CHAPTER 9 PLEA BARGAINING AND GUILTY PLEAS

JurisdictionNorth Carolina

Chapter 9 PLEA BARGAINING AND GUILTY PLEAS

§ 9.01 GUILTY PLEAS: OVERVIEW

[A] Procedural Context

After an accused has been indicted by a grand jury or an information is filed against her by the prosecutor, she must be arraigned on the indictment or information.1 Although procedures vary by jurisdiction, the defendant at a federal arraignment is read the charges, a copy of the indictment or information is provided to her or her counsel, and she is asked to enter a plea to each of the charges.2

The defendant may plead not guilty, nolo contendere,3 or guilty.4 In some jurisdictions, she may also plead not guilty by reason of insanity, a prerequisite in those states to presenting evidence of insanity at the trial. In some states and in the federal courts,5 a defendant may enter a conditional plea of guilty or nolo contendere, upon approval of the court and the consent of the prosecutor. As explained in more detail below,6 a defendant who pleads guilty waives various defects in the proceeding. A conditional plea permits the defendant to appeal a specific issue that otherwise would not survive the plea. If her appeal is successful, she may withdraw her plea of guilty.

[B] Constitutional and Policy Context

Although results vary by locality, by crime, and by year, guilty pleas are secured in an extremely high number of criminal prosecutions. In 2001, of 67,731 federal convictions, 64,402 of them — or just over 95 percent — were the result of guilty pleas or pleas of nolo contendere.7 In state courts in 2000, the same 95 percent of all convictions resulted from guilty pleas.8 The guilty plea process, therefore, is a matter of enormous practical significance and the subject of a number of constitutional and policy controversies.

From a constitutional perspective, a person who pleads guilty relinquishes various rights, including her Fifth Amendment privilege against self-incrimination,9 her due process right to be acquitted unless proven guilty beyond a reasonable doubt,10 and her Sixth Amendment rights to a speedy11 and public trial by an impartial jury,12 to be confronted with the witnesses against her,13 to call witnesses in her own behalf, and to be represented by counsel at trial.14 It is essential, therefore, to determine whether the procedures used to obtain guilty pleas adequately ensure that defendants waive their constitutional rights voluntarily and knowingly, rather than as the result of coercion or ignorance. Furthermore, a defendant must usually rely on her lawyer to represent her in any plea negotiations and to advise her regarding whether to plead guilty. It is essential, therefore, to make sure that she receives her constitutional right to effective assistance of counsel in the plea process.

Constitutional issues aside, the overriding policy question is whether the law should encourage, tolerate, or actively discourage guilty pleas. A problem of unknown magnitude exists that in a system that encourages or condones self-conviction, some innocent persons will plead guilty. In addition, some may object to guilty pleas because there will be some defendants — again an unknown number — who will plead guilty although the evidence would have proven insufficient to achieve conviction, notwithstanding their factual guilt. (Others may consider this latter phenomenon a virtue of guilty pleas.)

Most guilty pleas are the product of plea bargaining, and that practice is itself controversial, not only because the allegations are not resolved through a trial, but also because — as part of the "bargain" — the defendant may plead guilty to a lesser crime or receive a lesser penalty than would have been the case had there been a trial. Indeed, most of the policy debate pertaining to guilty pleas centers on the plea-bargaining process.15

§ 9.02 VALIDITY OF A GUILTY PLEA: CONSTITUTIONAL PRINCIPLES16

[A] Overview

In order to be valid, a guilty plea must meet a number of constitutional safeguards. To begin with, there is the risk that a defendant who pleads guilty — and thereby waives numerous constitutional rights17 — does so as a result of "[i]gnorance, incomprehension, coercion, terror, [improper] inducements, [or] subtle or blatant threats."18 In such circumstances, a defendant's waiver of constitutional rights, and hence her guilty plea, would not be valid. Therefore, the Supreme Court has held that the Due Process Clause requires that the record demonstrate that a guilty plea is both knowing and voluntary.19 These dual requirements of knowledge and voluntariness — the critical issues in assessing the constitutionality of a guilty plea — are discussed in detail in the immediately following subsections.

