Punishing protestations of innocence: denying responsibility and its consequences.

• Author: Givelber, Daniel

Could a state legislature provide that the penalty for every criminal offense to which a defendant pleads guilty is to be one-half the penalty to be imposed upon a defendant convicted of the same offense after a not-guilty plea? I would suppose that such legislation would be unconstitutional under United States v. Jackson.(1)

Consider the following exchange:

Erdmann walks to the far end of the cell and Santiago meets him at the bars. Erdmann puts his toe on a cross strip between the bars and balances Santiago's folder and papers on his knee. He takes out a Lucky Strike, lights it and inhales. Santiago watches, and then a sudden rush of words starts violently from his mouth. Erdmann silences him. "First let me find out what I have to know," he says calmly, "and then you can talk as much as you want." Santiago is standing next to a chest-high, steel-plate partition. On the other side of it, a toilet flushes. A few steps away, Rodriguez is talking through the bars to his lawyer, "If you didn't do anything wrong," Erdmann says to Santiago, "then there's no point even discussing this. You'll go to trial."

Santiago nods desperately, "I ain't done nothing! I was asleep! I never been in trouble before." This is the first time since his initial interview seven months ago that he has had a chance to tell his story to a lawyer, and he is frantic to get it all out. Erdmann cannot stop the torrent, and now he does not try. "I never been arrested," Santiago shouts, "never been to jail, never been in no trouble, no trouble, nothing. We just asleep in the apartment and the police break in and grab us out of bed and take us, we ain't done nothing. I never been in trouble, I never saw this man before, and he says we did it. I don't even know what we did, and I been here 10 months, I don't see no lawyer or nothing, I ain't had a shower in two months, we locked up 24 hours a day. I got no shave, no hot food, I ain't never been like this before, I can't stand it. I'm going to kill myself, I got to get out, I ain't--"

Now Erdmann interrupts, icily calm, speaking very slowly, foot on the cross strip, drawing on his cigarette. "Well, it's very simple. Either you're guilty or you're not. If you're guilty of anything you can take the plea and they'll give you a year, and under the circumstances that's a very good plea and you ought to take it. If you're not guilty, you have to go to trial."

"I'm not guilty." He says it fast, nodding, sure of that.

"Then you should go to trial. But the jury is going to hear that the cop followed you into the building, the super sent him to apartment #-A, he arrested you there, and the man identified you in the hospital. If they find you guilty, you might get 15 years." Santiago is unimpressed with all of that.

"I'm innocent. I didn't do nothing. But I got to get out of here. I got to--."

"Well, if you did do anything and you are a little guilty, they'll give you time served and you'll walk."

"That's more like it. Today? I walk today?"

"If you are guilty of something and you take the plea."

"I'll take the plea. But I didn't do nothing."

"Then you'll have to stay in and go to trial."

"When will that be?"

"In a couple of months. May be longer." Santiago has a grip on the bars.

"You mean if I'm guilty I get out today?"

"Yes." Someone is urinating on the other side of the partition.

"But if I'm innocent, I got to stay in?"

"That's right." The toilet flushes. It's too much for Santiago. He lets go of the bars, takes a step back, shakes his head, turns around and comes quickly back to the bars.

"But, man--"(2)

1. INTRODUCTION

   Forcing an accused to chose between immediate freedom in return for a guilty plea and continued incarceration in return for a claim of innocence seems perverse. We claim to value the protection of the innocent ahead of the conviction of the guilty, yet the opposite dynamic appears to be at work in the vignette quoted above, a vignette repeated each time the defendant is offered "time served" in return for a plea. The road to freedom is a guilty plea, whereas insisting upon innocence means that incarceration continues. The contradiction resolves if we know that the client, Santiago, is really guilty but just needs to be prodded into admitting it. Then it is his irrational unwillingness to acknowledge responsibility rather than his principled insistence upon innocence which keeps him in jail. Of course, if we do not know that Santiago is guilty, then we confront the disturbing possibility that he is being threatened with additional punishment precisely because he is both innocent and naive or stubborn or principled enough to insist upon a trial to establish that fact.(3)

   The Santiago dilemma -- freedom for a plea, the possibility (or certainty) of jail for a claim of innocence -- is hardly an aberration. It is but one manifestation of the general principle that those who deny guilt should be punished more than those who admit it. This principle finds expression in the Federal Sentencing Guidelines, the most comprehensive effort to rationalize and regularize sentencing. This Article explores the reasons given for embracing the principle, its consequences, and whether there are alternative approaches to the conflicting procedural aims of acquitting the innocent while encouraging the guilty to plead.

