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August 12, 2007

Tenth Circuit finds undue judicial involvement in plea deal

I've just seen an interesting opinion released late Friday by the Tenth Circuit concerning plea practices.  Here is the opening paragraph of US v. Cano-Varela, No. 06-8020 (8th Cir. Aug. 10, 2007) (available here):

Marco Antonio Cano-Varela entered a pretrial status conference disappointed with the plea deal his lawyer had helped negotiate and displeased with his lawyer’s provision of Spanish-language discovery materials.  He intended to request a change of counsel so that he could go to trial on drug charges. During the conference, however, the district court informed Mr. Cano- Varela that he would potentially face a vastly longer sentence if he went to trial and was convicted than if he pleaded guilty.  Two weeks later, Mr. Cano-Varela accepted the government’s plea deal.  We hold that the district court violated Rule 11(c)(1)(C)’s prohibition against judicial participation in plea negotiations by comparing, before Mr. Cano-Varela and the government had reached a plea agreement, the potential penal consequences of pleading guilty versus going to trial. We therefore vacate Mr. Cano-Varela’s guilty plea and sentence.

August 12, 2007 at 07:59 AM | Permalink

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Interesting. Thanks Doug. I have long been bothered by the practice of a Judge in North Carolina to hold pretrial settlement conferences where he and the two lawyers discuss a case and the judge tries to "facilitate" a settlement. If the lawyers reach an agreement, which is rejected by the defendant, the case is tried before the same judge and in the event of conviction, the judge sentences. Seems to me unavoidable for the judge to have in the back of his mind that the defendant should have taken the plea and there is no way in the world the judge will sentence lower than the original offer.

bruce cunningham

Posted by: bruce cunningham | Aug 12, 2007 1:50:14 PM

Mr. Cunningham writes: Seems to me unavoidable for the judge to have in the back of his mind that the defendant should have taken the plea and there is no way in the world the judge will sentence lower than the original offer.

It's an interesting point, but I wonder if it might also cut in the opposite direction. If a prosecutor was willing to let a defendant plead to 5 years in prison, and then argues for 10 years at the close of trial, then the judge would probably have at the back of his mind the idea that the prosecutor apparently thinks that 5 years is good enough to serve the theoretical purposes of imprisonment (deterrence, retribution, incapacitation, etc), and the prosecutor's arguments that anything more is necessary will be disregarded. I tend to see the original plea offer as looking more like a ceiling than a floor, to the extent that it looks like either one.

Posted by: | Aug 13, 2007 7:31:58 AM

I would be curious if the anonymous commenter can provide any backup for the proposition that "the original plea offer" is "more like a ceiling than a floor." This totally contradicts the well known fact that a defendant who goes to trial, and loses, is virtually always subjected to a higher sentence than if he had pleaded guilty.

To begin with, a defendant who goes to trial isn't elligible for the acceptance-of-responsibility credit, the safety-valve, or a substantial assistance motion. Also, many plea agreements (including the one in this post) have dismissed charges, whereas a defendant without a plea deal will face exposure to every charge the government can prove.

A plea deal involves concessions on both sides. Judges understand that if a defendant takes his chances at trial, the prosecution is no longer obligated to make concessions it would have offered had the defendant pleaded guilty.

Posted by: Marc Shepherd | Aug 13, 2007 9:48:00 AM

7:31:58 -- in my limited experience, you are correct. The judge I clerked for, though not participating in plea discussions as descibed by Mr. Cunningham, would require that he be informed of what the prosecutor had offered during plea negotiations. He would do this to limit the penalty that the prosecutors inevitably tried to impose on the defendant for going to trial.

Posted by: | Aug 13, 2007 9:49:26 AM

Mr. Shepherd, though I wouldn't talk in terms of ceilings or floors, I know that what the prosecutors had offered previously certainly was "in the mix" at sentencing.

My judge did other things as well to protect a defendant's right to trial (i.e., limit the punishment for exercising it). Another example: holding off the sentencing of co-defendants who pled until after the trial and sentencing of the co-defendants who went to trial. Aside from the obvious proportionality goals, this limited the prosecutors' ability to "hide the gun" for the guy who pled, but later enhance the sentence for the one who went to trial.

