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February 4, 2009

"The Plea Jury"

The title of this post is the title of this really intriguing new article by Laura Appleman available via SSRN. Here is the abstract:

For over thirty years, scholars, courts, defense attorneys and prosecutors have been deeply troubled by the guilty plea procedure, concerned about the sacrifice of rights and due process for cheap efficiency.  Although many legal players seem to dislike the plea, few have taken on its reform.

With the Supreme Court's recent iteration of the jury's constitutional rights and powers in criminal adjudication, however, a way to meaningfully reform the guilty plea has finally arisen.  I propose incorporating the community into the guilty plea process through the use of a plea jury.  With a plea jury, a lay panel of citizens would listen to the defendant's allocution and determine the acceptability of the plea and sentence, reinvigorating the community's right to determine punishment for offenders.

My goal in this piece is to restore the community jury right to its proper place by envisioning its integration into the guilty plea, theoretically as well as procedurally.  In doing so, I will illustrate not only how a standard jury would be incorporated, but also why the critical norms embedded into jury participation will help improve the existing guilty plea procedure.

February 4, 2009 at 06:21 AM | Permalink


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This seems like an interesting idea, but very aspirational, though I suppose a plea jury constituted something like a grand jury might be workable. My main concern, as a defense attorney, would be the hang 'em high impulse I often see in trial juries in my jurisdiction. Transparency is good for us all, but a good result for the client is my real aim.

Posted by: Morgen | Feb 4, 2009 11:43:03 AM

While this sounds like an interesting idea, I doubt very much that it would do anything about the long prison terms you complain about so much.

Somewhat like the tort system and medical products where the jury only sees the injury caused to the one plantif and not all the other people who were helped by it, a plea jury would only see how bad the one defendant in front of them is. I have a hard time believing that lay panels would be willing to let lots of provable charges slide just to dispose of the case faster.

Posted by: Soronel Haetir | Feb 4, 2009 11:52:14 AM

This has to be the dumbest idea I've ever heard. It gives prosecutors far more leverage over the sentence than they already have, sentences would be even longer. Soronel Haetir sums it up pretty well.

The way to fix the "long sentences" problem is to make it harder for prosecutors to ultimately get a conviction at trial. That way, bargaining power at the pre-trial stage is more equalized. Clearly making sentences more proportional to the crimes committed is not the goal of this "plea jury" suggestion, nobody would talk about "the community's right to determine punishment for offenders" who has ever held a job other than a prosecutor.

I have a simple way to accomplish this. Not only is it simple, but it's the way the system should have always worked. We need to reinvigorate the presumption of innocence and the high burden of proof necessary to convict. Two changes:

First, allow 3 verdicts - Guilty, Not Proved, and Innocent. This stresses the burden of proof and also gives wrongfully charged defendants a more meaningful way of having their actual innocence shown to (and by) the community. Prosecutors will whine, saying deliberating juries will "split the baby" and settle on the middle ground of "not proved." If the prosecutor has not convinced 12 jurors that the defendant committed the crime beyond a reasonable doubt, then it's not splitting the baby, it's the legally proper verdict. Justice is not continuing to send the jury back, with more and more Allen charges, certain of the public perception that it's better to have an innocent person locked up in jail where he'll have a bad time rather than have a guilty person out on the streets where he'll hurt and kill your children.

Second, and somewhat related to the first, a deadlocked jury should mean the proscution has not proved its case beyond a reasonable doubt, resulting in an acquittal verdict of "not proved." That's precisely what it does mean. To require the jurors to unanimously agree on a not guilty (or "innocent") verdict puts a burden on the defendant to so convince the jurors. If some jurors believe the defendant is not guilty, then it should not mean a do-over for the prosecution, it should mean an acquittal and bar to further prosecution. I would, however, consider 11-1 split verdicts of guilty if this were to be adopted.

These two changes would allow the modern criminal justice system to operate as intended; it would give the defense some teeth and make the prosecution earn its convictions. It would also give life to what is, in effect, a meaningless "beyond a reasonable doubt" burden of proof that oftentimes mirrors the extremely low burden of proof of "probable cause." If a defendant with no criminal record who takes the stand and testifies to his innocence can be convicted of crime based solely on the testimony of a police officer, with no other corroborating evidence, then "beyond a reasonable doubt" means nothing.

