Guilt, innocence, and due process of plea bargaining.

• Author: Dripps, Donald A.
• Position: Introduction through II. Plea Bargaining as Torture A. The Due Process Doctrine Prohibiting Coerced Confessions, p. 1343-1369 - Plea Bargaining Regulation: The Next Criminal Procedure Frontier

Preview: Long Weekend

Begin with a melodramatic but illuminating thought experiment: Suppose in some future dystopia you have the bad luck to be selected for a twisted game show titled "What's Your Call?" In "What's Your Call?" the contestant's loved ones are suspended over a vat of boiling oil and the sadistic emcee offers the hapless contestant a Sophie's-like choice between dreadful alternatives. If the contestant does not make the call in sixty seconds, the emcee pushes a button, and the family falls to a horrible death before the eyes of the contestant and of the television audience.

In your case, the emcee says: "Say, friend, you look a little stressed! That's understandable, under the circumstances. What you need is a little R&R. So we'll give you a choice between a long weekend and a long vacation."

"For your long weekend, we've reserved space at beautiful, scenic Guantanamo Bay where you'll be subjected to seventy-two hours of enhanced interrogation. Yes, you'll experience the whole spectrum of modern techniques: Sleep deprivation! Simulated drowning! Nonmedical rectal rehydration! Don't worry that if you choose the long weekend they'll make you have second thoughts about your choice--they may ask you some questions, but they won't give you any chance to change your mind." You glance at your family and glumly await your alternative.

"If, on the other hand," the emcee continues, "you really need to get away from it all, we can guarantee that you'll never spend another day at the office again. We've reserved a space for you at a typical American penitentiary--for forty years! This will only mean the complete termination of your previous life, an all but complete separation from friends and family, and a dreary monotony enlivened only by pruno on holidays, the occasional brutality of the staff, and a regular schedule of sexual assault by your colleagues."

"So, you've got a choice: the long weekend or the long vacation." The emcee pauses for dramatic effect, then hits the button that starts the giant sixty-second stopwatch. Dramatic music leads up to the emcee's standard tagline: "WHAT'S YOUR CALL?"

The point of the thought experiment is not the difficulty of the choice. Every person to whom I have presented the hypothetical has chosen "long weekend" over "long vacation." Torture and prison are both bad, but even accounting for posttraumatic stress disorder and deeply discounting the back end of "long vacation," there is no real question here. So, what is the point?

I assert with great confidence that no civilian criminal court in the United States would admit a confession obtained during "long weekend," even in a prosecution for aggravated murder. (1) With only a little less confidence I assert that no civilian criminal court in the United States would reject a guilty plea obtained to avoid "long vacation." (2) But if our intuitions about "long weekend" being less dreadful than "long vacation" are to be trusted, this seems backwards. The threat of forty-years imprisonment has more power to induce cooperation than seventy-two hours of torment. So unless there is some normative distinction between a confession and a guilty plea, settled, workaday constitutional doctrine contradicts itself. (3)

Either confessions obtained by torture should be admitted or guilty pleas induced by threats that are worse than torture should be forbidden. We--as a legal system and as a society--are not prepared to countenance torture in ordinary criminal cases. The only logical alternative is to reconsider the constitutionality of catastrophic plea consequences.

TABLE OF CONTENTS

INTRODUCTION I. CONTEXT A. The "Steroid Era" in U.S. Criminal Justice B. Modern Plea "Bargaining" C. Two Practical Problems: Coercing the Innocent and Excessive Punishment 1. Overpunishment 2. Coercion of the Innocent II. PLEA BARGAINING AS TORTURE A. The Due Process Doctrine Prohibiting Coerced Confessions B. The Baseline Problem: Plea Deals as Coerced Confessions 1. The Standard View is Myopic 2. The Standard View is Circular 3. The Innocence Baseline III. BLOCKED BY PRECEDENT? A. The No Jury, No Death Trilogy: Brady, Parker, and Alford B. Bordenkircher v. Hayes C. Summary of the Legal Argument IV. DEFENSE TRIAL OFFERS A. The Initial Showing of Coercion B. Trial Offers C. Prosecution Responses CONCLUSION INTRODUCTION

I make four related claims. First, I claim descriptively that since the adoption of sentencing guidelines and mandatory minimum sentences, prosecutorial charging decisions have become practically dispositive of most criminal justice adjudications. Second, I identify two normative problems with prosecutorial dominance: the system inflicts too much punishment on the guilty, and it creates incentives that induce rational innocent people to plead guilty. Third, I lodge a legal claim: plea incentives that would make an innocent person likely to plead guilty violate due process, both on principle and as applied in the long line of the Supreme Court's coerced-confession cases. Fourth, I propose a remedial structure--the defense plea offer--that offers one image of what practical reform might look like.

Part I traces how the 1980s system of, roughly speaking, four pleas to every trial conviction devolved into the current system of nineteen pleas to every trial. Legislatures chose to make huge investments in policing and corrections while economizing on the due process component of meaningful hearings as gatekeepers between the policing and the corrections. These developments set the stage for my descriptive and normative claims about modern plea bargaining.

Part II turns to legal doctrine. The standard view, both in the Court and in the literature, holds that plea bargaining is not coercive so long as the prosecution proposes sets of charges supported by the evidence. Since the prosecutor has a right to bring either the high set or the low set, the lower set proposed for sentence after a guilty plea is an offer, not a threat, and an offer cannot coerce.

The standard view of plea bargaining is wrong. From a moral point of view, the standard view is myopic. Because it focuses on the two proposals the prosecutor makes, it is blind to both the defendant's rights to trial and to reliable adjudication, and it ignores the dozens of alternative outcomes the prosecutor vetoes. From a legal point of view, the standard view is circular. The constitutional issue is whether plea bargaining can be coercive. To privilege the statutory law authorizing both outcomes proposed by the prosecutor is to give the statutory law priority over the constitutional law.

To analyze the idea of a coercive plea bargain, the correct baseline is not the framework of substantive but discretionary liabilities set up by our superficially prolix and draconian penal codes. The baseline should be set by the rights of an accused presumed to be innocent in a modern context in which empirical evidence suggests that presumption is at best imperfectly protected by the processes of police investigation and prosecutorial screening. From that baseline, current law tolerates what seems to be increasingly common: plea offers that are functionally coercive.

Assessing trial penalties under the Self-Incrimination Clause is problematic because the clause provides no baseline by which to measure compulsion. Due process is another matter. The Supreme Court's coerced confession cases have survived independently of Miranda. (4) The narrowest understanding of the coerced-confession doctrine is that police pressures that might cause a false confession violate due process. Yet, the pressures brought to bear by modern prosecutors make the goldfish rooms and arc lights of the 1930s seem nearly trivial by comparison.

The Supreme Court cases thought to distinguish catastrophic trial penalties from coerced confessions involved convictions challenged either long after plea or after trial, rather than immediately prior to pleas under protest. Such cases are distinguishable even if we ignore dramatic changes in the legal ecology, which no thoughtful jurist would ignore.

Part IV picks up the thread by proposing a remedial structure. When the defense is...