Posted by: | Aug 13, 2007 9:58:19 AM

Mr. Shepherd, as long as we're speculating on what a judge's thought process might be when he's privy to the initial plea negotiations, I thought I'd offer some speculation of my own.

The "the acceptance-of-responsibility credit, the safety-valve, or a substantial assistance motion" are all aspects of the federal system, and not necessarily relevant. For the rest, though, thanks for correcting the errors in the assumptions I made. I'd forgotten about the charge bargaining that is often involved with pretrial negotiations (does anyone know if the presence of a judge in pretrial negotiations has any effect on this?).

I'm well aware of the fact that prosecutors almost always (maybe just "always") ask for a greater sentence after a jury trial than they offer before the trial.

My point is that the judge doesn't have to give the longer sentence, and, all else being equal, if the judge knows beforehand that the prosecutor was willing to accept much less, solely for the purpose of avoiding the trouble of a trial, then I wonder how sympathetic the judge would be to the prosecutor's arguments.

The caveat in the last sentence of my comment was meant to indicate that I doubt the prosecution's offer acts as either a ceiling or floor, but to the extent it acts like either, it might end up helping the defendant when the judge is involved in the negotiations.

Posted by: Aug 13, 2007 7:31:58 AM | Aug 13, 2007 10:11:24 AM

I wonder, though, how many judges there are who try to minimize the defendant's risk-penalty for going to trial. Doug regularly posts about defendants who receive dramatically higher sentences after conviction at trial. I would describe it as one of this blog's recurring themes.

I agree that the safety-valve is specific to the Federal system. However, I always thought that acceptance of responsibility and substantial assistance provisions were merely codifications of a de facto system that always existed. All other things being equal, someone who acknowledges guilt and helps the government gets a lighter sentence than someone who continues to protest his innocence and offers no help.

Posted by: Marc Shepherd | Aug 13, 2007 10:46:33 AM

[In resp. to Mr. Shepherd's post]

Both fair points. I don't know how most state systems work, but I'd be surprised if most state systems didn't have analogues to those aspects of the federal system. On that point, though, I think details matter. If there is a mandatory minimum sentence, and a judge may only sentence below that if the prosecutor does something (files a lesser charge, makes a motion, etc.), then the pretrial offer is probably the lowest the defendant will get. If, however, the defendant's acceptance of responsibility is merely a "factor" that the judge may consider in imposing a sentence, then the way that comes into play at the close of a jury trial is that the prosecutor essentially has to make a straightforward argument that the judge should penalize the defendant for exercising his right to have a trial.

In response to your first paragraph I doubt that many judges go out of their way to try to minimize a defendant's penalty for going to trial, but I imagine that judges would be more interested in that sort of thing when they're more heavily involved in the pretrial negotiations.

As I said, this is all just speculation. I'm a fairly recent law school grad, with little to guide my intuition other than some clerkship experience.

Posted by: Aug 13, 2007 7:31:58 AM | Aug 13, 2007 11:17:58 AM

This is actually one of the most interesting topics ever. It would be a good topic for a law review note. So, kids, start your engines.

Here are my thoughts:
1) Let’s assume that judges will not deliberately impose a trial tax on defendants. And, we will assume that judges sentence based on the record before him which is developed according to the substantive law.

2) The UCMJ allows the defendant and the government to bind the judge to a maximum, without the judges’s knowledge of the cap. The judge can be bound even post-trial to such a binding. So, it might be useful to compare.

3) Some judges might deliberately be trying to avoid a “trial tax.” In the big picture this probably isn’t too apparent, but I know from personal experience that many judges feel that they need to discipline the prosecutors (e.g. keep them from “hiding the gun” as the above poster stated). But, even they will acknowledge, an increase in sentence might be warranted if additional facts are developed in the record. So, I am not 100% sure that we can characterize this is a “floor” or “ceiling.”

4) As a rule I think – yes – the judges are trying to avoid trials. They cut down on golf time, increase the chances of error, and the like. But, in felonies, even well-meaning judges know that a guilty plea (even if to a relatively low sentence) will harm someone.

