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September 20, 2023

"Toward a More Comprehensive Plea Bargaining Regulatory Regime"

The title of this post is the title of this new paper authored by Russell Covey now available via SSRN. Here is its abstract:

America’s plea-bargaining system is famously informal.  While there is a smattering of state and federal regulation of guilty pleas, the practice of plea-bargaining itself remains almost entirely untouched by law.  Because plea bargaining is the mechanism by which the vast majority of criminal convictions are secured — upwards of 95% by most estimates — this means that almost all criminal convictions are the product of an essentially unregulated, and in many ways entirely lawless, process.  There is an increasing awareness of the harmful effects of an unregulated plea bargaining system and the ways that this lack of regulation enables highly coercive practices that effectively deprive most criminal defendants of their constitutional right to trial.  The corrosive effect of plea-bargaining’s dominance is unmistakable and the continuing lack of meaningful regulation of it threatens the basic integrity of the criminal legal system.

This Article argues that it is imperative that policymakers take this threat seriously and urges them to take steps to impose real regulation on the plea-bargaining practice.  The Article identifies several reforms that might be taken.  These include requiring all plea offers to be in writing and filed in court, standardizing the timing and content of plea agreements, limiting the kinds of rights that criminal defendants can be required to waive in order to obtain a plea agreement, and shifting sentencing hearings from post-trial to pre-trial to ensure that defendants are aware of the consequences of their plea decisions.  The filing requirement would also facilitate creation of meaningful mechanisms to regulate the magnitude of the sentencing differential between plea and trial sentences.  This latter goal is critical to ameliorate the highly coercive aspects of present plea bargain practice, since more than any other factor it is the threat of heavy trial penalties that undermine the value of a defendant’s constitutional right to trial.  Implementation of these reforms would go a long way toward bringing much needed procedural formality to the informal practice of plea bargaining and would help establish a more rational regulatory system of plea bargaining practice.  It is also hoped that these reforms might help reverse the longstanding trend toward ever more vanishing criminal trials.

September 20, 2023 at 06:05 PM | Permalink


I learned a lot about the problems involved in plea bargaining while litigating a 2255 habeas corpus motion on that topic for 5 years. The defendant physician had turned down a 41-month plea bargain offer at the suggestion of his young lawyer (only 3 years after he got his J.D.!), who said that he believed that he could get the doctor acquitted, based upon entrapment by undercover police officers, who went into the doctor's clinic, posing as car accident victims, to get prescriptions for narcotics. Defense counsel had never tried a Federal criminal case before. The winning issue in the habeas case was the lawyer's failure to give the physician any estimate whatsoever of how much time he was facing if he went to trial but was convicted. Defense counsel failed to persuade the jury that the physician had been entrapped [the physician was acquitted on 3 out of 11 counts involving section 841(a) drug distribution charges).The physician was shocked to receive the 20-year statutory maximum sentence pursuant to section 841(b)(1)(C). The District Judge sat on the doctor's habeas corpus case for 3.5 years, before denying him relief. It took another 1.5 years for the Sixth Circuit to reverse the District Judge and order her to grant a habeas corpus remedy. See, Sawaf v. United States, 570 F. App'x. 544 (6th Cir. 2014) (unpublished). Three months later, teh District Judge re-sentenced the doctor to "time served" and he was released from prison. From all of my legal research and reading in that case, I learned that there are many problems with plea bargaining practices, which frequently lead to habeas corpus motions, alleging ineffective assistance of counsel claims. Many of those problems could be avoided if all plea communications among the prosecutor, defense counsel and the defendant were required to be in writing, and then filed in a special sealed envelope, even if the case goes to trial. Then, if issues subsequently arise about exactly what happened and what was said or done, there is a written record that the court can read, contemporaneously made at the time things were offered, refused, communicated to the client (or not) and refused or accepted. These practices alone would substantially reduce the post hac issues with plea bargaining practices and habeas corpus claims would be reduced and more promptly resolved. Can you even imagine that there are documented cases where defense counsel has failed to convey a plea offer from the prosecutor to his client?

