Thinking outside the jury box: deploying the grand jury in the guilty plea process.

• Author: Fairfax, Roger A., Jr.
• Position: Plea Bargaining Regulation: The Next Criminal Procedure Frontier

TABLE OF CONTENTS INTRODUCTION I. THE WORLD OF GUILTY PLEAS AND THE CALL FOR RESTORING POPULAR PARTICIPATION IN THE CRIMINAL JUSTICE SYSTEM II. THOUGHT EXPERIMENT: USING THE GRAND JURY IN THE GUILTY PLEA PROCESS A. Factual Basis B. Approval of the Plea Agreement C. Challenges and Objections 1. The Grand Jury's Usefulness 2. Impact on Efficiency of Criminal Justice 3. Other Concerns III. JUDGES' REACTIONS TO THE PROPOSAL A. Factual Basis B. Review of the Terms of the Plea Agreement C. Practical Concerns D. The Judges' Suggestions for Better Regulating Plea Bargaining CONCLUSION INTRODUCTION

There is near-universal agreement that the engine of the modern American criminal justice system is plea bargaining. (1) Given the ubiquity of plea bargaining, the Supreme Court and the rest of the legal community have begun setting their sights on how the practice might be better regulated. (2) At the same time, many hold the view that the grand jury has outlived its usefulness in the administration of criminal justice and is a relic of a time gone by. (3) Even before recent calls for the abolition of the grand jury in the wake of high-profile cases that seemed to cast the institution in a bad light, (4) serious questions arose regarding the necessity of a body that seemed superfluous in an era in which most criminal cases end in guilty pleas. (5)

This Article, written for the William & Mary Law Review Symposium, "Plea Bargaining Regulation: The Next Criminal Procedure Frontier," considers how plea bargaining might be better regulated and whether the grand jury could play a role in the regulation of plea bargaining--namely, in the determination of the factual basis for pre-indictment guilty pleas and the reasonableness, fairness, and propriety of plea bargains and plea agreements. In this way, the Article evaluates whether the grand jury may serve as a popular accountability mechanism for defense counsel, prosecutors, and judges in the guilty plea process.

Part I of this Article examines the recent recognition of the influence and ubiquity of plea bargaining in modern criminal justice and the procedural and substantive safeguards courts have begun to impose in order to regulate the guilty plea process. This Part highlights the lack of popular participation in this "world of guilty pleas," and calls for ways to maintain the lay role in the disposition of criminal cases. (6)

Part II of this Article proposes a thought experiment. What if we deployed the grand jury in the guilty plea process? Could the supposedly underutilized grand jury provide the vehicle desired for regulation of the plea bargaining regime and inject the popular participation missing in today's criminal justice system? In particular, might the grand jury have a role to play when the court determines whether there is a factual basis for the guilty plea and reviews the terms of the plea agreement? Part III recognizes the significant practical challenges to the use of the grand jury for these purposes and considers practical and philosophical objections to this proposal--particularly those raised by a number of thoughtful and prominent trial judges interviewed by the author. The Article concludes with thoughts on what these judges believe are the most pressing needs for reform in the plea bargaining regime and which solutions are most compelling.

1. THE WORLD OF GUILTY PLEAS AND THE CALL FOR RESTORING POPULAR PARTICIPATION IN THE CRIMINAL JUSTICE SYSTEM

   Today, nearly all convictions come after the defendant pleads guilty to the charges alleged against him. (7) Indeed, in Lafler v. Cooper, the Supreme Court recently recognized the centrality and ubiquity of plea bargaining in the modern criminal justice system:

   [C]riminal justice today is for the most part a system of pleas, not a system of trials. Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.... [T]he right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining plays in securing convictions and determining sentences. (8) This means that there is little, if any, popular participation in the modern criminal justice system. Of course, democratically elected representatives are responsible for passing the criminal laws, and prosecutors--most of whom are elected and thus presumably accountable to the electorate--are charged with enforcing the laws. (9) However, the sort of direct lay involvement in the adjudication of criminal cases contemplated by the founding generation has given way to administrative efficiency in this world of guilty pleas. (10)

   The fact that nearly all criminal convictions are derived from guilty pleas rather than trials has fueled the sentiment that the community needs more involvement in the determination of criminal cases. (11) One thoughtful proposal, advanced by Professor Laura Appleman, would create a "plea jury" to help guide the guilty plea process and provide the court with lay perspective in the consideration and processing of guilty pleas. (12) As Professor Appleman explains:

   [T]he current configuration of the criminal guilty plea leaves no room for the community's voice. Guilty pleas, although indispensable to the smooth processing of criminal justice, have become hasty and rote, allowing little to no expression of the community's voice. Moreover, the chronic imbalance of prosecutorial power over the last thirty years has shrunk the roles of the defendant, the defense attorney, and even the court to small ones that are easily pushed aside. Incorporating a plea jury into the guilty-plea process provides The solution to many of these problems. (13) Therefore, Professor Appleman proposes the creation of a jury expressly for the purpose of reviewing plea bargains and the plea process. (14) This plea jury, which Professor Appleman describes "as a cross between a grand jury and a petit jury," (15) would supplement or usurp the judge in the core functions the court performs in the plea process, determining that: (1) the plea is knowing, voluntary, and intelligent; (2) a factual basis exists for the plea; and (3) the sentence is appropriate. (16)

2. THOUGHT EXPERIMENT: USING THE GRAND JURY IN THE GUILTY PLEA PROCESS

   In addition to enhancing the guilty plea process that animates the bulk of criminal justice today, Professor Appleman's proposal promotes lay participation in the criminal justice system. However, the creation of such a plea jury might, in fact, be unnecessary. As the author of this Article has posited elsewhere, a new entity or mechanism for popular participation in the plea process may be superfluous. (17) The grand jury might be in a position to play the role contemplated by the proposed plea jury. (18)

   However, the suggestion that the grand jury is already equipped to perform this function has not been adequately fleshed out--until now. Although the grand jury may not be the best arbiter of whether a plea is knowing, voluntary, and intelligent, (19) the grand jury could play a key role in determining whether there is a factual basis for a guilty plea and whether the plea agreement is fair and proper. What follows is an "outside of the box" idea that considers whether the grand jury could have a role to play in the regulation of plea bargaining--namely, in the determination of the factual basis for pre-indictment guilty pleas and the reasonableness, fairness, and propriety of plea agreements.

   1. Factual Basis

      Under the Federal Rules of Criminal Procedure, the judge presiding over a guilty plea must determine that there is a factual basis for the plea. (20) Given the grand jury's unique features, it might be an excellent organ for the review of the factual basis. First, this is what the grand jury does. One of its core functions is to determine whether there is a sufficient factual basis--probable cause--to believe that the target of the grand jury's inquiry committed the alleged offense. (21) In doing so, the grand jurors have the opportunity to engage in a full and frank discussion of the facts placed before them, and they can deliberate to reach a conclusion as to whether there is, in fact, probable cause to support the indictment. (22) This process can be easily adapted for determining whether there is a factual basis for the guilty plea.

      Second, this function can be performed because of what the grand jury is. Because of its typically larger size, the grand jury represents a greater cross-section of the community than the petit jury. (23) It is therefore uniquely equipped to bring to bear the diverse views and experiences of the grand jurors as they assess whether the facts alleged by the government and admitted by the defendant are indeed substantiated. (24)

      Although it may seem odd to require a third party to approve facts stipulated by both the government and the defendant, this is exactly what federal courts now are tasked with doing under Rule 11. (25) Particularly in...