5) I think the biggest problem is the “proof” problem. Pre-trial, both parties can’t really present a judge with anything besides what they hope to prove at trial. The defendant hasn’t decided whether to testify yet. Witnesses that might seem credible might be taken down on cross (and parties might not wish to reveal to the other side the cross-examination strategy), heck some witnesses might not show up. Likewise, what one side thinks is “proof” might turn out to be inadmissible. So, a judge that is trying to “broker” an agreement really doesn’t have much except the credibility and guesses of counsel to go on.

Posted by: S.cotus | Aug 13, 2007 12:32:01 PM

On (3), I regret using the words "ceiling" and "floor." As has been pointed out, they poorly describe what we're talking about, which is whether and to what extent the prosecution's initial offer affects the ultimate sentence when the judge is involved in pretrial plea negotiations and the defendant decides to go to trial and is found guilty.

The words seemed appropriate in response to Mr. Cunningham's post, but seem less so now.

Posted by: | Aug 13, 2007 2:20:00 PM

Understood. I think a lot of what is missing in the context of these discussions is that local variations in practice have a lot to do with sentencing. For instance, suppose, by local rule, a court established a mandatory “pre-trial” conference, and to take out the “floor and ceiling” issue, let’s say, it was before a different judge, who swears himself to secrecy. This judge, would not only be familiar with the guidelines (or whatever substantive law is in effect), but also know all of the recent sentencing jurisprudence in this jurisdiction. I am pretty sure that things *would* be different, as the parties would engage in a prolonged oral argument about why such a sentence is justified based on the “facts.”

Likewise, let’s say that, on appeal, a sentence higher than an offer was considered “presumptively taxing.” (Sort like higher sentences are remand are considered presumptively vindictive.) Would this change the sentences meted out below? Personally, I think this would be a great way to end any idea of a “trial tax.” Prosecutors, of course, could avoid this by: 1) making plea offers in writing and specifying their ideas of the facts; and 2) showing on appeal (if necessary) that additional facts developed at trial.

Posted by: S.cotus | Aug 13, 2007 3:10:07 PM

I'll add that people seem to be proceeding under the assumption that a "trial tax" is bad in principle.

I don't think it is. First, a "trial tax" assumes that a plea bargain is a threat rather than an offer. If the state thinks that it's absolutely necessary to put criminals A,B,C,D, and E in jail for 10 years each, but only has the resources to conduct 2 trials, it can either let 3 of them go, or it can offer all five of them less than 10 years in exchange for a guilty plea. If any of them is (1)actually innocent, and (2) of the opinion that juries generally get it right, then those people won't accept the "offer" of a light sentence. On the other hand, if they're all guilty, then society gets a net benefit by having all five criminals behind bars for at least some amount of time. It seems to me that this is a concession to the "realities" (DB's favorite word) of criminal law. The state has a duty to protect the public, and limited resources with which to do it.

As with many other harsh aspects of the criminal justice system (e.g. mandatory minimums, career criminal laws, sex offender registries), I think the "trial tax" is only bad when plea bargaining gets abused. The abuse comes in situations where the prosecutor uses plea bargains to get wins in marginal cases where, e.g. the evidence is no good, or uses it to raise the stakes unrealistically (even innocent people might plead guilty if faced with a choice between a 100% chance of 1 year in prison or a 5% chance of death/lwop), and probably in other categories of cases that aren't coming to mind very quickly.

Posted by: | Aug 13, 2007 3:28:21 PM

Yours appears to be a well reasoned analysis, 3:28:21 PM.

There is one little flaw though. Prosecutors do not have a constitutional right to conserve resources whereas defendants do have a constitutional right to trial. The threat of severe sentences if the right to trial is exercised serves as a deterrent to exercising that right, probably more so than the potential sentence itself would deter the crime itself. That is why some who are innocent plead guilty.

A better, more constitutional system, would only prosecute crimes that are worth the resources, meaning the willingness to take every one of those cases to trial. In short, the plea bargaining system permits prosecution of crimes, often with too long sentences (rock?), only because plea bargaining permits an assembly line of convictions, which is far cheaper.

