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March 12, 2014

"Judges as Framers of Plea Bargaining"

The title of this post is the title of this intriguing new paper by Daniel S. McConkie Jr. now available via SSRN. Here is the abstract:

The vast majority of federal criminal defendants resolve their cases by plea bargaining, with minimal judicial input or oversight.  This presents significant issues concerning transparency, fairness, and effective sentencing.  Federal prosecutors strongly influence sentences by the charges they select.  The parties bargain informally outside of court and strike a deal. But defendants often plead guilty without a realistic understanding of their likely sentencing exposure.  Instead, they plead guilty based on their best guess as to how judges will resolve certain issues and their own fear that they could get an unspecified but severe post-trial sentence.  The judge is often reluctant to reject the parties’ deal, partly because the judge may have little information about the case, and partly because the judge lacks the resources for courtroom-clogging jury trials.  What is needed is a public, court-supervised, advocacy procedure early in the case to guide the parties in considering key sentencing issues and fashioning a just and reasonable sentence based on the judge’s feedback.

This article explores a proposed procedure that would do just that.  Early in the case, and upon the defendant’s request, the parties would litigate a pre-plea motion procedure similar to sentencing proceedings.  As part of those proceedings, a pre-plea, presentence report would be prepared with input from the parties.  The motion would educate the judge about the case and enable the judge to issue two indicated sentences: one for if the defendant pleaded guilty as charged, and another for if the defendant were convicted at trial.  This increased judicial participation through a regularized, advocacy procedure would allow judges to help frame the parties’ discussion of sentencing issues and likely sentencing consequences earlier in the case, all without involving the judge in the parties’ plea discussions.  Several benefits would flow from this: the plea bargaining process would become more transparent, resulting in increased public accountability; the defense attorney would have greater incentives to properly investigate and present key issues; and the defendant could make a more informed decision about whether and on what terms to plead guilty.  In short, plea bargaining is here to stay, but criminal justice would be greatly improved by bringing more of the plea bargaining process back into the courtroom where the judge could help frame the key issues for the parties.

March 12, 2014 at 12:52 AM | Permalink


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Mr. McConkie was an AUSA. This fact surprised me. How can he not know the utter legal and procedural insanity of his idea?
What judge is going to entertain this? Why not have a "trial" before the Indictment is sought to see what charges are best taken?
Here's what would be accomplished, should this idea ever be put into action:

Every guilty plea taken, AFTER a representation from the Court that a higher sentence is indicated if there is trial, is rendered constitutionally suspect.
If the spread between plea sentence and trial sentence is limited, there will be a sharp uptick in trials (why not take a shot at acquittal or mistrial if I'm only risking a few more months?).

Oh Lord, the increase in appeals arising out of all of this.

Posted by: Wayne-O | Mar 12, 2014 1:22:42 AM

"Every guilty plea taken, AFTER a representation from the Court that a higher sentence is indicated if there is trial, is rendered constitutionally suspect."

Does that mean the truth is constitutionally suspect? I don't mean to be flippant but that is what it sounds like. And would more trials be a bad thing?

Posted by: George | Mar 12, 2014 2:32:39 AM

I'm talking about the voluntary and uncoerced requirement. Even with a perfect colloquy, defendants will claim they were coerced by the fact that they judge told them they would get more time if they went to trial. This will also be used to claim a chilling effect on a defendant's willingness to exercise their right to trial. I'm not saying those pleas would or wouldn't be unconstitutional. I'm saying I've seen enough appeal arguments trying to undo a guilty plea even without this proposed procedure.

I personally think more trials would be a good thing in theory. In practice, I cannot imagine any player in the Court system wanting more trials as a practical reality.

Posted by: Wayne-O | Mar 12, 2014 2:48:05 AM

Thanks for the clarification, Wayne-O.

Posted by: George | Mar 12, 2014 3:00:11 AM

The proposal seems to be an attempt to get sentencing bargaining and certainty about the options without having sentencing bargaining and a trial.

The nature of a trial is that it is only partially predictable. Maybe the jury decides that you brought the gun with you in your car because you were planning on killing the person that you were visiting or perhaps they believe that you always carry a weapon.

