Plea bargains, convictions and legitimacy.

• Author: Gilchrist, Gregory M.

ABSTRACT

Plea bargaining is a pervasive and troubling aspect of our criminal justice system. Recent criticism of the practice has concentrated on its failure to mirror the likely outcome of trial. Convictions generated through plea bargaining are less related to the evidence, and, hence, to actual guilt, than convictions generated by trial. Notwithstanding this significant difference between the processes and factors that generate convictions by trial and those that generate convictions by plea bargain, the legal system treats all convictions as formally identical. In doing so, the legal system violates basic principles of fairness and undermines its legitimacy. To the extent bargained-for convictions are aligned less reliably with actual guilt than convictions after trial, they should be classified as distinct from trial convictions. Additionally, defendants who wish to secure the benefit of a plea bargain routinely are compelled to admit factual guilt to do so. Yet, innocent persons will sometimes be induced to plead guilty through the practice of plea bargaining. Compelling the innocent to lie in order to secure the benefit of a plea bargain further undermines the perceived integrity of the legal system by denying the defendant of a meaningful opportunity to be heard. This Article proposes that plea bargaining be regulated through a few simple and clear rules that would limit the harm to the legal system caused by the practice.

INTRODUCTION I. PLEA BARGAINING CAUSES MORE INNOCENT DEFENDANTS TO BE CONVICTED A. Legal Mechanisms For Preventing Conviction of the Innocent B. Plea Bargaining Undermines the Primary Legal Mechanisms for Preventing Conviction of the Innocent II. PLEA BARGAINING UNDERMINES THE LEGITIMACY OF THE LEGAL SYSTEM A. Is Convicting More Innocent People Necessarily a Bad Thing? B. The Importance of the Perceived Legitimacy of the Legal System C. How Plea Bargaining Undermines the Perceived Legitimacy of the Legal System 1. Bargained-for Convictions, Despite Their Diminished Reliability, Are Improperly Treated as Equivalent to Trial Convictions 2. Plea Bargaining Creates an Incentive for Dishonesty III. LIMITING THE HARM TO THE LEGITIMACY OF THE SYSTEM CAUSED BY PLEA BARGAINING A. Two Rules Stemming from the Recognition of the Difference Between Bargained-For Pleas and Conviction After Trial B. Implementing the Proposed Rules 1. Rule 1: Distinguish a Guilty Plea from a Conviction After Trial 2. Rule 2: Pleas Should Not Require an Admission of Guilt C. Corollaries of the Two Rules 1. Prosecutors Would Retain Discretion to Seek Full Convictions Against Any Defendant 2. Banning Charge Bargaining D. Would the Proposal Make Things Worse? CONCLUSION INTRODUCTION

Guilty pleas routinely are secured by something akin to coercion. Although courts require defendants to affirm that pleas are given freely and voluntarily, many pleas are entered under the threat of severe penalties for the defendant or her loved ones should she not plead guilty. And, the law--as a matter of law--largely ignores this pressure. (1)

Plea bargaining does enhance efficiency. The legal system, as presently structured and funded, could not generate the number of convictions it does by trial alone. (2) However, efficiency comes at a significant cost: innocent defendants are induced to plead guilty. More innocent defendants are convicted by plea bargains than would be by trials alone. These wrongful convictions not only harm the innocent persons who plead guilty; they undermine the reliability of all convictions.

Plea bargaining has often been understood to replicate or approximate likely trial results through freedom of contract. "[T]he classic shadow-of-trial model predicts that the likelihood of conviction at trial and the likely post-trial sentence largely determine plea bargains." (3) Lately, this view is increasingly subject to challenge. In his influential article, Plea Bargaining Outside the Shadow of Trial, Stephanos Bibas challenged the classic model by identifying inefficiencies in the contracting process that limit the influence of the likely outcome at trial. (4) William Stuntz--who co-authored one of the most influential articles on plea bargaining as contractS--largely agrees that the inefficiencies undermine the ability of plea bargaining to generate results aligned with likely trial outcomes. (6)