Put another way, if everyone exercised their right to trial, prosecutors would have to decide which crimes are worth the resources, and of course those would only be the more serious crimes. Those are the crimes we as a society really care about. Pleas bargaining not only enables the prosecution of crimes we don't care about as much, if at all, but the threat of a severe sentence in practice works to strike the constitutional right to trial from the equation, and and the threat of a year or couple of years is severe to most people. Prosecutors can intimidate almost everyone.

Posted by: George | Aug 13, 2007 10:43:57 PM

George, it's true that prosecutors do not have a constitutional right to conserve resources. But the rest doesn't follow. I guess I have 4 points to make on that.

1. The first question is whether plea bargaining is an offer or a threat. Suppose that the prosecutor offers a defendant 5 years in jail if he pleads guilty, but threatens to seek the statutory maximum of 20 years if the case goes to trial. If the defendant is guilty and if 20 years is a "just" sentence (in terms of deterrence, incapacitation, and retribution), then plea bargaining is an offer. The state has a moral right to punish the defendant with 20 years of incarceration for his crime (upon securing a jury verdict or a plea of guilty), and it's declining to exercise that right to the fullest in order to save resources. If, on the other hand, 20 years is not a "just" sentence (suppose a just sentence would be 10 years or 5 years), then the plea bargain is a threat--the prosecutor is threatening to impose an excessive sentence on the defendant to force him to plead guilty.

If you think that plea bargaining is more often threats than offers, then either (1) statutory maximums need to be lowered, or (2) prosecutors need to make fairer "offers"--they should offer a defendant a choice between a just sentence after a jury trial and a lenient sentence for a guilty plea, instead of a choice between an excessive sentence after a jury trial and either a just or a lenient sentence in exchance for a guilty plea. (1) is not practical without making sentencing statutes more fine-grained than they are. (2) is something I don't know much about---maybe the court can play a role or maybe the voters need to be informed of which attorneys general are being fair and which are not (I realize that a likely response to this latter suggestion is that voters like to be "tough on crime" and care little for fairness).

As for the sorts of choices that would cause even an innocent person to plead guilty, part of the problem can be chalked up to the imperfections of juries, part to prosecutorial discretion, and part to the substantive laws themselves.

2. It may be true that "[p]rosecutors can intimidate almost anyone," (I doubt it), but at the end of the day, there's very little we can do about prosecutorial discretion. Prosecutors have a duty to prosecute only those who have, beyond a doubt, committed crimes. If a prosecutor can credibly tell an innocent person that he can convince 12 jurors that the innocent person is guilty, then the problem lies with both the jury system itself and with the character of the prosecutor.

3. I dispute the notion that we have enough resources to prosecute, through trials, every single person who committed a "crime[] we as a society really care[s] about." I don't know about you, but I can think of very few crimes out there that I don't "care about." Perhaps prosecutors should steer their resources away from minor drug crimes and toward other things, but that's mostly a concern of the federal government, and it's a function of executive policy, not abuse of plea bargaining. If you don't like the War on Drugs, don't vote for politicians who will continue it in its current form. Congress passes the drug laws, Clinton appointed Reno, Bush appointed Ashcroft and Gonzales. Congress and the president can steer prosecutorial resources in the right direction. The answer to misallocation of resources isn't to force the executive branch to operate less efficiently.

4. If a defendant is clearly guilty, and the prosecution is willing to offer the defendant a lenient or "just" sentence in exchange for a guilty plea, why should we force both the defendant and the prosecution to go through a trial at the taxpayers' expense?

Posted by: Bill (3:28:21 PM) | Aug 14, 2007 12:03:40 AM

3:28:21, The problem with your argument is that a “trial tax” actually is unconstitutional because it burdens the 6th amendment right to a jury trial. The "taking responsibility" guideline comes very close to doing this, but it has been read in such a way as to (so far) not directly impose on the 6th.