Secondly, at least in some cases, a guilty plea conflicts with constitutional mandates if it lacks a factual basis.20 This requirement is also considered in a subsection below.

Third, a defendant who intends to plead guilty to a crime for which the Sixth Amendment right to counsel attaches,21 must be represented by counsel or validly waive that right,22 since "[t]he entry of a guilty plea, whether to a misdemeanor or a felony charge, ranks as a 'critical stage' at which the right to counsel adheres."23

Fourth, a criminal defendant may not plead guilty, or waive counsel in order to do so, unless she is mentally competent. Somewhat controversially, however, the Supreme Court ruled in Godinez v. Moran24 that the competency standard for pleading guilty or — and this is the controversial part — for waiving the right to counsel is the same as the standard for competence to stand trial, namely, "whether the defendant has 'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding' and has 'a rational as well as factual understanding of the proceedings against him.' "25 According to Godinez, there is no reason to apply a higher standard than this:

[W]hile the decision to plead guilty is undeniably a profound one, it is no more complicated than the sum total of decisions that a defendant may be called upon to make during the course of a trial. . . . This being so, we can conceive of no basis for demanding a higher level of competence for those defendants who choose to plead guilty. If the [competency to stand trial] standard is adequate for defendants who plead not guilty, it is necessarily adequate for those who plead guilty.26

To say that all of the preceding conditions must be satisfied for a guilty plea to be constitutionally valid is not to say that a defendant has a federal constitutional right to forego a criminal trial by pleading guilty. To the contrary, in North Carolina v. Alford, the Supreme Court stated in dictum that a "criminal defendant does not have an absolute right under the Constitution to have his [constitutionally valid] guilty plea accepted by the court, . . . although the States may by statute or otherwise confer such a right."27 The Alford Court did not indicate what constitutional limits, if any, restrict this judicial discretion to reject a plea.

[B] Voluntariness of the Plea

Due process is violated if a trial judge accepts a coerced guilty plea.28 The Supreme Court has not fully defined "voluntariness" in the guilty plea context. However, it has stated that a guilty plea is not coerced unless it was "induced by threats (or promises to discontinue improper harassment), misrepresentation ... , or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes)."29 It has also repeatedly stated that the voluntariness of a plea must be assessed in view of all of the surrounding circumstances.30

The Supreme Court is hesitant to invalidate guilty pleas on the basis of involuntariness because a strict standard might discourage guilty pleas and the plea bargaining process that usually precedes them, both of which the Court strongly approves.31 As an example of the Court's general desire to uphold guilty pleas against claims of coercion, consider Brady v. United States.32

In 1959, B was prosecuted for kidnapping. At that time the kidnapping statute provided that a defendant could receive the death penalty if, but only if, a jury recommended the sentence. However, apparently because the trial judge was unwilling to try the case without a jury, B could avoid the possibility of a death sentence only by pleading guilty. When B learned that a co-defendant would testify against him at trial, he changed his plea to guilty and was sentenced to a lengthy prison term. Nearly a decade after B's plea, the Supreme Court held in United States v. Jackson33 that the death-penalty portion of the same kidnapping statute was unconstitutional because it placed an impermissible burden on a defendant's right to a jury trial. As a result of Jackson, B sought to vacate his plea. He claimed that he would not have pled guilty but for the statutory threat of death; and, since that threat was constitutionally impermissible (per Jackson), his guilty plea was similarly tainted.

The Brady Court rejected the argument. It stated that there was no evidence that B was so "gripped by fear" that, with the assistance of competent counsel, he could not "rationally weigh" the advantages of trial against the benefits of pleading guilty. The Court saw little difference between B's situation and that of a defendant who is informed by her lawyer that a judge will very likely be more lenient than a jury, or of a defendant who pleads guilty on the basis of her understanding that more serious charges will be dismissed. Indeed, according to the Court, even if avoiding the death penalty was the "but for" cause of the plea, that fact alone would not render the plea involuntary. Such cause is not, according to the Court, the "actual or threatened physical harm or [the] mental coercion overbearing the will of the defendant"34 that would render a plea involuntary.

Again relying in part on the risk of discouraging guilty pleas and plea bargains, the Court...

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