Likewise, if you do not allow the parties to agree on a sentence as part of the plea deal, the outcome of a sentencing hearing will depend upon how the judge views the evidence and arguments presented.

As someone who has practiced in a state in which some judges allow sentencing bargains and other judges refuse to accept a deal that agrees to a specific sentence, both sides have more certainty as to the sentence that will be imposed if the judge accepts sentencing bargains, but there is still some uncertainty as to whether the agreed disposition is better or worse than what will happen after a trial. That is the nature of the beast -- the lack of psychic ability to see the future. If you think that judges should control sentencing -- rather than that being a matter for negotiations between the prosecution and defense -- you will have more uncertainty.

Posted by: tmm | Mar 12, 2014 10:30:46 AM

Quite a few state Judges will say they never punish a defendant for exercising his right to trial, so I could see them having a reluctance to give two separate numbers for trial vs. plea. In the couple states that have jury sentencing, this is also out the window.

I agree with the premise, though, that there's too much uncertainty with what a Judge will give. Experience combined with sentencing guidelines help (is this a Judge who always follows them or does he or she often depart in a certain direction?). But far too often, there's the discussion after the fact of "should I have just gone to the Judge?" Given that very few cases end up in front of a Judge via plea without offer and that the facts of cases can differ significantly enough, predictability is hard. So, while there are huge practical problems with this (increasing court appearances, lengthening docket times, forcing the Prosecution to reveal its case earlier than it is prepared to), it does make quite a bit of sense.

Posted by: Erik M | Mar 12, 2014 10:37:44 AM

I think the point is not that the defendant's only choice would be between X years pleading guilty as charged and Y years if convicted at trial (assuming no acquittal or conviction on a lesser-included charge). The choice is between one of those two options and *Z years* that the government is offering *on a plea to a reduced charge*. The point of the proposal is that it lets the defendant make a more rational/informed choice as to whether to take a plea or not by quantifying the difference in expected outcomes for the various options presented to him or her. (It also effectively sets a starting point for negotiation -- the X years the judge will give if the defendant simply pleads guilty as charged.)

For example, if I am charged in some state courts with, say, aggravated burglary, the sentencing range can be pretty broad -- something like 10 years to life. That creates a lot of uncertainty and a real challenge for plea negotiations. My lawyer may suspect that because this isn't a very aggravated case, a sentence of no more than 15 years is expected if convicted as charged. So I may be inclined to reject a plea offer of 18 years. But the decision is still difficult, because if my lawyer is wrong, I could end up doing life (or 30/40/50 years) when I could have pled to 18 years. (Indeed, I have seen many cases of people doing life, or even on death row, after rejecting plea offers of 5/10/20 years.) Terrance Graham of Graham v. Florida is a good example of this. If I recall correctly, in that case the probation department recommended like 4 years, and the State asked for something like 9 years, but the judge unexpectedly imposed life. Of course that wasn't a guilty plea situation, but the facts of that case do demonstrate the difficulty of predicting what a sentencing judge will do in the absence of any direct information.

Now, by contrast to the above scenario, say I have one of these "pre-plea procedures", and I find out that the judge would sentence me to 20 years after a trial or 15 years on a plea (with the 5 year difference representing a credit for accepting responsibility, not a trial penalty -- although I agree there would be challenges to this already controversial and tenuous distinction). Now the State won't even bother to offer 18 years on a lesser charge (unless there is a major difference in collateral consequences between the two charges). They may start at 14, or 12, or whatever. And then I can decide -- would I rather be convicted of a lesser degree of crime and do 14 years, or go to trial and risk the 20 years (taking the 15 years and pleading to a greater degree of crime would be off the table). Just as under the current system, this decision ultimately will depend on whether I'm actually guilty/convictable on the greater offense, my tolerance for risk, etc. But I can make a much, much more informed decision. Moreover -- and this is important -- under the proposed system, someone who is innocent will generally have an incentive to go to trial, because the worst-case penalty will be quantified and the low probability but high risk possibility of having an outlier sentencing judge will be eliminated beforehand (or confirmed, allowing those rare defendants to at least avoid the risk by taking a plea). Also, one would hope that cases against innocent people generally have weaker evidence and a larger chance of acquittal, so that will be another factor tilting toward trials for innocent defendants. Worst case, the State will have to offer a really, really good deal to get an innocent person to plead guilty. Contrast this to now, where it may be perfectly rational for an innocent person to take a plea to 18 years under the above scenario, when facing a substantial, but also unquantifiable, risk of a life sentence if he or she goes to trial.

