Judges as framers of plea bargaining.

• Author: McConkie, Daniel S.
• Position: Introduction through III. A Proposal for Judges to Frame Plea Bargaining A. The Proposed Procedure, p. 61-89

Introduction I. The Federal Judge's Role in Plea Bargaining A. The Nuts and Bolts of Federal Plea Bargaining B. Rule 11's Prohibition on Judicial Participation in Plea Discussions C. Lafler and Frye Expand the Judge's Role II. Federal Plea Bargaining Operates With Too Little Judicial Oversight, Puts Too Much Power in Prosecutors' Hands, and Is Confusing and Unfair to Defendants A. An Uncertain Plea/Trial Differential is Unduly Coercive, and Judges Do Nothing to Dispel This Uncertainty B. Too Much Prosecutorial and Not Enough Judicial Discretion C. Defense Attorney Disadvantages . D. Because Plea Bargaining Is Not On The Record, the Results Lack Public Transparency, Consistency, and Thoroughness E. Presentence Reports Are Not Being Used Sufficiently III. A Proposal For Judges to Frame Plea Bargaining A. The Proposed Procedure B. How to Determine an Appropriate Plea/Trial Differential 1. Optimal Number of Guilty Pleas 2. Strength of the Prosecution's Case 3. Potentially Undue Coercion C. When A Court May Exceed Its Own Indicated Sentences D. Considering Ex Parte Information E. No Need for the Judge to Recuse If the Defendant Goes to Trial IV. Implications of My Proposal A. Let Judges Judge B. Consistent with Rule 11's Prohibition on Judicial Participation in Plea Discussions C. Provides Defendants Greater Certainty and Better Assistance of Counsel D. Benefits to Prosecutors and Crime Victims E. Possible Objections 1. Litigation Costs 2. Presumption of Innocence 3. Leaves Prosecutorial Discretion Intact 4. Length of Proceedings Conclusion Introduction

In the federal system, the vast majority--about ninety-seven percent--of federal criminal defendants plead guilty, giving up their constitutional right to a jury trial in exchange for sentencing concessions. (1) Unfortunately, federal plea bargaining happens with little judicial involvement--between prosecutors and defense attorneys, behind closed doors and with practically no public oversight. This secretive procedure leaves the adjudication of criminal cases to attorneys, not the courts. Recently, the Supreme Court acknowledged that our justice system is "a system of pleas, not a system of trials." (2) We must conform federal criminal procedure to this reality, and that will require bringing more of the plea bargaining process back into the courtroom where it belongs. (3)

The plea bargaining process is initially framed by prosecutors' charging decisions. By selecting the charges, prosecutors strongly influence the sentence. This is so even where mandatory minimum sentences are not implicated because the advisory Federal Sentencing Guidelines are influential in plea bargaining and sentencing. Soon after indictment, the parties begin their plea discussions. These discussions are informal and out of court. The defense makes its best pitch to the prosecution but has imperfect incentives to fully investigate the case or to make a full presentation of all relevant issues. The parties make their best guess as to the likelihood of a conviction by jury, the court's likely resolution of key sentencing issues, and the expected difference between a post-plea sentence and a post-trial sentence ("plea/trial differential"). Defendants decide to forego their constitutional rights and plead guilty based on these guesses. Put simply, defendants decide to plead guilty out of fear: they do not want to risk a much more severe post-trial sentence than the more concrete expected sentence that they will get for pleading guilty. On this basis, the parties ultimately strike their deal and present it to the court for approval. Then, for the first time, at what is likely near the end of the case, the court becomes significantly involved in the plea bargaining process.

One reason why judges do not usually reject the deals (4) is because they often have little information about the case beyond what is stated in the indictment. Frequently, they accept the guilty plea provisionally, pending their examination of the presentence report for sentencing. That report should guide the court in considering the numerous statutory factors that are meant to make sentencing rational and consistent. But the parties usually contribute to that report's preparation with a more practical aim: to buttress the plea agreement. Paradoxically, the plea agreement tends to shape the presentence report. Even if it does not, by the time of sentencing, the parties already have a reliance interest in their bargain. Thus, the defendant is usually sentenced consistent with the plea agreement, and the whole process of preparing the presentence report after the deal has been struck becomes an empty formality. (5) Judges have a strong incentive not to reject the parties' deal because doing so would send them back to the bargaining table, thereby prolonging the case and risking a jury trial.