States do not have any rights per se, though they do have the power to tax. If a jurisdiction really wanted to put all those people in jail, they can choose to simply raise taxes (or cut other expenses) and hire more prosecutors (and their coordinate judges and defense attorneys.) But, because most jurisdictions really don’t care so much about justice as to actually pay for it, they don’t. Oftentimes more money is spent on roads, airports, and healthcare than a DA’s office. And, there is no constitutional right to infrastructure.

And, believe it or not, in some jurisdictions, a prosecutor’s office isn’t really considered as important as say, the parks department. We don’t have a constitutional right to parks (or even firemen), but without them life would be less pleasant. So, there is a “threat” that if we don’t pay for either of them, they would go away.

So, a trial tax actually is an unconstitutional allocation of the burden of having a jury trial onto whoever happens to be accused of crimes by a jurisdiction that doesn’t care about justice.

(I now see that George made some of my points.)

As a practical matter, people are intimidated by criminal charges. Even small ones. The use of prosecutorial discretion is, quite frankly, sporadic. Even within offices, there is great variance between prosecutors that see dismissing a case as a part of “justice” and those that see it as a “loss.” Moreover, in some offices (for some crimes) dismissals only take places after someone has been in jail for a long time, anyway.

Plea bargaining is an offer. Under the current regime it is not conducted with the help of the judge (in most cases) . The question, as I see it, is whether, when the offer is disclosed to the judge, whether that offer impacts the judge.

I have been thinking of various ways to deal with the issue. One, which is now achievable via judicial action, would be to create a presumption of unreasonableness if a sentence is higher than a final plea offer. It wouldn’t be a strong presumption, but a prosecutor would have to show that additional facts became available at trial that would lead to the higher sentence.

Finally, nobody is forcing people to have trials. However, the threat of a trial tax is intimidating people into not having trials.

I should note, finally, that this is totally different than offering to seek a reduced sentence in return for cooperation, which is a different issue.

Posted by: S.cotus | Aug 14, 2007 6:07:23 AM

3:28:21, The problem with your argument is that a “trial tax” actually is unconstitutional because it burdens the 6th amendment right to a jury trial. The "taking responsibility" guideline comes very close to doing this, but it has been read in such a way as to (so far) not directly impose on the 6th.

That's silly. Plea bargaining doesn't prevent anyone from exercising his right to trial. The fact that a defendant may get a really long sentence at the close of a trial if he's found guilty... well, the burden on him comes from (1) his actual guilt, and (2) the fact that the statute allows for long sentences. Both of those things "burden" a defendant's right to a jury trial, but no one's suggested that either of those things is unconstitutional.

Posted by: anonymous | Aug 14, 2007 10:11:47 AM

No, plea bargaining itself doesn’t burden the right to trial, but a sentence that is higher after a trial than the offered time (with the exception that I specified earlier) does burden the 6th amendment right to a fair trial. If the judge knows the offer and comes out and says, “Just because you subject myself and the court to a week of jury trial,” then there is a burden on the 6th amendment right to a jury trial.

In most cases, judges are not so blatant about it. (Though I wish more would be, because it would tee up the argument on appeal.)


There is no 6th amendment burden on a defendant because of a high maximum sentence. I am not suggesting that there is, and I think it distracts from the issue. In theory, a defendant is – or should be – just as eligible for the highest (or lowest) sentence regardless of whether he agreed to a plea deal.

The Supreme Court addressed this issue in a statutory context in US v. Jackson, 390 U.S. 570 (1968), where the statute itself seemed to create a trial tax of sorts (in this case death.)

The solution, as I see it, would be to simply formalize plea offers (perhaps even obtained with the assistance of another judge), and file them under seal. Then, a resulting sentence that exceeds that offer could be deemed presumptively (but not conclusively) unreasonable. Alternatively, we could amend the constitution to simply state that the sixth amendment right to a jury trial is “subject to the economic convenience of the state.” If we were really concerned about the economic burdens on the state, a state could allow criminal defendants to pay the costs of their own prosecution, up front, and thereby everyone’s interests would served. The state would not be financially burdened. The defendant would get a jury trial. Sure, poor defendants wouldn’t get a jury trial, but they probably belong in jail anyway, regardless of whether they committed “this” crime.