In sum, the problem of massive government leverage inducing wrongful and/or excessive pleas from defendants is a real one, and I do think that this proposal is focused on the right aspects of the problem -- (1) the availability and timing of information about possible sentencing outcomes; and (2) the availability and timing of information about the strength of the defense/state cases. I don't know that this particular solution is realistic from a constitutional/procedural/practical perspective, but something has to be done.

Posted by: anon | Mar 12, 2014 10:47:55 AM

I'd also like to point out that a person does not have a right to q trial by judge, only jury. Often those that wish to offer up entrapment defenses, especially on drug or sex crimes, will want to go in front of a judge to avoid "the mob" judging them. However, under Federal Rules of criminal procedure Rule 23, the prosecution must agree to the bench trial.

I, personally, tried to have my federal trial in front of a judge, but the prosecution blocked it. Why wouldn't they in emotion laden cases with sparse facts? I'll never understand why this rule exists. AUSAs have no "constitutional right" to a jury trial.

Posted by: Angry | Mar 12, 2014 11:25:52 AM

The article misses the elementary point that the whole purpose of plea negotiations is to AVOID litigation. Negotiation that IS, for any practical purpose, litigation -- as it would be under the proposal -- incurs the very costs the parties are seeking to avoid.

Posted by: Bill Otis | Mar 12, 2014 12:09:54 PM

This statement is absurd: "But defendants often plead guilty without a realistic understanding of their likely sentencing exposure."

Posted by: AUSA12 | Mar 12, 2014 12:46:17 PM

AUSA12 --

I fully agree, but it's not as absurd than the other statement we see time and again on this site: Defendants often plead guilty although they're really innocent.

Posted by: Bill Otis | Mar 12, 2014 12:55:53 PM

Angry --

Do you think anger is the best response to your situation? Do you have any questions or doubts about your own behavior?

And what was your behavior? Did you do the acts alleged in the indictment? What were they? Why didn't you just walk away when offered the opportunity to do something you had to have known was both illegal and morally wrong?

Why do you focus on the asserted (but not specifically described) behavior of others, but give yourself a free pass?

An attitude like yours is one of the reasons I have grave doubts about rehabilitation. When the defendant never thinks he did anything wrong, why WOULD he want rehabilitation? In his view, as apparently in yours, there's nothing that needs rehabilitating.

Posted by: Bill Otis | Mar 12, 2014 1:17:30 PM


It wasnt put in front of a grand jury where my attorney could have shown a light on the agents actions, but instead done by criminal complaint. I'm not exactly going to fill you in on my situation, as I don't really respect you as a man at all. You are a politician at heart, full of rhetoric, always looking not for truth, but how to "win".

I think of you as the type of man that turns down Morgan Freeman's parole in Shawshank Redemption, spouting "I'm just not sure about rehabilitation" whenever someone is upset by something a prosecutor or law enforcement did. This might sell well to a group of white suburban mothers, but it does not sell well to the hundreds of men I met in a federal prison, not all of whom were guilty.

When the time comes, likely after you dinosaurs of the "tough on crime" era leave this earth, the millennials can clean up the mess that filled American courtrooms, Congress, and prisons with rhetoric and nonsense. There are a lot of men and women behind bars, offered very little by way of rehabilitation, that are there for little reason other than a Congress that can't stop voting for manditory minimums, and prosecutors trying to make press releases.

Are there victims you guys help in this world? Yes. But the victimless crimes should not involve people going to jail for decades. And that is the reality in prison: not everyone is a kingpin, but they get treated that way.

Posted by: Angry | Mar 12, 2014 3:02:37 PM

Angry --

"It wasnt put in front of a grand jury where my attorney could have shown a light on the agents actions..."

