Adding Balance and Transparency to the Plea Bargaining Process

The Hon. Jed Rakoff — U.S. District Judge, Federal District Court in Manhattan — has expressed concern over the fairness and accuracy of outcomes resulting from plea bargaining. In the United States, plea agreement negotiations have become the resolution mechanism for the vast majority—more than 95 percent—of federal and state criminal cases. The judge believes that the process contributes to an unacceptable number of innocent people pleading guilty to crimes they did not commit.

“We have hundreds, or thousands or even tens of thousands of innocent people who are in prison, right now, for crimes they never committed because they were coerced into pleading guilty,” Judge Rakoff said at the University of Southern California Gould School of Law’s annual Neiman Sieroty Lecture earlier this year. Read an article in USCNews on his comments (here).

The judge noted in an article in the New York Daily News (here), “The current process is totally different from what the founding fathers had in mind.”

Armed with draconian mandatory sentences and discretion in charging, prosecutors hold the best cards in these negotiations.

While he hasn’t worked out all of the details, the judge has proposed utilizing junior judges [magistrates] to hear separately from defense attorneys and prosecutors before making non-binding recommendations for the plea bargain. These recommendations could include the advice to forego indictment in the case. Judge Rakoff would like to see the proposal tested in a pilot program.

In the article, “Wrongful Convictions and Prosecutorial Discretion: Issues and Recommended Reforms in U.S. and European Criminal Justice Systems”¹ authors C. Ronald Huff, Jim Petro and Nancy Petro (this post’s author), propose another procedure that would add transparency especially in the minority of cases not resolved by plea agreement:

• Require that the final plea bargain offer is acknowledged by the defendant, the defense attorney, and the prosecutor and is then included in the record of the case.

• If no plea agreement is reached and the defendant opts for a jury or judicial trial and is subsequently convicted, the signed record of the plea bargain negotiation should be available to the court and can be included for consideration in the sentencing phase.

One of the authors, Jim Petro, former attorney general of Ohio, became involved as a pro bono lawyer for the Ohio Innocence Project in a case in which a defendant facing rape charges had been offered a minimum sentence — less than a year in prison — in exchange for pleading guilty to a lesser charge. He refused to plead to any offense related to the sexual assault crimes, which he steadfastly claimed he did not commit. He was subsequently convicted following a jury trial and sentenced to 22 to 56 years in prison. He served twenty years before both a state court and a federal court reversed his conviction.

The difference in the penalty offered in a plea bargain and the sentence imposed if subsequently convicted at trial has been called the “trial penalty.” Considering both fairness and efficiency, while it might be reasonable to expect the sentence to be greater following conviction than that offered in plea negotiations, the two should not be wildly disproportionate. Should the sentence be twice or even five times what was offered in plea negotiations? In many cases, the factor is much larger. In this case it was twenty-two times at a minimum more than what had been offered in plea negotiations.

Would knowledge of the plea agreement offer and the defendant’s decision have been informative to this judge in sentencing? The authors believe the answer is yes. These case details are important, and they should be made transparent in the criminal justice process.

Mandatory minimum sentencing—and the resulting explosion in the prison population—has helped fuel the growth and overwhelming prevalence of plea-bargaining while increasing the authority of prosecutors without the benefit of intentional planning or oversight. Both Judge Rakoff and the article authors would like to see mandatory sentencing eliminated. While the judge thinks that this policy change is unlikely anytime soon, the article authors recommend initiating legislative revisions that would establish sentencing ranges in order to provide judges more discretion in sentencing.

The Innocence Movement has revealed that official misconduct is one of the major contributors to DNA-proven and other known wrongful convictions. Judge Rakoff is drawing attention from his stature as a federal judge, former federal prosecutor, and former criminal defense attorney, to an issue that has not received the attention it deserves: the potential for official misconduct or unfair use of discretion in cases resolved without benefit of a trial or a conviction.

Again, from the article written by C. Ronald Huff, Jim Petro, and this author:

“All of the concerns that accompany the abuse of prosecutorial discretion in the trial setting also accompany the plea bargain, which is usually conducted outside the privy of the general public. For example, confessions that prosecutors may have known were false or could have surmised were coerced have been used in trials in wrongful convictions. It is a cautionary truth that nothing prevents misconduct or misplaced use of discretion in the use of confessions and other known contributors to wrongful conviction in the now-prevailing plea bargain negotiation.”

The plea bargain process is overdue comprehensive review with consideration of potential checks and balance. Of the three proposals suggested here, two (judicial review and non-binding recommendations for the plea offer, and replacing mandatory sentencing with sentencing ranges) would require legislation to implement, but the third (including the final plea offer in the case record) could be implemented voluntarily at the request of defense counsel and agreement of the prosecutor.

Providing a judicial role in the plea offer would provide a fresh set of eyes — and a check-and-balance element to the process. More judicial discretion in sentencing would encourage fuller consideration in the penalty phase. Establishing a permanent case record of the final plea offer and response would provide helpful context at sentencing. These proposals, among other potential initiatives, would introduce long overdue transparency to a procedure that, largely by default, has nearly replaced trial by judge or jury.

¹

¹“Wrongful Convictions and Prosecutorial Discretion: Issues and Recommended Reforms in U.S. and European Criminal Justice Systems,” forthcoming in E. Plywaczewski (ed.), Current Problems of the Penal Law and Criminology, Volume 6, Warsaw, Poland: Wolters Kluwer Publishing, 2013.