Just as it fails to track the likely consequences of trial, plea bargaining may also do a poor job of aligning criminal consequences with actual guilt. Consider the recent, high-profile prosecution of Broadcom executives over backdated options. In that case, a federal court rejected the previously-entered guilty plea and dismissed the indictment against Dr. Henry Samueli. Dr. Samueli "pleaded guilty in June 2008 to one count of making a false statement to the Securities and Exchange Commission and agreed to pay $12 million to the Treasury." (7) After Samueli completed two days of testimony as a defense witness in a co-defendant's trial, the judge asked him to step off the witness stand and face the bench. (8) When Samueli did so, the judge told him that, on the basis of his testimony, there was insufficient evidence to support the plea of guilty. (9) The court rejected the plea and dismissed the indictment, to

Not only was Samueli innocent, there was insufficient evidence to support even a guilty plea: so why would he have pled guilty in the first place?

[Samueli] said he had agreed to plead guilty and pay the penalty because he didn't want to put his family through the ordeal of a public trial--or risk a prison sentence. "It was a personal decision, based on what I would have had to put my family through," Samueli said under questioning from [his codefendant's attorney]. (11) Sometimes innocent people plead guilty because they do not believe they can prevail at trial. Sometimes they do so because they do not wish to risk the more severe sentence that will result if they lose at trial. Sometimes they do so for personal reasons. The practice of plea bargaining--granting a benefit to the defendant in exchange for the waiver of certain trial and appellate rights--provides an incentive to plead guilty.

Plea bargaining generates outcomes that may have less to do with the weight of the evidence than they do with the psychological temperament of the defendant and the charging options available to the prosecutor. Put simply, plea bargaining has little to do with actual guilt or innocence. And yet, it is the method by which almost all criminal convictions are obtained. (12) Criticism of the practice of plea bargaining is extensive and well developed. (13) Generally, these criticisms have concentrated on the fact that bargaining fails to get the "right" results: "[Plea] bargains reflect much more than just the merits.... [S]tructural distortions produce inequities, overpunishing some defendants and underpunishing others based on wealth and other legally irrelevant characteristics." (14) There is, however, another problem with plea bargaining. By failing to generate results correlated with the likely outcome at trial, plea bargaining undermines the legitimacy of the criminal justice system. As courts have long noted and empirical research has confirmed, the perception of legitimacy is a crucial aspect of a legal system's efficacy. (15) The perception of integrity is predicated in significant part on whether and how well the system functions in accord with basic rules of procedural fairness. Whether these rules are approached empirically or normatively, there is significant overlap in the factors that generate procedural fairness; common examples include neutrality, lack of bias, treating like cases alike, accounting for relevant differences, and providing parties an opportunity to be heard. (16) Systems that fail to operate in accord with such principles lose some legitimacy. And plea bargaining--at least as currently practiced--is at odds with many of these principles.

This Article considers those aspects of plea bargaining that cause the most harm to the legitimacy of the criminal justice system. It proceeds in three parts. In Part I, I argue that, under the current system, probable cause is the only effective standard of proof applied to bargained-for guilty pleas. Working within the framework of recent literature that exposes the disconnect between plea bargaining and the likely results of trial, I illustrate that the results of plea bargaining will have little to do with actual guilt or even the weight of the evidence. Trials, on the other hand, are centered around evidence. Adversaries are permitted to present evidence, in accord with well-established rules, to impartial finders of fact, who then weigh the evidence. The presumption of innocence and the government's burden of proof beyond a reasonable doubt cause the evidence to be weighed in a manner that favors, by design, wrongful acquittals over wrongful convictions. The distinction between the processes that lead to bargained-for convictions and those resulting from a trial are significant; the former is less reliably linked to evidence and actual guilt than the latter.

In Part II, I explore the impact of plea bargaining on the legitimacy of the criminal justice system. By generating less reliable results than trial, plea bargaining harms those wrongfully convicted. (17) However, there is a systemic harm as well. Notwithstanding the lesser reliability of bargained-for guilty pleas, the legal system treats such convictions as formally identical to convictions after trial. Symmetrical treatment of asymmetrical convictions generates a discord that threatens the perceived legitimacy of the criminal justice system. The legal system's failure to account for the difference in reliability between bargained-for convictions and convictions by trial represents a failure to abide by the axiom that like cases should be treated alike (and its corollary: cases that are...