Posted by: S.cotus | Aug 14, 2007 11:48:54 AM

S.cotus,
"Sure, poor defendants wouldn’t get a jury trial, but they probably belong in jail anyway, regardless of whether they committed “this” crime."

Please tell me you're not serious.

Posted by: | Aug 14, 2007 12:00:02 PM

Well, I am serious in that this is the prevailing attitude amongst many people that I meet, and I think it represents the majority view. Of course, we don’t “say” it is our view, but we live in a country where people scream “look what happened to OJ” and “that type” and “he got off on a technicality” so, I am pretty sure this is what most people think. (Not that other countries are more known for their introspection.)

Whether I think this is pretty much irrelevant. I think all sorts of silly things, like people shouldn’t be punished for deciding to have a jury trial, depositions should be available in criminal trials in all matters, prosecutors and defendants should be able to bind the judge to the literal terms of an agreement (regardless of whether it alleviates the judge of the problem of holding a trial), jurors should be paid more, and someone should bring me a cop of coffee and NOW!

But, now that I think about it, I think that anyone that argues that a trial tax is valid, because it helps conserve resources should have to explain why all defendants should not be presented with a bill for the trial – in advance – so that their trial will not burden society. After all, if the state can be deprived of a conviction because indigent defense counsel isn’t paid what they demand and the state can avoid this by simply footing the bill (or having someone else do it), a defendant can avoid the same argument by simply paying the salaries of the judge, prosecutors, and jury. (I imagine that it would only be fair for the defendant to tell them who is paying their salary and give them a bonus for good work.)

Posted by: S.cotus | Aug 14, 2007 12:16:08 PM

Plea bargaining is an offer until the consequences of declining the offer are so extreme that it becomes a threat, or as you put it: "The abuse comes in situations where the prosecutor uses plea bargains to get wins in marginal cases where, e.g. the evidence is no good, or uses it to raise the stakes unrealistically (even innocent people might plead guilty if faced with a choice between a 100% chance of 1 year in prison or a 5% chance of death/lwop), and probably in other categories of cases that aren't coming to mind very quickly."

Note also that overcharging is common and both the defense and the prosecutor knows it. Then the offer can be the dismissal of the overcharged offenses and a guilty plea of the more provable charge. Even then the burden of proof is often skirted because if the defendant is placed on probation, the burden of proof for a probation violation is much lower. If it is extremely easy to be violated for a technical violation, the county saves a lot of money by bypassing a jury trial.

A better system would be one where everyone is willing to exercise their right to trial. Prosecutors would be forced to prosecute only the more serious crimes. The less serious crimes could be diverted to civil court with the same philosophy as drug courts and such. I think the crime rate, including violent crime, would drop dramatically because alternative sentencing, such as restorative justice, would work better as prevention and deterrent than the threat of severe sentences. When the state cares about the person before it is too late, the person will learn by example and will care about the state and its laws. It would not be perfect and no matter how successful, federalist would cry about the imperfections.

Posted by: George | Aug 14, 2007 1:28:56 PM

"A better system would be one where everyone is willing to exercise their right to trial. Prosecutors would be forced to prosecute only the more serious crimes. The less serious crimes could be diverted to civil court with the same philosophy as drug courts and such. I think the crime rate, including violent crime, would drop dramatically because alternative sentencing, such as restorative justice, would work better as prevention and deterrent than the threat of severe sentences. When the state cares about the person before it is too late, the person will learn by example and will care about the state and its laws. It would not be perfect and no matter how successful, federalist would cry about the imperfections."

Not bad George, not bad.

Posted by: | Aug 14, 2007 2:23:36 PM

S. Cotus, your position is absurd. The "trial tax" is just as plausibly framed as a "voluntary guilty plea incentive." The right to a jury trial is waivable, just like many (though admittedly not all) constitutional rights, and the prosecution can generally offer defendants incentives to waive their rights, so long as the waiver is voluntary and intelligent.

