The Plea Bargain Ate the Trial. It Is Time to Write Rules for the Bargain

The Constitution mentions the jury trial three times and the plea bargain never. The founders would not have recognized a system in which a prosecutor proposes a sentence, a defendant accepts it to avoid a worse one, and a judge ratifies the arrangement in a ten-minute hearing; the Supreme Court did not even acknowledge that this was the system until 2012, when it observed, in Missouri v. Frye, that plea bargaining "is not some adjunct to the criminal justice system; it is the criminal justice system." Ninety-seven percent of federal convictions are pleas. The trial — the thing the Sixth Amendment guarantees — is the exception that proves the rule has changed.

I do not propose to abolish the plea. It cannot be done, and much of the time it should not be: many defendants are guilty, know it, and prefer certainty to the risk of a jury. What I propose is narrower and, I think, harder to argue against. We have a system of bargaining. It has no rules about the bargain. Every other negotiation in which one party holds overwhelming power over another — a consumer contract, an employment agreement, a settlement with a government agency — is hedged with requirements of disclosure, writing, cooling-off and review. The negotiation in which the price is a decade of a person's life has none of them.

What the bargain looks like now

The offer is usually oral and often fleeting: accept by Friday or it is withdrawn. The defendant's lawyer may have seen a fraction of the evidence; the Supreme Court held in Ruiz in 2002 that prosecutors need not disclose impeachment material before a plea. The judge is barred by Rule 11 from taking part in the discussions and learns the terms only when the deal is done. The leverage is a sentence after trial that may be several times the offer — through charges held in reserve, mandatory minimums that can be filed or withheld, and the loss of the Guidelines' reduction for pleading. The Supreme Court removed one lever this month by barring judges from punishing conduct a jury acquitted; the dissent predicted, plausibly, that prosecutors would respond with more pleas. And none of it is recorded. The bill introduced this week to count plea offers is necessary and, by itself, insufficient: it would tell us the size of the penalty and nothing about whether it is fair.

Three rules

1. Put the offer in writing, with the evidence behind it. A formal plea offer should be a document: the charges, the agreed range, the conditions, the deadline, and the discovery on which the defendant is expected to decide. Ruiz should be overruled by rule if not by the Court: a defendant cannot knowingly waive a trial without knowing what the trial would show. Texas and a few other states require disclosure before plea; the federal system can.
2. Put the judge in the room. Rule 11's bar on judicial participation was meant to prevent coercion by the bench. It has produced coercion by the prosecutor instead, with the judge as notary. Connecticut, Florida and other states let judges hear both sides and indicate a likely sentence before a plea; defendants in those states bargain against a known number rather than a threat. A federal judge who may refuse a plea agreement after the fact should be allowed to say, before it, what she would accept.
3. Cap the penalty. A defendant who rejects an offer and is convicted of the same conduct should face a presumptive ceiling — the offered sentence plus a fixed margin, say a third — unless the government shows new facts or conduct at trial that justify more. The margin preserves the incentive to plead; the cap removes the threat that turns a plea into a ransom. Judges would retain discretion downward. Prosecutors would lose only the power to punish the exercise of a constitutional right by multiples.

We have a system of bargaining. It has no rules about the bargain. The negotiation in which the price is a decade of a person's life has none of the protections we give a car loan.

Marcus Bellamy

The objections

The Justice Department will say that written offers and pre-plea disclosure will slow the system and expose witnesses. The first is true and acceptable; the second is handled every day in the cases that go to trial, through protective orders. Judges will say that participation compromises their neutrality; the states that permit it report no such thing, and a judge who ratifies a deal she was not allowed to shape is not neutral but absent. Prosecutors will say a cap on the trial penalty would reduce pleas and flood the courts. Perhaps. The number of trials has fallen by ninety percent in forty years; the courts can absorb a few more, and Congress is finally adding judges. A system that can only function by threatening people with punishment for demanding a trial has a problem that efficiency cannot excuse.

And then there is the argument from innocence. Exoneration registries record hundreds of people who pleaded guilty to crimes they did not commit; the known cases are a fraction, because a plea forecloses the appeal that would have revealed the error. Every one of them was offered a bargain whose terms made the truth too expensive. No reform will end that. Rules about the bargain would make it rarer, and would make the system that produces it answerable for its terms.

The plea bargain is here to stay. The question is whether it will remain the only transaction in American law conducted entirely on one party's terms.

The views expressed in this column are the author's own and do not necessarily reflect those of The Counsel. This piece is commentary, not legal advice.