These changes would go a long way to moving the pendulum back to the middle - in the direction of fairness. The problem is most people like the pendulum to be all the way over on the prosecution's side. They feel safer that way... for "the children."

Another 3rd change I'd make is for there to be no "mandatory minimum" sentence for any crime. All statutory sentencing ranges should start at zero. Being given the "minimum sentence" most likely means the sentencing body felt a lesser sentence was appropriate, barring any rare coincidences (i.e. they both settled on exactly 5 years).

That being said, if the defendant and prosecutor can mutually agree on an acceptable punishment (obviously having taken into account their likelihood of success at trial and risk tolerance of a trial loss), that punishment should be imposed so long as it's not contrary to law. To say "hold on a minute" and require a "plea jury" - a group of police loving, victim-sucking, criminal-hating pedestrians to review and double-check that agreed punishment would only act to have many such agreements rejected. How can that possibly help reduce over-long sentences? We aleady entrust judges to act in this capacity. I once had a judge reject a sentence the prosecutor and my client had agreed upon because he felt it was too lenient given my client's previous crimes and inability, despite my clear instructions, to say "yes your honor/sir" when addressing the court (he kept saying "yeah" and "uh-huh" in an annoyinig tone to the judge). I don't even think a judge should have the power to reject a legal sentence agreed to by both parties.

Also, I don't think a defendant should have to say anything about the facts of the crime beyond "I plead guilty." An innocent defendant should not be forced to perjure himself by admitting the facts of the crime if he has determined it's in his best interest to plead guilty. In many cases, due to the unfairness of the criminal trial - much of which would be remedied by instilling my two proposals above - it is in an innocent defendant's best interest to plead guilty.

If you were innocent, looking at a life sentence, and offered three years (meaning less than that with good behavior), knowing that (a) cops in uniform will be testifying/testilying about your guilt, (b) that the jury has already determined that since you're there, you're there for a good reason, (c) the rules of evidence and procedure all favor the prosecution, and (d) the prosutor will seek the maximum sentence of life if you take your case to trial and lose ... it is perfectly rational to decide to plead guilty, despite your actual innocence. Nobody should be denied the right to make that decision, or forced to admit facts, under oath, which are not true.

Posted by: BruceM | Feb 4, 2009 1:05:25 PM

BruceM: that's a fabulous idea you have!

Posted by: Bill Newmiller | Feb 5, 2009 1:02:20 AM

Thanks, I know.... it's so logical I don't see how we ever came to having a system that requires unanimous not guilty verdicts with mistrials and repeated do-overs. As for the 3 verdicts, many other countries more sophisticated and intelligent, more dedicated to justice, already do this. I'm just suggesting that we copy them.

Right now, a chimpanzee can prosecute and convict any criminal defendant. Acquittals only come from random quirky jurors - if you're lucky enough to have a Henry Fonda (from 12 Angry Men) on your jury then you have a chance of acquittal - but there are only a few such people out there, and these days they'll rarely get on a jury in the first place. As such, the only real bargaining power a criminal defendant has is threatening to take up the prosecutor's time by making him/her take the case to trial - that means doing more work but they're all paid the same salary regardless of how many hours they stay up writing a really mean, nasty, vicious closing argument. So, pleading out saves the prosecutor time, and their dockets are assigned based on the presumption that 90+ percent of their cases will, in fact, plead out. Threatening to waste the prosecutor's time is a double-edged sword, though, because by wasting the prosecutor's time you're also wasting the JUDGE'S time. When a defendant loses at trial, the prosecutor and judge both see it as wasted time - it all could have been resolved without the hard work, focus, and inconvenience of a few days/weeks being tied up in a trial. So the prosecutor is mad, and the judge is mad. The federal sentencing guidelines come right out and say you get up to 2 points of "credit" by pleading guilty early and not putting the government to its burden of proof and forcing the prosecutor to prepare for trial. Which means you get punished for going to trial.

I think a defendant should have more bargaining power than making a threat against the laziness of the prosecutor which also acts as a threat against the court's valuable time. "Judicial economy" and "judicial resources" are constantly being whined about, and used by the prosecutor as an excuse not to let the defendant put on or respond to certain evidence at trial (it never works the other around because the prosecutor is the one with the burden of proof).

Posted by: Bruce | Feb 5, 2009 5:19:32 AM

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