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March 21, 2022

"Punishment without Trial: Why Plea Bargaining is a Bad Deal"

Go directlyThe title of this post is the title of this exciting panel discussion being hosted this week by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law.  It is also the title of this book authored by Professor Carissa Byrne Hessick, and she is the featured speaker at the event.  But, as detailed in this event description, the panel is full of headliners: 

When Americans think of the criminal justice system, they picture a trial. The right to a trial by jury is supposed to undergird our entire justice system – but that bedrock constitutional right has all but disappeared thanks to plea bargaining. In 2018, more than 97 percent of defendants pleaded guilty.

Join the Drug Enforcement and Policy Center for a panel discussion featuring Professor Carissa Byrne Hessick on how plea bargaining undermines justice. In her latest book, Punishment Without Trial: Why Plea Bargaining is a Bad Deal, Hessick makes the case against plea bargaining and illustrates why and how we need to fix it if we ever hope to achieve lasting criminal justice reform. 


Carissa Byrne Hessick, Ransdell Distinguished Professor of Law, University of North Carolina School of Law; Director, Prosecutors and Politics Project
The Honorable Justice Michael Donnelly, Ohio Supreme Court
Ric Simmons, Chief Justice Thomas J. Moyer Professor for the Administration of Justice and Rule of Law, The Ohio State University Moritz College of Law
Michael Zuckerman, Visiting Assistant Professor, The Ohio State University Moritz College of Law

About the event

This is currently a hybrid event and registrants may attend in person or via Zoom. Note however, that depending on university guidance, the event may become online only. Both in-person and virtual attendees should register via the Zoom registration form and select their attendance preference there.  For in-person attendees, the event will be held in Room 244 Drinko Hall, 55 West 12th Avenue, Columbus, OH 43210-1391, and boxed lunches will be available to take away following the event.

March 21, 2022 at 12:02 PM | Permalink


One prosecutorial leveraging technique that I personally experienced in a Kentucky state (District) court was a prosecutor offering me a 6 month plea deal on a misdemeanor charge, after I had already served 7.5 months in jail. I would have had to wait 2 more months in jail to get a jury trial. Like many, I just pleaded guilty to get out of jail and get back to my life in the free world. There was no justice at all. In that case, I had to file a pro se Motion for Habeas Corpus to get a Circuit Judge to Order the District Judge to set a money bond for me, after 5 weeks in jail. The District Judge was so arrogant that he did not attend the Circuit Court hearing, even though he was the named Respondent (and he sent no attorney to represent him either). He was somehow surprised that the Circuit Judge granted my Writ of Habeas Corpus and Ordered him to set a bond for me. The District Judge then retaliated against me by setting a $5,000 bond (which I could not pay), with home incarceration and electronic monitoring, and I could only leave home to visit my attorney's office or come to court. He refused to permit me to work (if I could have posted the $5,000), so I couldn't even pay my rent or car insurance. Thankfully, that District Judge retired from the bench 3 years ago now.

Posted by: Jim Gormley | Mar 21, 2022 12:25:38 PM

If anyone is interested in a presentation of both sides rather than just one (which is open to doubt in this setting), the FedSoc presented a debate here: https://www.youtube.com/watch?v=3i92-ojQ8to. The participants were Clark Neily, Vice President of Cato for criminal matters, and me. The moderator was Justice Clint Bolick of the Arizona Supreme Court.

Just three suggestions in the interim: First, if you think plea bargaining is a bad deal, don't do it and make the government meet its high burden at trial. Second, tell the truth, just as you want others to do -- it you're not guilty, say so. Third, read Rule 11, Fed. R. Crim. P. and digest the numerous safeguards it requires before a negotiated plea can be accepted by the court (which can then reject the bargain anyway even if all the safeguards are met).

Posted by: Bill Otis | Mar 21, 2022 2:50:12 PM

@Bill Otis: I wonder if you would agree that the "trial penalty" exists; and, at least in principle, it could at times be so steep as to be unjust?

