Why plea bargains are not confessions.

Author:Garrett, Brandon L.
Position:Plea Bargaining Regulation: The Next Criminal Procedure Frontier


Is a plea bargain a type of confession? Plea bargaining is often justified, as, at its core, a process involving in-court confession. The U.S. Supreme Court's early decisions approved plea bargains as something "more than a confession which admits that the accused did various acts." (1) I argue in this Article that plea bargains are not confessions--they do not even typically involve detailed admissions of guilt. The defendant generally admits to acts satisfying elements of the crime--a legally sufficient admission to be sure, but often not under oath, and often not supported by any extensive factual record. Because plea bargains typically contain only formulaic admissions, they have limited preclusive impact in future cases. The modern trend has been to find issues not precluded by a guilty plea, except perhaps as to elements of the charged offense. A deeper problem with the lack of adjudicated facts arises when other actors later seek to attach collateral consequences to the conviction. More careful development of the factual record could help to prevent at least some guilty pleas by innocent defendants, and additionally, that development could produce reforms that would more narrowly target the collateral consequences that now attach to entire categories of convictions. These benefits reveal that it is particularly important to understand precisely why plea bargains are not "more than," (2) and are in fact much less than, confessions.

TABLE OF CONTENTS INTRODUCTION I. PLEA BARGAINS AS CONFESSIONS A. Plea Bargains Regulated As Confessions B. Factual Basis C. Nolo And Alford Pleas D. No Preclusion Without Confession II. COLLATERAL CONSEQUENCES OF ADMISSIONS A. Sentencing B. Rethinking Collateral Consequences of Pleas CONCLUSION INTRODUCTION

Is a plea bargain a type of confession? Confessions have long been powerful engines for expediting criminal cases, if nothing else. Confessions may be very powerful before a jury--indeed, a confession may "trump" all other evidence in the case, for better or sometimes for worse. (3) In many civil law countries, confessions are provided in the vast bulk of criminal cases, and the process strongly encourages defendants to confess. (4) In the United States, however, almost all cases are plea-bargained, while custodial confessions are not routine, although their exact prevalence is unknown. (5) Some scholars have suggested that the U.S. system can be considered just as confession-dominated as civil law systems, if plea bargains are themselves seen as a type of confession, or an admission of guilt, rather than merely an expeditious negotiated settlement that avoids a criminal trial. (6) I argue that whatever their other merits and defects, plea bargains are not confessions--they do not even typically involve detailed admissions of guilt. The defendant generally admits to acts satisfying the elements of the crime--a legally sufficient admission to be sure--but often not while under oath and typically without support from an extensive factual record. (7) These characteristics have led courts to attach limited preclusive effect to pleas in future cases, exposing why it is worth considering mechanisms to more carefully develop the factual record during the plea process. Doing so could not only help to prevent guilty pleas by innocent defendants, but it could also produce reforms that more narrowly target collateral consequences of convictions.

Despite the reality that little is admitted--much less confessed--in a plea bargain, plea bargaining is often justified as, at its core, a process involving confessions. The U.S. Supreme Court's early decisions on plea bargaining approved a view that a plea bargain involved not just a stationhouse confession, but "more than a confession which admits that the accused did various acts." (8) As the Court explained in Boykin v. Alabama, a plea "is itself a conviction; nothing remains but to give judgment and determine punishment." (9) Far earlier, in 1927, the Court called a guilty plea more than "a mere admission or an extra-judicial confession" because "it is itself a conviction." (10) The Court has highlighted how a plea is entered before a judge, assuring it is voluntary and informed, with the benefit of counsel. (11) The Court has emphasized that "[c]entral to the plea and the foundation for entering judgment against the defendant is the defendant's admission in open court that he committed the acts charged in the indictment." (12)