Posted by: Jim Gormley | Sep 20, 2023 7:31:29 PM

What arrant nonsense.

1. No one is forced to bargain. If you don't want one for any reason, fine, go to trial. 2. When you do bargain, your lawyer is there with you. He's the one who actually does it. 3. The defense bar lives off plea bargains and loves them because the main thing they do by far is get the client off with a fraction of what he'd otherwise get. 4. The real reason they're so many bargains is that that defendants know they're going to lose at trial and would prefer an easier way out. 5. In federal court, the bargain is reviewed by the judge under the exacting standards of Rule 11, FRCP. If the judge is not satisfied for any reason, or thinks it's not voluntary, or smells any kind of rat (as with Hunter Biden), there's no deal, period.

This is just more defense complaining that other people should fix what they can fix themselves. Again: If for any reason you don't want to bargain, DON'T DO IT. Or even better, don't sell the fentanyl to begin with so you won't have to make that choice.

Posted by: Bill Otis | Sep 20, 2023 11:38:30 PM

Mr. Gromley,

You know, some people who often post regularly on this site, just don't care about people serving time in prison when such people are either factually innocent, or who have suffered from significant violations of their civil rights, for whatever reason..such as prosecutorial misconduct, as an example.

These participants to whom I refer (predictably) will refuse to directly address such issues, and instead, will (again predictably) deflect and/or ignore such issues outright, responding (predictably): "..but what about the victims?"

And we, being the good, decent and moral citizens that we all are, will feel it our moral duty to reply: "Oh, but we DO care about the victims..we truly do", and off we go talking about something altogether different..til the next such posting.

Posted by: SG | Sep 21, 2023 5:49:04 AM

SG --

1. The words "What arrant nonsense" were directed to the entry, not to Jim Gormley's comment on it. I should have made that clear.

2. I appreciate that a man with your extensive experience in the system did not contradict a single word in my comment. Thanks!

3. Glad to hear that you care about crime victims. I wonder if you could tell us, giving specifics, about what concrete help you've given them. For example, have you helped convict the person who was the victimizer?

Posted by: Bill Otis | Sep 21, 2023 9:43:06 AM

One of these kinds of physician prescribing cases worth examining was Ohio v. William Husel, tried in April 2022 in Columbus, Ohio. Dr. Husel was charged with 14 counts of homicide, for administering fentanyl to critically ill and dying patients in the ICU, on the night shift at a hospital, where he worked as a hospitalist between 2015 and 2018. The trial lasted 3 weeks. The prosecution called 53 witnesses, and the defense called just a single expert witness, a physician from Emory University Medical School in Atlanta. The defense expert testified that there are no generally accepted medical standards for how much fentanyl to administer to terminally ill, dying patients. It's up to the judgment of the individual treating physician on the scene in the hospital. Second, the expert physician also testified that from his review of the 14 relevant patient files, he concluded that the patients died of natural causes, the medical conditions that had them in the ICU, not from overdoses of fentanyl administered by the defendant. Dr. Husel became the only defendant in the history of Ohio acquitted on 14 counts of murder. Medical ethicists and practicing physicians are carefully studying this case to see what can be learned, for future use and teaching.

Posted by: Jim Gormley | Sep 21, 2023 10:43:42 AM


Completely illogical.

One of your major and common complaints about Bill, federalist, myself, etc., is that we want to punish criminals. Doesn’t it stand to reason that we want to punish actual criminals and not people who are “factually innocent?”

If someone carjacks me, I’m not going to just point to the closest person so someone gets punished. I’ll do my best to help the police get the correct person, as would any sane person. Putting someone in prison who is “factually innocent,” does nothing to satisfy what you may call my “lust for vengeance.”

Dealing with prosecutorial misconduct uses similar logic. And no one here has been harder on criminal prosecutors, such as in the Duke lax case, than Bill.

