Judicial suicide or constitutional autonomy? A capital defendant's right to plead guilty.

• Author: Fisher, Barry J.
• Position: State prohibitions on guilty pleas

1. INTRODUCTION

   In 1995, when New York reinstituted the death penalty with much fanfare, it joined only two other states, Arkansas and Louisiana, in forbidding a criminal defendant from pleading guilty when facing the death penalty. (1) However, in reviewing the history of the capital guilty plea, Anglo-American law suggests that an across-the-board prohibition against capital guilty pleas violates the fundamental notion of due process. (2) The right of an accused, even one facing the death penalty, to plead guilty unconditionally to the charges against him was explicitly recognized at common law. (3) It has been widely and almost uniformly acknowledged and honored by state and federal courts since the Colonial period. (4) Further, this right remains protected in the statutes and court decisions of all states but Arkansas, Louisiana, and New York. (5)

   The protection of the right to plead guilty offers important and legitimate benefits to capital defendants. This includes autonomy in deciding whether or not to exercise their trial rights guaranteed by the Sixth Amendment. (6) Moreover, the choice to plead guilty spares the capital defendant and his family from the spectacle and ordeal of protracted pretrial and trial proceedings, while focusing a judge's attention on punishment and the defendant's demonstrated acceptance of responsibility. Additionally, a truthful, formal, and public acknowledgment of guilt is a virtue in itself. (7)

   Conversely, it is doubtful that any governmental interest continues to legitimize Arkansas, Louisiana, and New York's prohibitions against guilty pleas when the defendant is subject to the death penalty. Procedures permitting, but not requiring, the imposition of a death sentence following a guilty plea do not violate the United States Constitution, and have been adopted by statute in thirty-five of the nation's thirty-eight death penalty jurisdictions. (8) Today there are certain privileges afforded to criminal defendant's that are universal across all state capital punishment statutes, including--defendants' entitlement to the effective assistance of counsel; the requirement that a court may accept a guilty plea only if it is done knowingly and voluntarily; and the provision that a death sentence is discretionary rather than automatic upon conviction. (9) Thus, a defendant who pleads guilty in a capital case is not committing "judicial suicide." (10)

   Following a historical discussion of a criminal defendant's right to plead guilty to a capital offense at common law as well as during the colonial era up until the adoption of the Fourteenth Amendment, this article will examine the prohibition against capital guilty pleas and its current validity in New York, Arkansas, and Louisiana. (11) This article will conclude that since this prohibition is at odds with "both traditional and modern practice," where the state's interest in it is modest at best, it "`offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,'" and thus violates due process. (12)

2. A DEFENDANT'S PREROGATIVE TO PLEAD GUILTY WAS RECOGNIZED AND PROTECTED AT COMMON LAW, EVEN FOR CRIMES PUNISHABLE BY DEATH

   As early as the eleventh century in England, a thief caught in the act could "confess," then be condemned and either pay a fine or forfeit his life. (13) Writing in 1678, Sir Matthew Hale recognized three possible pleas to a felony charge: demurrer or confession, plea in abatement, and plea of general issue or not guilty. (14) Regarding the first plea, he wrote: "[i]t amounts to a Conf[ession] of the Indictment, as laid; and therefore if the Indictment [is] good, Judgment again[st] the Pri[soner], and Execution." (15) Other leading legal commentators of this period recognized the common law "confession" or guilty plea. (16) As one modern court observed, "`[u]ndoubtedly, at common law, a defendant of competent understanding, duly enlightened, had the right to plead guilty to a capital crime instead of denying the charge.'" (17)

   In the case of crimes punishable by death--which included virtually all felonies--guilty pleas were entered, although rather infrequently. (18) In England during common law times, judges were reluctant to accept a guilty plea in a capital case, and often encouraged defendants to rethink such a course of action. (19) As Blackstone observed, a court was "usually very backward in receiving and recording such confession, out of tenderness to the life of the subject; and ... [would] generally advise the prisoner to retract it, and plead to the indictment." (20) Such hesitancy, however, stemmed from concerns about coerced, uninformed, or otherwise involuntary guilty pleas (21) and the mandatory nature of the death penalty for many felony offenses at that time. (22)

