Guilt, innocence, and due process of plea bargaining.

• Author: Dripps, Donald A.
• Position: II. Plea Bargaining as Torture B. The Baseline Problem: Plea Deals as Coerced Confessions through Conclusion, with footnotes, p. 1369-1393 - Plea Bargaining Regulation: The Next Criminal Procedure Frontier

2. The Baseline Problem: Plea Deals as Coerced Confessions

   If we consult the philosophical literature on coercion, we may sympathize with the evasive nature of the jurisprudence. (101) The standard modern view emerged only with Alan Wertheimer's Coercion in 1987. (102) On that view, "coercion" refers to threats (in a technical sense) that would induce compliance from any reasonable person. (103) Wertheimer distinguishes threats from offers by whether the inducer's proposal makes the inducee worse off rather than better off. (104) Wertheimer then posits a moralized or normative baseline for determining worse or better off. (105) Only if the inducer acts wrongly does he threaten, rather than make an offer to, the inducee. (106) If the threat would overcome the will of a reasonable person, it is coercive. (107)

   Wertheimer devoted a chapter to plea bargaining, concluding that plea bargaining is not coercive because the prosecutor has a right to bring either set of charges. (108) It follows that the prosecutor's proposal is an offer, not a threat. Abusive interrogation methods, by contrast, violate the legal and moral duties of the interrogators. Only threats can coerce, so plea bargaining is not coercive. The Supreme Court's plea bargaining cases, reviewed in the next Part, are not inconsistent with this view and are widely seen to support it. (109) So this account of plea bargains as noncoercive offers is the standard view.

   The standard view is plausible, but in my view mistaken, for two reasons. First, the standard view is, from a moral perspective, myopic. It focuses on the prosecutor's right to bring any charge supported by the evidence. What, however, about the rights of the defendant? Second, the standard view is circular. It rejects a constitutional challenge to prosecutorial discretion by stipulating the legality of prosecutorial discretion.

   1. The Standard View is Myopic

      The standard view is distinctly one-sided. Assuming the prosecutor has a legal right of plenary discretion, it then subordinates the defendant's rights to the tactical exercise of that discretion. It would be a mistake, however, to set the baseline of coercion as any set of charges the prosecutor has probable cause to prefer. In the first place, the prosecutorial office includes authority to decline to prosecute in some cases in which probable cause is manifest, as in an assault case supported by one side in a swearing contest. The ABA Standards for the Prosecution Function set out an illustrative list of seven different scenarios in which not prosecuting at all may be appropriate, despite the presence of probable cause. (110) Even when the prosecutor decides to go forward, "[t]he prosecutor should not bring or seek charges greater in number of degree than can reasonably be supported with evidence at trial or than are necessary to fairly reflect the gravity of the offense." (111)

      Justice Powell's dissent in Bordenkircher v. Hayes took an approach similar to the ABA Standards' approach that charges ought to "fairly reflect the gravity of the offense." (112) Justice Powell thought "that the question to be asked under the circumstances is whether the prosecutor reasonably might have charged respondent under the Habitual Criminal Act in the first place." (113) Justice Powell, however, perhaps mindful of the difficulties in applying the totality of the circumstances test in the confessions cases, quickly added that deference to prosecutorial discretion would require treating tactically-motivated overcharging ex ante as "largely unreviewable." (114) Powell's fellow dissenters, Brennan and Marshall, who joined Blackmun's dissent, saw the same problem. (115) The prospect of, in effect, applying the confession cases' totality of the circumstances template to the enormous majority of cases disposed of by guilty pleas should rightly give us pause.

      However, within the due process test is a narrower and more determinate baseline. The accused has no right to one set of charges or another, but he does have a right to a reliable adjudication of guilt. Wertheimer acknowledges that although plea bargaining may not be coercive on his account, it may be nevertheless "morally indefensible" because it "may convict too many innocent persons." (116) Arguably, the innocent person should be the one to choose between the alternatives of plea and trial on terms set by the prosecutor. A defendant might say, however, in substance, "I'm innocent, and I want to stand trial but not at the risk of this Kafkaesque trial penalty." The standard view is blind to the possibility of third options.

