Lying at Plea Bargaining

• Publication year: 2022

Lying at Plea Bargaining

Thea Johnson
thea.johnson@rutgers.edu

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LYING AT PLEA BARGAINING

Thea Johnson^*

Abstract

This Article describes the regular use of lying during plea bargaining by criminal justice stakeholders and the paradox it presents for those who care about creating a fairer criminal legal system. The paradox is this: lying at plea bargaining allows defendants the opportunity to negotiate fair resolutions to their cases in the face of a deeply unfair system, even as that lying makes way for—and sustains—the problematic system it seeks to avoid.

The Article lays out a taxonomy of lying at plea bargaining by organizing the types of lies into three categories: lies about facts, lies about law, and lies about process. The criminal justice system produces a litany of injustices. Implicitly authorized, systemic lying offers a means of dealing with these perceived injustices. But lying also obscures the system from public view by hiding and relieving pressure points via plea bargaining.

What seems like the natural solution—to make the system more transparent and less flexible—would likely harm individual defendants. If lying at plea bargaining disappeared tomorrow, many defendants would suffer dire consequences, such as deportation for minor charges or subjection to outrageous mandatory minimum sentences. These defendants would lose their ability to avoid the

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injustices of the system. Yet lying at plea bargaining is the result of a series of interlocking mandatory laws and rules that many stakeholders believe are deeply unfair and should be reformed. Thus, lying at plea bargaining is both a means of avoiding injustice and a force prohibiting meaningful reformation of the laws and rules that produce such injustice. Examining this paradox leads to the conclusion that reform must focus on overhaul, not piecemeal correction. In a system so entangled that lying is the only way to reach a just resolution, solutions that focus simply on producing more transparency or flexibility are unlikely to lead to meaningful transformation.

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CONTENTS

Abstract................................................................................673

Introduction.........................................................................676

I. Trials, Pleas, and Lies.....................................................680

II. A Taxonomy of Lying.....................................................687

A. Lies About Facts........................................................690

1. Fictional Pleas.....................................................691
2. Fact Bargaining...................................................694
3. Guilty Pleas of Innocent Defendants....................696

B. Lies About Law..........................................................700

1. Pleas to Crimes that Do Not Exist........................700

C. Lies About Process....................................................702

1. The Plea Colloquy................................................702
2. Alford Pleas.........................................................706

III. The Paradox of Plea Bargaining...............................709

A. The Benefits of Lying in Individual Cases.................710
B. The Drawbacks of Lying to the System......................714
C. The Paradox of Reform..............................................718

1. The Reformer's Dilemma.....................................720
2. Future Visions for Reform....................................727

Conclusion............................................................................733

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Introduction

In 2017, a defendant was charged in Virginia with transporting marijuana; he eventually pleaded guilty to trafficking a different type of drug, despite the fact that all parties, including the court, agreed he possessed only marijuana.¹ That same year in New York, a defendant faced animal cruelty charges, which through a bit of legal alchemy became a trespass conviction, although the defendant did not, in fact, commit a trespass.² Ten years earlier in Kansas, a court allowed another defendant to plead guilty to attempted second-degree unintentional murder, even while acknowledging that no such crime existed in the statute books.³ In each of these cases, the defendant pleaded guilty on the record to a lie: to a crime he did not commit, to a crime that did not reflect the true nature of his conduct, and even to a crime that did not exist.

But each of these lies also achieved something important for the defendant and the other stakeholders in the plea process. They allowed the parties to resolve the cases in a way that led them to some rough form of justice—a justice that would not be available if the case had been resolved with a plea that did not rely on a lie. The process therefore allowed the parties to sidestep the law without changing the law. Indeed, this is what plea bargaining achieves every day in courtrooms across the country. It provides a mechanism to negotiate around—often unfair—laws. At the same time, it helps keep those laws intact by diverting problems with their impact into the realm of plea bargaining rather than law reform.

This Article explores lying at plea bargaining to tell a story about plea bargaining more broadly. Indeed, the lies described here are plea bargaining, not a secretive adjunct to the process. But the focus on lying centers our attention on the paradox at the heart of plea bargaining: pleas help resolve injustice, while making sure the laws that create such injustice remain unchanged. And the lies that the

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parties tell at plea bargaining serve as the most powerful case study for this paradox.

To demonstrate this paradox, this Article does two things. First, it identifies a taxonomy of lies one sees at plea bargaining. These lies fall into three broad categories: lies about facts, lies about law, and lies about process. Depending on one's perspective, the criminal justice system produces a litany of injustices.⁴ Implicitly authorized, systemic lying⁵ offers a means of dealing with these perceived injustices, and as the taxonomy below demonstrates, lying assists stakeholders in avoiding the results of unfair laws or inequitable outcomes. In many cases, the stakeholders in charge of producing those inequitable outcomes simply work around the system through often invisible lies.

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Thus, untruthful plea bargains allow defendants to avoid sex offender registration, deportation, severe prison sentences, or fines. In some cases, untruthful pleas have even allowed innocent defendants to avoid the death penalty.⁶

Second, this Article explores the paradox that these lies reveal and what they tell us about the prospects of meaningful criminal justice reform. For many defendants, lying offers the only way to escape injustice in their individual cases. Yet such lying makes it impossible to fundamentally improve the broader criminal system, which would make the lies unnecessary in the first place. or put another way, lawyers have created strategies to resolve cases fairly in an unfair system, and these strategies exist because the modern plea process is simultaneously very flexible and not transparent. These strategies obscure how the system would function if it worked as designed, making it difficult or even impossible to transform the unfair laws and policies that lawyers and judges find themselves scrambling to work around.

The taxonomy then leads to a critical finding for criminal justice reformers, local and federal legislators, and a public with a renewed interest in the criminal system. In any given jurisdiction, the scope and size of the current criminal system is profound, characterized by thousands of criminal statutes, numerous sentencing schemes, and a bewildering array of collateral consequences. Although, in theory, these "inputs" should produce a defined set of potential "outputs" (in other words, the charges, sentences, and other penalties that an individual defendant faces), they do not. Instead, as seen in the examples at the start of this Article, the parties involved stretch and bend each individual case until they reach a desired resolution.

This flexibility without boundaries is made possible by the lack of transparency at plea bargaining. Both those working inside the criminal system and those peering in have no real understanding of how this morass of laws would work if plea bargaining did not serve

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as a safety valve for many of its worst features. That said, although efforts to make the system more transparent (and, by extension, less flexible) would result in fewer lies and a better understanding of the system, these efforts would also do tremendous harm to individual defendants. If we imagine lying at plea bargaining disappearing tomorrow, defendants throughout the criminal system would lose their primary means of circumventing the injustices of the system. They would feel real, immediate harm.

Hence, the paradox also presents a reformer's dilemma that pits transparency and truth against flexibility and individualized notions of justice. Lying at plea bargaining continues because it allows defendants the opportunity to negotiate fair resolutions to their cases in the face of an unfair system, even as that lying makes way for—and sustains—the unfair laws it seeks to avoid. In an entrenched system, should a reformer who cares about justice embrace transparency or keep the system functioning as is? This dilemma reflects real debates among lawyers and policymakers, both seeking a path towards fairer outcomes.

As this Article demonstrates, the dichotomy between saving the system or the individuals who are processed through that system often ignores broader visions of transformation that do not fit neatly into either category. The Movement for Black Lives and abolitionist movements present at least one such reimagining, which highlight how reform around the edges does...