What constitutes "too steep" is a whole other question, and I personally have no issue with most cases being resolved with pleas.

Posted by: Marc Shepherd | Mar 21, 2022 9:19:19 PM

FYI, I listened to about 2/3rds of Bill's video. Good to see him in action.

Posted by: Marc Shepherd | Mar 21, 2022 10:27:18 PM

Like Marc, I wonder if Bill would be willing to take a stance on how much of a "plea discount" is generally appropriate in a well-functioning criminal justice system? I think pleas have a role in our system, but think there are some reasons to be concerned that they can play an outsize role at sentencing. Surely whether the defendant puts the government to its burden at trial should be a less important sentencing factor than the degree of wickedness of what the defendant has done, the harm caused to society by the defendant's crimes, the defendant's prior criminal record, and so on.

For instance, the UK system has a maximum 33% discount available (for very early pleas) -- that seems more than adequate to persuade people who are slam-dunk guilty to plead out. To place that in context, that's roughly the distance between a criminal history category of IV (which is pretty substantial) and a CHC of I (0-1 criminal history points) in the federal guidelines.

Plea bargaining opponents, to what extent can you defend your stance without assuming the number of criminal charges should go down, or is this advocacy inextricably linked to the idea that we should have fewer prosecutions? The criminologists tell us that the likelihood and speed of punishment have a stronger deterrent effect than its severity. And I feel that abolishing pleas will create great public pressure for long probation/parole sentences as a matter of course (so we can skip the trial if the defendant commits a new crime and just deal with the new offense as a probation/parole violation without the resource commitments or protections of a trial).

Posted by: Jason | Mar 21, 2022 10:34:28 PM

Marc Shepherd --

Whether called a trial penalty or a plea bonus, it's the same thing, to wit, a defendant who truthfully admits his behavior is both more honest and a better bet for rehab than one who doesn't, and therefore should get a lower sentence. I have no problem with that. Indeed it's nothing but common sense.

Could the trial penalty/plea bonus at least theoretically, at times, be so steep as to be unjust? Probably so, but with the qualifications (1) perfection is unattainable in this and every other system; and (2) the injustice is abated if the defendant knew up front what the difference could be and made his own decision to roll the dice.

Of course the better answer to all this is to refrain from the behavior that will present you with the trial vs. plea choice. In other words, don't sell fentanyl, don't have sex with five year-old's, don't swindle Medicare about of a few million bucks, etc., etc. The problem begins with the defendant's choices, not ours, and this fact needs to be remembered rather than blinked.

Posted by: Bill Otis | Mar 21, 2022 10:34:34 PM

Marc Shepherd --

Thanks for watching most of the debate. It looks in the video as if I don't have horns, but I was actually just hiding them. Doug knows how sneaky I am.

Posted by: Bill Otis | Mar 21, 2022 10:38:21 PM

Jason --

Good questions. In particular, I agree with this: "Surely whether the defendant puts the government to its burden at trial should be a less important sentencing factor than the degree of wickedness of what the defendant has done, the harm caused to society by the defendant's crimes, the defendant's prior criminal record, and so on."

Just so. The basic thing we want to do with sentencing is have a sober and proportionate response to the crime, with due although not obsessive regard for the defendant's history and attitude.

The question whether to place a limit on the plea discount, and if so how much that should be, is really tough. I have no experience with it. I'd like to see some scholarship on it before going in one direction or the other.

Your final paragraph is also quite interesting. Plea bargaining isn't going away because the defense bar lives off it and the government depends on it. Judges like it too because their workloads otherwise would be out of control. And defendants like it because they typically get a pass on a number of counts they'd be ice-cold on at trial, plus they get a favorable (or at least not vastly unfavorable) sentencing recommendation. No practice could be as prevalent as plea bargaining has become unless each of the institutional actors got something important out of it. They do, so it's going to around for a good long time.