   2. The Standard View is Circular

      The standard view has another problem. From a legal perspective, the standard view is circular. Where is it written down that the prosecutor can bring any charge the evidence supports for the purpose of discouraging trials? (117) And even if there were a statutory authorization, the issue here is whether the trial penalty violates the Constitution's Due Process Clause. We cannot answer the issue under the higher law according to a baseline set by inferior law.

      To be concrete, suppose in Brown that a state statute authorized police officers to flog suspects during interrogation. (118) If Mississippi law authorized the flogging of suspects, flogging suspects would not be coercive in Mississippi because, relative to a baseline that permits flogging, the suspects are not made worse off. To say that the prosecutor has a right to bring any charge supported by the evidence is to assert a parallel conclusion.

      Nor would it help for the statute to provide a right to counsel during flogging. Suppose that, pursuant to such a statute, Deputy Dial is whipping suspect Ed Brown in the Kemper County jail--but in the presence of an appointed lawyer. The lawyer gives very professional advice: "Ed, everybody eventually breaks, so just tell them whatever they want, and we'll move to suppress before trial." Does the presence of counsel then mean that the suppression motion loses?

      In the context of both plea bargains and interrogations, the baseline problem poses obvious problems. We cannot use subconstitutional positive law as the baseline because that would be circular. But what baseline should we use? The confessions cases were notoriously vague. Implicit in the coerced confession cases was a baseline determination that an arrest followed by hours of secret questioning imposed a morally permissible degree of behavioral pressure but that any significant additional quantum of pressur--as by beatings, sleep deprivation, or involuntary drugging--crossed the line. (119) The narrowest understanding of the confessions test treated coerced confessions as unconstitutional because they are unreliable. (120) Perhaps we can transpose that version of the confessions test to the plea bargaining context.

   3. The Innocence Baseline

      The accused may have no legal or moral right against a charge on the high side of the range, but he does have a legal and moral right to a factually reliable adjudication of guilt. The Brown Court condemned the flogging as "revolting to the sense of justice" and a "clear denial of due process." (121) But Chief Justice Hughes also pointedly analogized coerced confessions to mob-dominated kangaroo courts, knowing use of police perjury, and constructive denial of counsel--practices that are offensive primarily, if not solely, because they risk miscarriages of justice. (122) And the Brown opinion carefully condemned not flogging in the abstract but quite precisely condemned basing convictions on admissions so obtained. (123)

      From the perspective of procedural rather than substantive due process, the issue is not whether the prosecutor has a right to seek a conviction on the higher charges. The issue is whether the gap between the plea and the trial outcomes is wide enough to undermine the reliability of any plea so induced. Procedural due process imposes no restraint on a prosecutor seeking a maximum sentence in a no-offer case other than the requirement of winning a conviction at a fair trial before the court imposes a sentence. A trial penalty great enough to induce a rational innocent person to plead guilty is quite different.

      Reorienting our thinking about plea bargaining in terms of guilt and innocence raises further questions. When can particular plea deals be characterized as coercive in the technical sense suggested here? That in turn looks not only to the facial difference between the sentence likely on a plea and on a conviction after trial but also to the confidence we have in the trial acquitting the factually innocent, a matter on which we have a great deal of data from the DNA exonerations. Then, assuming we have a functional model of a coercive plea deal, how can the claim of coercion be raised when the evil to be remedied is precisely that the defendant (whether guilty or innocent) rationally wants the deal compared to the prosecutor's terms for a potential trial? Before we take up the complications posed by the proposed doctrinal turn, let us first consider the prevailing view that any such turn is blocked by precedent--to wit, Brady v. United States and Bordenkircher v. Hayes.

      3. BLOCKED BY PRECEDENT?

      The Supreme Court did not consider cases raising issues about plea bargaining until the 1970s. These early cases are widely cited for the proposition that the prosecutor may add or subtract any charge supported by the evidence as an incentive to plead guilty. This Part closely examines those cases and finds that they stand for no such sweeping proposition.

1. The No Jury, No Death Trilogy: Brady, Parker, and Alford

   In Brady v. United States, Brady and an alleged accomplice were indicted in 1959 for violating the Federal Kidnapping Act. (124) That Act, sometimes referred to as the Lindbergh Act, included 18 U.S.C. [section] 1201(a):

   Whoever knowingly transports in interstate ... commerce, any person who has been unlawfully ... kidnaped...