Defense attorneys are not allowed to appear before grand juries, which are ex parte proceedings. And the agents' actions would not have been an issue in any event, as the grand jury sits to determine probable cause, not to hear affirmative defenses. Those are reserved for trial.

"I'm not exactly going to fill you in on my situation, as I don't really respect you as a man at all."

I haven't asked for your respect. I did ask for your recounting of what you did that got you in trouble, and you refuse. Just to be clear, the reason you refuse has nothing to do with me. The reason is that an honest account of what you were up to would put you in a bad light.

"This might sell well to a group of white suburban mothers, but it does not sell well to the hundreds of men I met in a federal prison, not all of whom were guilty."

Well, they weren't guilty according to what they told you, sure. But surely you had some doubts about whether you were getting the full, or the truthful, story, right?

And will you tell me what you have against white suburban mothers? That they're mothers?


Or white?

As for my doubting rehabilitation: Let's take the case close at hand, that being yours (notwithstanding that you stonewall relating what you did). Do you view yourself as rehabilitated? You sure don't sound that way, but I will stand to be corrected.

"When the time comes, likely after you dinosaurs of the "tough on crime" era leave this earth, the millennials can clean up the mess that filled American courtrooms, Congress, and prisons with rhetoric and nonsense."

What those of us involved with determinate sentencing actually did was play a part, whether large or small, in reducing crime by 50%. Do you regard massive crime reduction as a "mess?"

"There are a lot of men and women behind bars, offered very little by way of rehabilitation..."

It is not up to the taxpayers to change the attitude of criminals. It is up to those whose attitudes need changing. And the futility of even trying to change prisoners' attitudes is vividly illustrated by your own posts: Nothing is your fault, everything is someone else's fault.

"...that are there for little reason other than a Congress that can't stop voting for manditory minimums, and prosecutors trying to make press releases."

I was a prosecutor for 18 years and never sent out a press release nor even participated in a news conference.

Now I'll ask again: What did you do? Were the accusations true or false? Who is primarily responsible for your behavior? Do you have any second thoughts about it? Do you view yourself as rehabilitated, or even as in need of rehabilitation? Do you view your crime(s) as morally wrong? Would you do them again?

Posted by: Bill Otis | Mar 12, 2014 3:37:12 PM

My crime? Being not white in my "high crime zone" in the South. I had never committed a crime short of possession of pot (they of course needed to search my mom's apartment to locate evidence of the crime they manufactured). This "proved my predisposition", better not take it to trial...

I wasn't innocent, but I was entrapped, and knew I needed a judge instead of a jury trial. Put in a motion, prosecutor opposed, motion denied. All the cards are in prosecutors hands, and judges tyrn the other way from finding entrapment by law unless the circumstances are outrageous.

The system is broken, and will continue to be broken as long as there's no accountability for the long term consequences for their actions. My actions, and therefore culpability, were overstated, so no, I don't "feel bad" on a moral level for what I did, because itwas all the product of a bored federal agent, and a prosecutor that signed off on it.

Posted by: Angry | Mar 12, 2014 4:49:52 PM

Bill, I agree that part of the reason is to avoid litigation. However, there's two separate issues that have to be kept separate: Avoiding the uncertainty of litigation and avoiding the time and expense of litigation. This procedure wouldn't harm the latter (I'd argue it probably would be a much quicker procedure, likely by proffer, but it would still require time and effort to prepare and decide). However, if the goal is to reduce the uncertainty of a verdict on the merits in a close case, plea bargaining remains a useful tool.

I agree that, in slam dunk cases where the only options are throw yourself on the mercy of the prosecutor or Judge because they'll appreciate resolving it quickly and efficiently, this procedure would essentially end that option. In those cases, the "discount" for not going to trial would be fairly minimal. But in cases with issues on the merits, suppression issues, etc., there are still incentives to plea and reach an agreement below what the Judge would decide.

Posted by: Erik M | Mar 12, 2014 6:55:27 PM

Angry --

You answered a very few, selected questions. But there are others I think are important, such as:

-- Who is primarily responsible for your behavior?