In Brady v. United States, 397 U.S. 742 (1970), decided 2 years after Jackson, the Supreme Court cut back Jackson and explained the voluntary/intelligent standard in the context of guilty pleas and jury trial waivers. See also North Carolina v. Alford, 400 U.S. 25 (1970).

Posted by: | Aug 14, 2007 5:45:24 PM

A better system would be one where everyone is willing to exercise their right to trial.

If criminals want to do the country a service by taking collective action and exercising their right to trial, regardless of the individual consequences, as long as they're being selfless patriots they may also wish to consider not committing crimes.

Posted by: | Aug 15, 2007 2:32:52 AM

First of all, calling a position “absurd” doesn’t really explain why it is wrong. Instead, it is your emotional reaction.

But, since everyone else seems to know what a “trial tax” is, but there seems to be some confusion, I figure I should probably define my terms for you.

First of all, what a trial tax is not. A trial tax is NOT, by itself, an agreement by a prosecutor and a defendant for a lower sentence. (The procedure as to whether this is possible differ by jurisdiction.) Prosecutors are free to enter into such agreements and courts are sometimes (but not always) free to reject them. Prosecutors can enter into these deals for just about any reason, and their discretion is not directly reviewable. Typical reasons are: 1) lack of resources; 2) cooperation with law enforcement; 3) “bad facts”; 4) avoid bad precedent on procedural matters; 5) if all parties agree as to the facts, a set of stipulated facts, and an agreement about the sentence might allow for review of a more pure record, which some lawyers actually want. (As to #4, there is considerable debate, but I am not going to touch that one for now.) .

Second of all, Brady v. United States, 397 U.S. 742 (1970)’s language about guilty plea waivers (as well as its progeny) does not, in any way, suggest that the mere exercise of the 6th amendment right to a jury trial comes at a price of a higher sentence. In Brady, the defendant claimed that his 5th amendment rights were violated because of the *state’s* (not the court’s) “to extend a benefit to a defendant who in turn extends a substantial benefit to the State and who demonstrates by his plea that he is ready and willing to admit his crime and to enter the correctional system in a frame of mind that affords hope for success in rehabilitation over a shorter period of time than might otherwise be necessary.” In Brady, the state (i.e. the prosecutor) made certain promises of clemency.

Instead, the court wrote, “Plainly, it seems to us, Jackson ruled neither that all pleas of guilty encouraged by the fear of a possible death sentence are involuntary pleas nor that such encouraged pleas are invalid wheth-involuntary or not. Jackson prohibits the imposition of the death penalty under 1201(a), but that decision neither fashioned a new standard for judging the validity of guilty pleas nor mandated a new application of the test theretofore fashioned by courts and since reiterated that guilty pleas are valid if both 'voluntary' and 'intelligent.'”

But, since prosecutors do not have the last word as to the upper-most length of a sentence, “trial taxes” are really judicially imposed.

A trial tax is an additional sentence imposed on a convicted defendant because he opted for a trial. Since few judges would be stupid enough to come out and say, “Because you exercised your right to a trial, I am sentencing you to X more years,” the only way to determine whether a trial tax is present is by comparing sentences of plea-bargained defendants to jury-tried defendants.

Now, of course, people can, and usually do knowingly and voluntarily waive their rights to a jury trial in return for some kind of favorable consideration. But, their deal is with the prosecutor, not the judge. (There are some cases where judges might make it look like they are “bargaining’ with the defendant, but these are questionable, rarely appealed, and I don’t think they are what you had in mind.)

**Finally, I should note that every now and then some public defenders officers refuse to plead people guilty on some sets of cases regardless of the “offers” or police reports because they feel their clients are not being accorded enough chance at a trial. So, it does happen.

Posted by: S.cotus | Aug 15, 2007 10:28:31 AM

But, since prosecutors do not have the last word as to the upper-most length of a sentence, “trial taxes” are really judicially imposed.

A trial tax is an additional sentence imposed on a convicted defendant because he opted for a trial. Since few judges would be stupid enough to come out and say, “Because you exercised your right to a trial, I am sentencing you to X more years,” the only way to determine whether a trial tax is present is by comparing sentences of plea-bargained defendants to jury-tried defendants.