A confession in an interrogation room, in contrast, involves extra-judicial admissions of guilt, which could be coerced or false, and, if found involuntary or to have been given in violation of constitutional requirements, may be suppressed from trial. (13) Consequently, some scholars have argued that plea bargains, in contrast to interrogations, produce particularly credible and valuable admissions of guilt. Indeed, the argument is sometimes made that plea bargaining is superior to trial because "the fact-finding task assigned to the jury at trial is displaced by the defendant's confession." (14) The common assumption is that "a defendant will not falsely condemn himself by pleading guilty since he knows that the immediate consequence is a criminal conviction." (15) As one prosecutor has explained: "When a defendant agrees in a plea bargain that the state could prove a certain set of facts ... that becomes the truth as much as it can ever be established in the eyes of the law." (16) In its key plea bargaining decisions, the Supreme Court has made the empirical assumption that "[defendants advised by competent counsel and protected by other procedural safeguards are ... unlikely to be driven to false self-condemnation." (17) Policymakers have similarly treated guilty pleas as tantamount to admissions of guilt by, for example, denying postconviction DNA testing to those who had pleaded guilty, (18) and generally leaving unclear the extent to which those who have pleaded guilty are even eligible for postconviction relief. (19) Further restrictions may be imposed if courts adhere to plea waivers of access to an appeal or postconviction remedies. (20)

As I will argue in this Article, those confession-based justifications for plea bargaining are simply not supported. To be sure, plea bargains are justified on many other important grounds, particularly because they are efficient, avoid uncertainties of outcomes at trial, and permit choice, compromise, and flexibility. (21) The most recent Supreme Court rulings display somewhat more of this realism. In Missouri v. Frye, the Court emphasized that admissions by defendants (not confessions) maybe self-serving compromises: "The potential to conserve valuable prosecutorial resources and for defendants to admit their crimes and receive more favorable terms at sentencing means that a plea agreement can benefit both parties." (22) Recent plea bargaining scholarship has also reflected more of the same realism. The many critics of plea bargaining point out how even the innocent may plead guilty to avoid higher penalties at a trial, with the resulting process empowering the prosecutor and largely eliminating judicial oversight. (23) Some of those critics believe that since "admissions" of guilt are important to plea bargaining, defendants should not be allowed to plead guilty while also asserting innocence. (24) Others go further and argue that those who plead guilty have, in effect, confessed, and as a result, should not be able to obtain DNA testing that might later prove innocence. (25) Plea bargains are not confessions, but part of their power and seeming legitimacy comes from the defendant admitting to guilt in court--or at least appearing to do so.

Challenging the assumption that plea bargaining derives its legitimacy from an admission of guilt is one prominent reason why I view it as particularly important to understand that plea bargains are not "more" than confessions, but are in fact much less than confessions. To be sure, confessions themselves may be produced under undocumented, unreliable, and coercive conditions, as I have detailed elsewhere. (26) As described in the first Part of this Article, the confession analogy completely breaks down upon a close examination. (27) A hearing at which a judge approves a plea bargain does not involve a full-blown confession to the facts of the crime. Rather than confess in front of an inquisitor, defendants typically make only quite limited admissions of guilt during plea bargains. (28)

Judges may ask a defendant to provide an "allocution" before pleading guilty, but the admission of guilt need not be under oath or very detailed, and it may just involve an in-court agreement that the defendant committed acts satisfying the legal elements of the crime. (29) As I describe in the first Part, (30) in federal court, and in many state courts, judges need only assure themselves of some "factual basis" for the crime, and it need not be based on any meaningful review of the evidence. (31) Indeed, the defendant may say little or nothing at all of any substance. Practices range widely, and some courts even tolerate plea bargains en masse with nothing particularly individualized about the process. (32) The government's recitation of the facts can provide the basis for the plea, as can other evidence from police or probation officer reports. The defendant agrees to receive a conviction and sentence, which can bring with it prison time and a range of collateral consequences. Those consequences formally attach to the conviction itself and are not a confession to the underlying facts of the crime because those facts may not have been determined with any specificity. If a plea bargain is a confession or an admission, it is often one stating, "I did it," with "it" being the legal definition of the crime, but not what was actually done or how or why.

The confession model of plea bargaining is important enough that some...

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