Plea bargaining's baselines.

Author:Bowers, Josh
Position::Abstract through II. Trial Penalties, p. 1083-1113 - Plea Bargaining Regulation: The Next Criminal Procedure Frontier


In this Symposium Article, I examine the Court's unwillingness to take seriously the issue of coercion as it applies to plea bargaining practice. It is not so much that the Court has ignored coercion entirely. Rather, it has framed the inquiry in a legalistic manner that has made immaterial the kinds of considerations we might think most relevant to the evaluation. The Court has refused to ask qualitative questions about felt pressure, prosecutorial motivation, or the risk or reality of excessive punishment. All that matters is legal permissibility. A prosecutor may compel a defendant to plead guilty as long as she uses only code law to do so. In this way, the Court's coercion baseline is legalistic--it is defined by what the prosecutor is legally entitled to pursue.

Recently, however, the Court has shifted its constitutional focus away from code law. In a series of right-to-counsel cases, it has redefined prevailing plea bargaining practice as the benchmark. This amounts to an emerging extralegalistic baseline, defined not by code law but rather by the parties' efforts to circumvent it. Of course, the Court did not mean to alter coercion's landscape and almost certainly will not do so. My intention is to demonstrate only that the doctrinal building blocks are in place for the adoption of a better baseline--a proportionality baseline. I defend this alternative extralegalistic baseline and even prescribe a practical methodology for its discovery. And, notably, my preferred approach is not without precedent. The Court has applied analogous extralegalistic baselines to claims of coercion in other constitutional contexts.

TABLE OF CONTENTS INTRODUCTION I. BARGAINING BENEFITS A. Baselines: A Primer B. Plea Bargaining's Predictive Baseline C. Plea Bargaining's Normative Baseline II. TRIAL PENALTIES A. Plea Bargaining's New Predictive Baseline B. Plea Bargaining's New Normative Baseline C. Plea Bargaining's Burgeoning Proportionality Baseline III. SOME TENTATIVE THOUGHTS ON A JURISPRUDENCE OF PROPORTIONALITY A. Legality All the Way Down B. A Proportionality Methodology C. Proportionality Applied IV. EXTRALEGALISTIC COERCION & POSITIVE CONSTITUTIONAL LAW A. Justice Roberts's Extralegalistic Conception of Coercion B. Reforms Revisited C. Justice Scalia's Extralegalistic Conception of Coercion CONCLUSION INTRODUCTION

What does it mean for a guilty plea to be "voluntary"? As I have examined elsewhere, the Supreme Court has adopted a procedural conception of voluntariness that principally demands that the defendant "plead[] guilty with his eyes open." (1) That is to say, a guilty plea is voluntary as long as the defendant is given fair notice of the charges, the rights waived, and the consequences of pleading guilty. (2) By focusing almost exclusively on a procedural doctrine of fully informed bargaining, the Court has neglected to examine substantive questions of when and whether a plea or trial sentence is disproportionate, or when and whether the sentencing differential between plea and trial is so great that the defendant was given no practical choice but to take the deal. Likewise, the Court has held prosecutorial motivation irrelevant. (3) Thus, a prosecutor may freely threaten sentences of death or mandatory life without parole even if her objective is only to compel a plea to a term of years. (4) Of course, the charge must be supported by probable cause. (5) But this measure of technical legal guilt--or "formal legality," as Bill Stuntz termed it--is the touchstone. (6) Concretely, a charge supported by probable cause can never be coercive. And, as long as the defendant sees the charge coming, his plea is constitutionally voluntary. (7)

The Court has recently revisited the practice of plea bargaining in a series of cases establishing the right to effective assistance of counsel during negotiations and pleas. As in the past, the Court has kept its focus on notice. In Missouri v. Frye, the Court held that defense attorneys are constitutionally obligated to make clients aware of formal plea offers. (8) And in Lafler v. Cooper, the Court suggested that defense attorneys are also obligated to give constitutionally adequate advice about the wisdom of pleading guilty. (9) Again, the Court's perspective is that a defendant constitutionally accepts or refuses a plea bargain when he satisfactorily understands his options. (10) The question is not the substantive degree of bargaining pressure, but only whether the defendant is sufficiently aware of that pressure. In this way, coercion remains irrelevant--or, at most, an afterthought.

At a conceptual level, however, the Court's decisions in Lafler and Frye did break ground. For the first time, the Court owned up to a somewhat embarrassing fact--that ours is "a system of pleas, not a system of trials." (11) With this acknowledgment, the Court came to grips with plea bargains and guilty pleas as the expected mode of disposition. How does this change matters? One may persuasively argue that the Court has effectively reset the baseline against which constitutional infirmities are measured in the plea bargaining context. The trial is no longer the benchmark. To the contrary, the defendants in Lafler and Frye were able to demonstrate ineffective assistance of counsel for negotiation errors--not errors at the pretrial, trial, or sentencing stages. (12) Most notably, in Lafler, the defendant suffered a constitutional injury from the "loss of the plea opportunity"--the opportunity to access the negotiated sentence that he otherwise "would have received in the ordinary course." (13) Thus, the Court redefined the "ordinary course" as the plea bargain and recognized the "market price" (14) as the baseline against which the constitutional injury was to be evaluated. More to the point, it established that, in some circumstances, the defendant might even enjoy a constitutional entitlement to what is sometimes called the market price. (15)

But what does this have to do with coercion? At first blush, not much. Nor do I harbor illusions that the Court might reorient its plea bargaining focus from procedural notice to substantive pressure. Long ago, the Court assumed away the coercion question. (16) We should not expect it to retread that terrain any time soon. In this sense, the aim of my project is modest. I intend to show only that the Court's recent decisions have made its underlying assumptions that much harder to sustain.

To understand what I mean, the reader may require some grounding in theories of coercion. This is no easy task because coercion is just too contested. Nevertheless, there is fair consensus for the proposition that only threats, not offers, may coerce. (17) More importantly, the Court's rhetoric has reflected this proposition--that plea proposals constitute offers, noncoercive opportunities to make defendants better off than they otherwise would have been. (18)

The question of whether a plea proposal constitutes an offer, as opposed to a threat, depends in the first instance on the applicable baseline. (19) And for any coercion question there are many prospective baselines. Most theorists lump baselines into one of two camps: predictive or normative. (20) At the risk of oversimplification, a predictive baseline is what a person empirically would expect to happen in the ordinary course. (21) A normative baseline is what a person legally, morally, or prudentially is entitled to expect in the ordinary course. (22)

So where does that leave us? In Part I, I explore what I understand to be the Court's two prevailing baselines in this context. The first is a predictive baseline defined by the trial punishment. On this reading, the trial sentence is the anticipated criminal sanction, and, against that baseline, all plea proposals are offers with corresponding benefits. (23) The second is a normative baseline defined by what the prosecutor is lawfully entitled to do. (24) According to this conception of coercion, a permissible criminal charge (a count supported by probable cause) cannot constitute a threat, because the prosecutor has the authority--legalistically defined--to pursue it in the first instance. (25) In such circumstances, the plea proposal operates only to make the defendant better off than he was lawfully entitled to be. (261) think it is fair to say that, as a matter of positive law, this legalistic baseline has been doing comparatively more work than the predictive baseline. (27)

In Part II, I examine the manner by which the Court's decisions in Lafler and Frye may have reset--or at least upset--the conventional plea bargaining baselines. In these cases, the Court finally took frank notice of the long-apparent fact that the guilty plea is the expected mode of disposition and, consequently, that the negotiated sentence is the anticipated penalty. Deviations from plea prices thereby constitute deviations from the Court's newfound predictive...

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