Posted by: Bill Otis | Mar 22, 2022 12:48:18 AM

The plea bargain is not a new idea. What IS relatively new (last half-century) is that upwards of 97% of cases are resolved that way. In the video, Bill Otis referred to the higher rate of traditional crimes in the 1960s and '70s: he mentioned murder, rape, burglary, car theft, assault, etc.

But there has been an explosion of new federal crimes created over the last 50 years. A Congressman can brag to his constituents that he's tough on criminals when he votes a new crime or a steeper punishment into the federal code, even though the behavior was already a crime at the state level.

I recall Justice Scalia testifying before a Congressional committee about the immense burden on the Federal courts, because the government keeps expanding the criminal code. Generally, Congress has not created new judgeships at the same pace as it has created new crimes.

In an imaginary world where plea bargains were suddenly illegal --- I am not suggesting that will happen, or should --- I doubt the government would be willing to fund enough judges and prosecutors to try all of those cases. Instead, the government would simply have to be a lot more selective about what it chooses to prosecute.

Perhaps the federal government would leave more cases to the states, as perhaps it should anyway.

Posted by: Marc Shepherd | Mar 22, 2022 8:28:45 AM

Those of us in the state system are less than thrilled with the process by which federal prosecutors choose which, otherwise, state offenses become federal offenses.

The real issue for trial penalties vs. plea bonus is the existence of lesser-included offenses and wide ranges of punishment. Generally speaking, defense attorneys and pro-defense groups like lesser-included offenses and wide ranges of punishment. The existence of a lesser-included offense (e.g. simple possession vs. "trafficking") caps the potential punishment facing those who have committed less serious offenses. The existence of a wide range of punishment allows judges to "individualize" sentences. But these two factors make it easy to incentivize or over-incentivize a plea of guilty.

For example, in a homicide case in which there is some evidence of self-defense, a possible plea offer might be to voluntary manslaughter (basically recognizing a claim of imperfect self-defense). But if the case goes to trial, maybe the jury credits the self-defense evidence and acquits or the jury finds that the self-defense evidence is pure fiction and finds the defendant guilty as charged or perhaps the jury concludes that the appropriate verdict is voluntary manslaughter. Without knowing all of the evidence and jury tendencies in the jurisdiction, it is impossible to tell if voluntary manslaughter is the "right" result or an over-generous offer from the State to give an incentive to plead guilty (and avoid the slim risk of an acquittal) or the State trying to find a way to salvage a case that shouldn't have been charged with the risk, however, slim of murder pressuring an innocent defendant to plead guilty. We want something like voluntary manslaughter because we believe that a homicide committed under the influence of sudden passion is less serious than a "cold-blooded" homicide, and we would rather have a jury make that decision than the judge simply considering sudden passion as a mitigating factor at sentencing. But the existence of the lesser shifts power to the prosecutor who decides whether the lesser charge is appropriate and can make it very hard for a defendant to go to trial on the greater charge rather than pleading to the lesser.

Posted by: tmm | Mar 22, 2022 10:49:41 AM

I am aware of a Mexican drug Lord who was delivered to the DEA y local police and prosecutors in Belize, and then flown to the S.D. of N.Y. for indictment and arraignment. For sentencing purposes, his drug quantity was about 400,000 kilos of cocaine. The Government wanted him to plead guilty and agree to debrief. But this Drug Lord knew that if he debriefed, other Drug Lords would kill his entire family. So, he eventually made a blind guilty plea to the Court, without any agreement with the Government. He wanted his 3 points for timely acceptance of responsibility, to avoid a life sentence. The DOJ actually flew an attorney to NYC to argue that he shouldn't get his acceptance of responsibility unless he agreed to debrief. The District Judge (since elevated to the 2nd Circuit) granted to 3 points down for acceptance of responsibility, and explained to the DOJ attorney that the rules plainly do not require the defendant to agree to debrief with the Government (DEA). The Defendant ended up with a 38 year sentence (he was about 35 at the time). If the Government's suggested rule required debriefing, then the Judge suggested the Court would end up having to try all of the big drug cases, because no pleas would be possible. The defendant's punishment was that U.S. Agents advised his family that they would not be permitted to enter the U.S. or visit him in prison during his long sentence.