   In the year 1969, a defendant seeking to plead guilty in federal court was required to lie in order to have the plea accepted. The defendant needed to assert under oath that no promises had been made in return for his plea of guilty. The prosecutor, who had made such promises, and the defense counsel, who had secured them, stood by silently in violation of their obligation to insure against the knowing use of false testimony. Once the plea had been accepted, the prosecutor would typically move to dismiss some of the charges against the defendant and the court would grant the motion.

   Nothing this unseemly occurs in public today.(4) Collusion is no longer necessary to secure and effect a plea bargain. The uncomfortable belief animating the pre-1970 charade -- that securing a plea through promises of leniency was unconstitutional -- has been swept away by the Supreme Court.(5) Now one recognizes that rather than denying or obscuring the benefits accorded to those who forgo their right to contest guilt, one needs to publicize that such a trade has occurred and insist that its terms be followed.

   The transparent nature of the treatment of pleas and plea bargaining provides the de facto answer to Justice Stewart's question of whether a state could double the penalties for those who are convicted following trial. Society can punish those who seek trial more severely than those who plead, and can do it precisely because it wants those accused of crimes to plead guilty. The Federal Sentencing Guidelines provide for different sentences for those who plead guilty and those who go to trial, and a state legislature should be able to do the same. No federal appellate court has viewed as unconstitutional the Guideline provisions that create the differential between those who plead guilty and those who go to trial. It would be surprising if these courts felt differently if the states did the same thing. United States v. Jackson is no longer the law.

   The decision has never been formally overruled. It remains on the books, and continues to nag at the conscience of at least a few federal judges that it is unconstitutional to burden the right to trial by guaranteeing lesser punishment to those who plead.(6) Many still insist that there is a difference of constitutional dimension between giving someone a discount for waiving a constitutional right as opposed to punishing someone for exercising a constitutional right.(7) Or, at least, that judges, as opposed to prosecutors or legislatures, should not do this.(8) Because there is a vestigial sense that you are not permitted to actually imprison someone for asking for a jury trial, there is little acknowledgment that this is exactly what can and does happen.

   Trials are costly, particularly to those defendants who actually receive them. The constitutionally acceptable explanation for why courts can inflict costs upon those who believe what the Sixth Amendment says originally related to notions of justice, efficiency, and autonomy.(9) The Burger Court proudly identified a range of benefits flowing to the government, the society at large, and the accused from guilty pleas.(10) It was thought that a defendant's guilty plea resulting from a bargain: (a) said something meaningful about the extent to which he should be punished; (b) permitted the efficient operation of the criminal justice system; and (c) recognized that the defendant was an autonomous individual capable of evaluating the risks of both conviction and sentence and of negotiating a deal which he believed maximized his self-interest.(11)

   Within a decade of first acknowledging that bargaining for a guilty plea was appropriate, the Court decided that a state could conclude that guilty pleas were so desirable that there was no need for the give and take of bargaining that traditionally preceded them. Rather, the state could authorize different sentences for the same crime depending upon whether the defendant was convicted by plea or after trial.(12) Thus, the Court saw no constitutional difficulty with a legislative scheme requiring a defendant to waive trial in order to have any chance of avoiding life imprisonment following a first degree murder conviction.

   The Federal Sentencing Guidelines build on this constitutional authority to authorize differential sentencing depending upon whether the defendant pleads guilty or goes to trial.(13) The Guidelines do not pretend, nor could they, that the differential reflects anything about the likely outcome of a given case. The differential exists regardless of the chances of acquittal. Indeed, the prosecutor's views on whether the defendant should be...