to exact sufficient guilty pleas to process the caseload. (159) I propose that judges make this baseline explicit on the record. (160)Although in an ideal world a defendant would not be disadvantaged for going to trial in a district with crowded dockets, my proposal would at least promote uniformity within the same courthouse or district. Of course, judges who do not intend to penalize defendants for the misfortune of being prosecuted in less-busy jurisdictions can simply put that fact on the record. To tailor the differential, judges would want to consider not only their caseload generally but also the resources that would be required to try the case at hand. Factors bearing on this decision would include the expected length of the trial, complexities in selecting a jury, the number of witnesses, enhanced security measures, and the need for court interpreters.

   2. Strength of the Prosecution's Case

   Second, judges should consider the strength of the prosecution's case in indicating a plea/trial differential. Prosecutors already do this because such individualized calibration is necessary to encourage enough defendants to plead guilty. To illustrate, consider two similarly situated federal defendants charged with the same crime. (161) The first defendant faces a near-certain chance of conviction at trial and the other faces only a seventy percent chance. If they both get the same offer from the prosecution of a thirty-five percent sentencing "discount" (from the post-trial perspective), the first defendant will jump at the offer, but the second will reject it, knowing that the prosecutor will be reluctant to dedicate substantial resources to trying such a close case. (162) Accordingly, the prosecutor will have to give a larger discount to incentivize the second guilty plea, and the court should assist in the determination of the size of that discount.

   Federal judges already have precedent that could guide their determination of the strength of the prosecutor's case. The Bail Reform Act, which governs bail decisions in federal court, requires judges to consider this factor in making bail decisions. (163) The procedure for bail review hearings is similar to sentencing procedure and therefore instructive in how to determine the strength of the prosecution's case in a motion for indicated sentences. The bail review hearing is a "full-blown adversary hearing" (164) at which the defendant has the right to an attorney, "to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise." (165) The rules of trial evidence do not apply at the hearing. (166) The district court has discretion to take evidence by live testimony or proffer. (167) The district court may limit any live testimony on grounds of relevance or to prevent a pre-trial detention hearing from becoming a full-blown trial. (168) In short, the Bail Reform Act provides good precedent for how to provide adequate due process to litigate the strength of the prosecution's case. (169)

   Several objections could be made to this portion of my proposal. For example, it could be argued that calibrating the plea/trial differential to the strength of the prosecution's case would tempt the defendants who are most likely factually innocent with the best offers. (170) While this may be true, this complaint overlooks the real issue: innocent defendants getting charged in the first place. Assuming that the prosecution's case against an innocent defendant appears strong enough to convince twelve jurors beyond a reasonable doubt, that defendant would probably prefer to at least have the option of cutting his losses. Furthermore, my proposal would familiarize the judge with the facts of the case far beyond what could be learned from the spare factual basis underlying most plea agreements. That factual basis is a factor in determining the voluntariness of the plea by making sure that the defendant's factual admissions constitute the crime to which he is pleading guilty. (171) Armed with that knowledge, a judge would be in a much better position to decide if the prosecutor's case was so weak that accepting a guilty plea would be unconscionable. In that case, the judge could refuse to accept the guilty plea. (172)

   Additionally, it could be objected that litigating the strength of the prosecutor's case would not be easy. Prosecutors would have an incentive to exaggerate the strength of their case to force the plea. They might possess information not discoverable to the defendant that bears on the likelihood of acquittal. For example, the prosecutor may be aware that a particular law enforcement witness writes excellent reports but is nervous and impatient on the witness stand. Likewise, defense attorneys would have every incentive to downplay the prosecution's case. Although the court cannot perfectly gauge the strength of the prosecution's case, the court's supervision of this procedure is likely to yield a better estimate of the strength of the case than informal discussions between the parties.

   Finally, it could be objected that considering the strength of the prosecution's case in plea bargaining would tend to defeat sentencing uniformity. (173) Suppose that persons A and B, having similar backgrounds and individual characteristics, conspire together to commit a crime. Suppose that the government has a strong case against A and a weak case against B. (174) Ideally, A and B would receive similar sentences to avoid "unwarranted sentence disparities." (175) But under my proposal, B will likely get a shorter sentence through sheer luck. This result is troubling but no worse than the status quo: nobody gets sentenced unless convicted, and convictions are easier to get when the evidence is strong.

   Thus, my proposal recognizes that plea bargaining is informed by the strength of the prosecution's case. There are principled objections to this state of affairs, but the hard reality is that defendants plead guilty as a function of the strength of the case against them. (176) By allowing a neutral arbiter to determine the strength of the prosecution's case, my proposal would provide more accurate incentives for guilty pleas and encourage consistency and transparency in the plea/trial differential.

   3. Potentially Undue Coercion

   The third and last consideration in determining the plea/trial differential is whether the differential is unduly coercive to a particular defendant. Coercion is inherent to any criminal justice system, but we must ask how much and what kind of coercion is acceptable. The plea/trial differential should not unduly pressure a defendant having a defense that is reasonably likely to succeed into pleading guilty. (177) But the coercion inherent in the plea/trial differential may be mitigated by the advice of competent counsel and a "full opportunity to assess the advantages and disadvantages of a trial as compared with those attending a plea of guilty." (178) In other words, by reducing the unnecessary coercion of uncertainty, we can reduce the coercion of the plea/trial differential itself.

   The motion for indicated sentences provides just that by giving the defense reliable guidance as to the likely sentencing consequences that the defendant faces. The court, having familiarized itself with the strength of the prosecution's case, should not accept a guilty plea if there is a "hazard of an impulsive and improvident response to a seeming but unreal advantage." (179) The judge should be careful to consider any exculpatory evidence and weaknesses in the prosecution's case. If the judge sees a high chance of acquittal, she...