One of plea bargaining's key infirmities is that it largely excludes judges until the tail end of the process. This is unfortunate for many reasons. Judges are institutionally more neutral and less political than prosecutors are. Article III judges can exert an important check on the Executive Branch's law enforcement activities. Plea bargaining discussions are conducted largely on the basis of what the parties believe judges would do at sentencing, but judges have no early opportunity to dispel them of any misconceptions. Finally, on-the-record plea proceedings early in the case would encourage the parties to develop sentencing issues more thoroughly and publicly.

This Article examines these and other infirmities of federal plea bargaining and proposes giving judges a more central role in the process. Of course, there is a limit to how much an enhanced judicial role can accomplish. As long as prosecutors have wide discretion in selecting charges, they will likely dominate plea bargaining. But my proposal--a thought experiment, really--shows how enhanced judicial involvement could change prosecutors' incentives by bringing plea bargaining into the light of the courtroom. That, in turn, could make plea bargaining more fair and transparent to both defendants and the public and more effective in arriving at just and reasonable sentences. This Article makes a novel contribution to the plea bargaining literature by reconceptualizing the judge's role in plea bargaining and fleshing out and modifying some skeletal proposed reforms from the 1970s (6) in light of legal developments over the last four decades. The older proposals would abrogate prosecutorial discretion and make the plea/trial differential uniform across all cases. Although conceptually elegant, these proposals are politically infeasible. My proposal is more modest, but letting judges frame the issues early in the case through a public proceeding would work a fundamental reform to plea bargaining.

The Supreme Court recently took an important step toward encouraging more judicial involvement in plea bargaining in a pair of 2012 decisions, Lafler v. Cooper (7) and Missouri v. Frye. (8) These cases strengthened defendants' protections against ineffective assistance of plea bargaining counsel, but they also considered how defendants might prove that their attorneys' ineffective assistance had prejudiced them. This has encouraged judges to make some record of the parties' plea discussions. The parties in turn must conduct their negotiations differently, knowing that the negotiations could become the subject of public litigation. Thus, Lafler and Frye have effectively invited judges to exert a greater influence in plea bargaining.

This Article proceeds as follows: In Part II, I briefly describe the federal judge's role in plea bargaining. Part III critiques plea bargaining. In Part IV, I put forward my proposal to reform it, and Part V considers the implications of this proposal.

I propose letting defendants request from the court, early in the case, two indicated sentences: one for a guilty plea and another for a post-trial sentence (the difference between these two sentences is called the "plea/trial differential"). The parties would engage in litigation similar to a sentencing proceeding, with the help of a pre-plea presentence report, to systematically explore the key sentencing issues.

My approach is novel because it would permit the court, in determining the two indicated sentences, to consider case-specific factors, such as the size of plea/trial differential necessary for the court to process its caseload, the strength of the prosecutor's case and likelihood of conviction at trial, and the potential undue coerciveness of the plea/trial differential where the prosecutor's case is weak. Using these case-specific factors yields two benefits that are novel to the literature on plea bargaining reform. First, the approach is pragmatic because it would merely ask the sentencing court to make explicit the analysis that it already employs implicitly. Second, it could mitigate any undue coercion in a guilty plea because the court could sufficiently familiarize itself with the prosecution's case to discern whether the government was offering a steep discount off of a potentially draconian post-trial sentence to compensate for the weakness of its case.

This proposal has other significant advantages. It would allow judges to supervise an adversarial procedural that would help frame the parties' subsequent plea negotiations with better information about the factual and legal contours of the case and the potential sentencing consequences. It would take place on the record, improving the transparency and legitimacy of the justice system. In seeking to provide defendants with better information as they make the most important decision in the case, it would comport with Padilla v. Kentucky, in which the Supreme Court required that defendants be advised of the risk of deportation before pleading guilty. (9) Finally, in describing significant yet achievable changes to criminal...