3. UNTIL THE ADOPTION OF THE FOURTEENTH AMENDMENT, MOST STATES AND THE FEDERAL GOVERNMENT HONORED A CAPITAL DEFENDANT'S RIGHT TO PLEAD GUILTY

   The framers of the Constitution explicitly provided that a defendant could be convicted of treason, which was originally a capital offense, by pleading guilty. (23) The earliest case law from this country likewise recognized that an accused could enter a plea of guilty even in a capital case. (24) In Commonwealth v. Battis, (25) an 1804 decision frequently cited by later courts and commentators, the defendant insisted on pleading guilty to murder, following warnings by the Supreme Judicial Court of Massachusetts (then the trial court for capital cases) "of the consequence of his plea, and that he was under no legal or moral obligation to plead guilty--but that he had a right to deny the several charges and put the government to the proof of them." (26) Following the court's determination that the prisoner was sane and the plea was not the product of "tampering" or "promises," "the clerk [was] directed to record the plea." (27) Ultimately, the prisoner was "executed." (28)

   Throughout the remainder of the nineteenth century, courts (29) as well as leading legal commentators (30) recognized that a defendant could plead guilty unconditionally to a crime punishable by death. In 1892, the United States Supreme Court in Hallinger v. Davis, (31) affirmed the death sentence of a defendant who had pled guilty. (32) As in common law times, judges were slow to accept a guilty plea in capital cases, often cautioning defendants to reconsider such a decision and closely scrutinizing these pleas to ensure that the defendant was of sound mind and was not acting under duress or out of ignorance. (33)

   During this period, many authorities, including courts across the country, described the entering of a guilty plea as a "right" enjoyed by the accused or, conversely, noted that a trial judge lacked the authority to absolutely refuse to entertain such a guilty plea. (34) This view is consistent with the Sixth Amendment's antecedent right to a jury trial as a "right or privilege of the accused," rather than "as a part of the structure of government." (35)

   This right of a capital defendant to plead guilty was accommodated in practice as well as in theory. Numerous appellate decisions from various states, from colonial times through to the early twentieth century, discuss and approve of accepting actual capital guilty pleas. The death sentences to which these pleas led, usually without much fanfare, indicate that it was a regular and accepted, albeit infrequent, feature of criminal practice during this period. (36) Nor is the force of this significant and uniform body of law undermined by the fact that, in most of these cases, it was the government who was asserting a capital defendant's right to plead guilty and it was the defendant himself, seeking to set aside his plea or sentence, who was denying it. (37)

   Indeed, capital guilty pleas became even more accepted and common in this country than they had been in England because, beginning in the early nineteenth century, most states eliminated any lingering common law concern over whether such pleas amounted to judicial suicide or created an obstacle to discretionary leniency. (38) States eliminated these concerns by amending their penal statutes to create different grades of murder for sentencing purposes, only the highest of which--first-degree murder--was punishable by death. (39) Additionally, during this same period, many states provided for discretionary jury sentencing even in the case of a first-degree murder conviction. (40) Under such statutes, a defendant could plead guilty unconditionally to the charge and seek a more lenient sentence from the jury, either by a finding of a lesser degree of murder upon a plea to simple murder or a recommendation of mercy upon a plea to the highest grade of murder. (41)

4. ONLY THREE STATES STATUTORILY PROHIBIT CAPITAL GUILTY PLEAS SINCE THE ADOPTION OF THE FOURTEENTH AMENDMENT

   New York, Arkansas, and under some circumstances, Louisiana, are the only states that prohibit pleading guilty when the conviction could result in a death sentence. (42) One other state, New Jersey, experimented with such a rule but abandoned it more than twenty years ago. (43) In the case of all four states, with the possible exception of Louisiana, these prohibitions arose more than a century after the adoption of the Federal Constitution and a number of years after the ratification of the Fourteenth Amendment. (44) There are apparently no statutes or case law from other states, or the federal government, nor any existing rules or provisions against a competent criminal defendant from entering a knowing, voluntary, and unconditional guilty plea to a capital charge, in a murder case, or any other similar category of prosecutions. (45) On the contrary, the remaining thirty-four death penalty states (in addition to New Jersey, the thirty-fifth) as well as the federal system permit unconditional guilty pleas to capital offenses whether or not the prosecution is seeking the death...