-- Why did you just credulously accept your fellow inmates' versions of their supposed innocence?

-- Why do you view the system as broken, when it has helped reduce crime by 50% in the last generation?

-- Why, even in your own case, do you regard it as broken? Is it really broken to convict those who intentionally did the acts with which they are charged?

-- Why do you criticize white suburban mothers? Do you dislike them because that demographic commits proportionately very little crime? Why is that a bad thing?

-- Most importantly, couldn't you have just said to the agent who allegedly entrapped you, "No thanks. So long." That seems like a pretty easy thing to say. If you'd said it, it wouldn't matter what color you are.

Posted by: Bill Otis | Mar 12, 2014 10:58:13 PM

How does this proposal get around the problem of the judge giving an "advisory" opinion, which is generally prohibited? The judge is predicting, perhaps based on very incomplete information especially if done early in the case, how he/she would rule upon a full presentation of the evidence at sentencing. Also, if additional facts are discovered between the advisory opinion and actual sentencing that change the judge's analysis, is there a problem with the validity of the advisory opinion? Any advisory opinion by the judge would come with a lot of caveats.

Another problem is whether a judge who gives this advisory opinion can be the one who ultimately sentences the defendant. On the civil side, the judge who conducts the settlement conference can't be the judge who tries the case. Does the judge learn any information that a sentencing judge shouldn't normally have?

Finally, how far can the judge go in participating in plea negotiations? The general rule is that judges don't do that, largely for the reason that a defendant would be unduly swayed by judicial pressure. For example,a big factor in the plea vs trial decision is the chances of an acquittal vs the chances of conviction on some or all of the charges. Will the advisory judge opine on that?

Fundamentally, it seems to me that an underlying premise of this proposal is that defense attorneys don't give the defendant a good evaluation of the benefits/risks of plea vs trial and likely outcomes, so that the defendant can make an informed choice. Perhaps the solution lies in making sure that the defense attorneys have all the available information, including information about the judge's sentencing proclivities, to adequately advise their client.

Posted by: Webb Wassmer | Mar 13, 2014 9:17:54 AM

--"This statement is absurd: 'But defendants often plead guilty without a realistic understanding of their likely sentencing exposure.'"

I don't think that's absurd at all. Maybe in the federal system where you can usually have at least a good ballpark idea of what the guideline range would be after conviction. But in some state systems there can be very broad statutory sentencing ranges that aren't effectively cabined by guidelines. And, judges can be pretty unpredictable (as in the Terrance Graham case). So, while you might have a *technical* understanding of your sentencing exposure (anything within the statutory range), you may not have a *realistic* understanding.

For example, maybe the range is 10-life, but in fact the judge is already certain from the indictment and pretrial proceedings that he or she would never go above 20 years in this case. If you know that, then you have a *realistic* understanding of your exposure. If you don't know that, then you have to account for the risk of a life sentence (or 50, 40, 30 years, etc.), and thus are making important decisions based on an *unrealistic* understanding of your exposure.

This is not to say that a defendant has any vested right in knowing in advance his realistic, as opposed to formal, sentencing exposure. It is only to say that I think that the statement you quoted is not really absurd at all as a description of the current system.

Posted by: anon | Mar 13, 2014 5:14:50 PM

Webb Wassmer --

A thoughtful post indeed.

Posted by: Bill Otis | Mar 14, 2014 10:23:08 AM

Here is the way it should work, I think. The problem is captured in the form of a jeopardy argument, which has two premises and a conclusion. The person in question committed a crime (Priming Premise), which may result in a mandatory minimum. That crime is the core part of a criminal offense (Base Premise). Therefore, the person in question is a criminal offender (Conclusion) who is at risk of committing another crime.

First a prosecutor primes the jeopardy argument, which may be plea bargained. Then a judge frames the jeopardy argument at the time of sentencing. A sentence is the core part of a correction plan. It consists of responses to each premise and the conclusion. A correction plan also has a number of satellite features that are added by the correction agency. In other words, a correction plan is modular.

Posted by: Tom McGee | Mar 14, 2014 12:39:14 PM

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