Posted by: Jim Gormley | Mar 22, 2022 11:41:24 AM

For the precise details of the case I described about, take a read thru United States v. Teyer, 322 F. Supp.2d 359 (S.D.N.Y. 4/29/2004) (Gerard E. Lynch, D.J.)

Posted by: Jim Gormley | Mar 22, 2022 11:50:28 AM

To further respond to Jason's suggestions on a cap, I am seeing two issues.

First, I am unclear how a cap would work with charge bargaining. As noted above, there are a significant number of cases in which the government has sufficient evidence to get to the jury on a higher charge, but there may be some evidence supporting the defense, a risk of witnesses not cooperating, and the risk of jury nullification (which varies by offense). If making a plea offer to a lesser-included offense requires you to dismiss a charge, then it becomes less likely that the government would ever offer to reduce the charges in plea negotiations.

Second, and this is where the devil is in the details, how the cap works with extended negotiations would have to be worked out. While it doesn't happen in every case, I have had my fair share of cases in which there have been several rounds back and forth of negotiations. If the cap is based on the initial offer by the State, then you will get high initial offers. If the cap is based on the "best" offer by the State, the cap would weigh over the consideration of every revised offer with the government knowing that continuing to try to find a deal that the defendant will accept is limiting the consequences if the defendant decides to go to trial.

Third, how do defense counter offers play into the cap? A plea is not finalized until the court accepts it, and a defendant can always change his mind up until the plea hearing. If the government's acceptance of a counter-offer makes the counter-offer the cap, then prosecutors will be more reluctant to accept counter offers. I know some defense attorneys (not many, but some) who will make counters without first getting approval from their clients. Such tactics could potentially put a chill on negotiations if those tactics would gain the additional benefit of capping sentences.

Posted by: tmm | Mar 22, 2022 2:57:44 PM

tmm --

The significant complications you spell out are a big part of the reason I took a pass on should-there-be-a-cap question.

Posted by: Bill Otis | Mar 22, 2022 3:23:46 PM

Thanks, tmn. I believe the UK system relies much less on charge bargaining than we do, which would make direct application of a "cap" regime more logistically challenging in at least non-simple individual cases. I don't have a fully fleshed-out proposal, but one possibility would be to allow the defendant to move for sentence reduction after a no-plea conviction if the court found that there had been undue and unfair pressure on the defendant to forego a trial. That is admittedly a mushy standard that would have to be refined by caselaw. You could use a percentage (say, 150% of the plea offer?) as a safe harbor below which no undue/unfair pressure claim would be considered. All of that implicates a broader conversation about the extent to which prosecutors vs. judges should control sentencing outcomes -- I suspect I am more on the "judges" side than Bill is.

I also don't envision a flood of these claims, as the defendant would have to take the risk of going to trial and hoping that the judge would find undue/unfair pressure if he lost. And if we assume that prosecutors generally make fair plea offers bereft of undue/unfair influence, defendants would know going in that having such a motion granted would be a long shot. The point is that having some sort of review mechanism would create a check on prosecutors applying undue/unfair influence and would promote confidence in the fairness of the system.

At a minimum, you could at least run and publish aggregate statistics by prosecuting office to create some degree of accountability. I think the public should know, for instance, if USA or DA Jones' office is recommending on average sentences three times as long after trial as it had been willing to recommend on a plea. That suggests, depending on your vantage point, that the office is either being unduly lenient with plea offers or is seeking undue sentences for defendants who go to trial. I can accept that a 3X variance could be warranted in select individual cases, but it would be hard to justify if it showed up in a large fraction of cases. And I think that would be computed on "best" offer -- if the prosecutor is willing to endorse sentence X as sufficient to promote the interests of justice, it's not unreasonable to ask why he decided 3X was not greater than necessary after trial.

Posted by: Jason | Mar 23, 2022 11:50:15 AM

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