Posted by: TarlsQtr | Sep 21, 2023 12:00:36 PM

It is reasonable to consider the idea that one could get a lengthy sentence at trial "coercive." It is equally reasonable to consider it "not coercive." It's a semantic question, and I don't think it is productive to argue about it.

If one wants to reduce the amount of plea bargaining that happens, one has to think about it in terms of game theory. It astonishes me that there is so much literature on the subject, yet I have yet to see anyone take this obvious step. The reason plea bargaining happens is that it is better for both the sides. The defendant gets less time, and the prosecutor gets a lower workload. If one wants to reduce the ratio between bargained and non-bargained sentences, one needs to reduce the ratio between the prosecutor's workload for non-bargained and bargained cases. Just how big is that ratio? Is it similar to the ratio between bargained and non-bargained sentences? Obviously both ratios are difficult to measure. Yet both have to be relevant.

Posted by: William C Jockusch | Sep 21, 2023 4:07:28 PM

By far the most "coercive" cudgel the prosecutor has is the evidence. When the defendant and his lawyer see that they have a 99% chance of losing a trial, that is indeed, in some sense, "coercive," but not in any sense that should produce heartburn.

Posted by: Bill Otis | Sep 21, 2023 6:41:11 PM

Mr. Gromely,

It seems that my last posting (above) haas struck a nerve with some.

Posted by: SG | Sep 21, 2023 10:29:14 PM


Sorry for the spelling error . Of course I had meant to write “Mr. Gormley”. No disrespect intended. My apologies.

Posted by: SG | Sep 21, 2023 11:09:55 PM


Everyone here makes typos. Not to worry. Comes with the territory, and there's no edit function.

On the other hand, if you'd like to give a SUBSTANTIVE reply about plea bargaining at some point, I assure you it's not illegal.

Posted by: Bill Otis | Sep 22, 2023 12:26:53 AM

Bill stated,

“On the other hand, if you'd [SG] like to give a SUBSTANTIVE reply about plea bargaining at some point, I assure you it's not illegal.”

This is especially true when I responded to SG’s post of wrong assumptions directly.

It’s hilarious. He said we, “…will refuse to directly address such issues…” So, I do. SG’s response? He must have “struck a nerve.”

If I don’t respond, I took the coward’s way out. If I do? I must have been triggered.

That’s one hell of a Kobayashi Maru SG has set up.

If he ever shows intellectual honesty, it will be the first time.

Posted by: TarlsQtr | Sep 22, 2023 1:10:16 AM


Certainly I will respond directly and to the point.

And this is not to disrespect all prosecuting attorneys. Some do an excellent job and I have nothing but respect for their professionalism.

However, in my experience, the vast majority of decisions to accept a plea by a deft. is due to the regular "over-charging practices", and/or stacking of charges, by prosecutors. And please, spare me the ridiculous assertion that "this happens in just a very small number of cases by a very few over-worked and mis-understood prosecutors". What arrant nonsense, to coin a phrase.

In several cases, the oft indigent deft., anxious to get out of the hellhole of a county jail and get to a prison, will accept an offer while knowing the charges are either totally or mostly false. "Oh he can go to trial then" you say, but oh so disingenuously, ignoring all other factors.

The point you repeatedly make about "they should all just plead guilty, accept responsibility for their criminal acts and go do their time", is patently ridiculous. Come on Bill. Get real. Your whining is just to say: "I don't like working hard at achieving a reasonable outcome. It would be so much easier and save us all a lot of time if we prosecutors did not have to carry the burden of having to prove our cases", etc.

Posted by: SG | Sep 22, 2023 4:27:58 AM

A recurrent problem in plea bargaining discussions is that there are three very different scenarios. Low level (misdemanor and low level felonies) state law prosecutions. High level (high level felonies) state law prosecutions. Federal prosecutions. Each poses very different issues and problems, and conflating the three produces no useful discussion.

Posted by: shg | Sep 23, 2023 5:52:06 PM

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