Thanks for the clarification. I did indeed misunderstand your position. I don't know if "everyone else" did too, because only "George" has offered a response. Most people (in my admittedly limited experience) use the word "trial tax" when they're complaining about the plea bargaining process and about the conduct of prosecutors, not judges. I think most sane people would agree that no judge should ever consider the defendant's decision to exercise his right to have a trial and put the state to its evidence to be an aggravating factor, and any prosecutor who argues otherwise should be put in his place.

I don't see how comparing the sentences of plea-bargained defendants with jury-tried defendants will expose improper sentencing practice by judges. Plea-bargained defendants' sentences are supposed to be lower because the prosecutor has to offer them an incentive (in the form of a lower sentence) to plead guilty and waive the trial.

My understanding of the "trial tax" when used to complain about the conduct of prosecutors looks more like the following. Suppose that most people (including the prosecutor) agree that a "just" sentence for what the defendant did is five years.

How plea bargaining is supposed to work: Prosecutor tells the defendant that he'll push for 5 years if the case goes to trial, but offers the defendant a 2 or 3-year sentence (whether through a recommendation to the judge or "under-charging/fact bargaining") for a guilty plea.

Trial tax: Prosecutor offers the defendant 5 years for a voluntary guilty plea, and says that if the defendant opts for a trial, he'll ask for 10 years (whether through arguments for the statutory maximum or "over-charging")

Threat of trial tax used to pressure the defendant to accept lenient sentence Prosecutor offers the defendant 2 years for a voluntary guilty plea, and says that if the defendant opts for a trial, he'll ask for 10 years (whether through arguments for the statutory maximum or "over-charging").

If we've really been talking past each other, then it was wrong to call your position "absurd."

As an aside, it's been plausibly argued that the death penalty has more utility as a bargaining chip in plea bargaining than as a necessary penalty for the worst of the worst. If that's the only remaining purpose for it, then it should go.

Posted by: | Aug 15, 2007 12:09:23 PM

defendent in case, Its seems a shame that as a defendent that in less than 2 weeks is going to jury trial,has only my own research for guidance. I could only wish i had this depth of discussion about the issues that has my whole families future at hand. The need to know,seems to not even be part of what was an initial change of heart, and results in "too much inolvement by the court. The fact is the only info that looks to be of value to this defendent came from the "jailhouse lawyers" . Who needs to argue about the struggle between "roofs and carpets" when in any language says that hiding guns , resources as "factors" and all duh duh duh education of the DA attorney and judge, can be no doubt more the crime than the crimes of the defendent for not making it clear to jose at the start so the word fair could even be concidered to be used. As well the speed and cost issues may have been reduced with that same responsible rock throw. LMAO you guys are bout sum smart sum beaches aint no doubt LOL

Posted by: R.Simon | Sep 9, 2007 9:22:58 AM

I must ask you this and think i know the answer, but let us confirm. Where would I find the answers to the issues that make me as blind as chavez the no comprende defendent in this case. When it seems all to common for the defendent, to be represented by either a court appointed or payed council ,can be where I as well, find it necessary to seek answers from sources other than the one appointed or payed to do so. I have a single piece of paper that was given to me by jailers at video arraignment. It is a motion to produce. Other info is an issue that has everything to do with councils refusal to return the 1000 or more voice messages and lies when we go to court only to be told that the next date is when he would make efforts to do his job. If this is how my council feels to be called ready for trial why do i have to ask web forums and yahoo answers the questions. I cant ask the judge as it is clear he cant be involved, nor can any other attorney as long as I still have council. And if I didnt have this computer and the fears that Im in the same boat as chavez here is in I wouldnt even know it to be an option for me to ask for new council at this point so why is that . And who can tell me what else I have for concerns or avenues? and why is it that cut off dates came and went and I have filed nothing? See what it is that has you looking to be lost more so than I? place a bet on the fact I end up sitting around a concreate bench getting the facts I payed for by folks who should be the judicial body of the criminal "justice" system. will I find any one of you to be source of useful info ? whole nother bet.

Posted by: R.Simon | Sep 9, 2007 10:38:45 AM

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