Could The Supreme Court Limit Plea Bargaining?

On behalf of The Marks Law Firm, L.L.C. posted in Criminal Law on Monday, April 15, 2013

One of the most significant developments in the modern era of criminal law has been the growth of plea bargaining. So many cases flood the criminal dockets in state and federal court that, without negotiated pleas of guilty in exchange for some leniency in sentencing, the criminal justice system would grind to a halt. Consequently, the system exerts pressure on prosecutors to offer pleas and defense attorneys to encourage defendants to accept pleas, which leaves the criminal defendant at risk of significant pressure to accept a suboptimal deal because defense counsel may not wish to try the case for a variety of reasons. Last term, the Supreme Court held that a defendant could vacate a plea if defense counsel rendered ineffective assistance in the information provided or not provided that formed the basis of the defendant’s “informed choice” at the time of the plea. This week, the Supreme Court considers the remedy for pressure exerted by the trial court on a defendant to accept a plea.

In U.S. v. Davila, the defendant was charged with filing hundreds of false tax returns and his retained counsel did nothing other than recommend he plead guilty. The defendant wanted to proceed to trial, but the pressures of the federal district judge proved too much – not only encouraging the defendant to take the plea because it would reduce his advisory sentence for acceptance of responsibility, but also using “come to Jesus” language to make the defendant feel it was a moral or religious obligation to take the plea. Federal Rule of Criminal Procedure 11(c) prohibits the court from participating in any plea negotiations – it is a blanket prohibition, one the district judge clearly violated in this case. However, as with many cases that reach the Supreme Court, the facts have a twist – the defendant accepted the plea and counsel made not objection at the time. Later, at sentencing, after the defendant fired his counsel and represented himself, the defendant tried to withdraw the plea, but the district judge found the plea voluntary and denied the request. On appeal, the Eleventh Circuit reversed, finding that even though the error had not been preserved, the error was an inherent violation of the Due Process Clause and must always be deemed prejudicial and automatically reversible.

The Supreme Court took the case to decide whether any participation by the district courts in plea negotiations warrant automatic reversal or could be subject to harmless error review. The case has potentially far-reaching implications because many states allow the trial courts to participate in plea negotiations, serving as a hammer at times to close a plea deal. The Supreme Court will face a difficult challenge in trying to prevent the conduct at issue in this case without also impacting state procedures because the way to escape harmless error review is through a class of errors the Court has called “structural,” errors that so taint the fundamental nature of the process that they are per se prejudicial. While structural errors need not be constitutional violations, they almost always are, and a ruling that says participation of the trial court allying itself with the prosecutor against the defendant to encourage acceptance of a plea deal would be so coercive as to render the entire plea process involuntary and is grounded in the Due Process Clause would extend that reach into the state courts as well.

Criminal defendants face enormous pressure to accept plea deals that usually favor the government, even if the evidence in the case is weak. The plea system discourages putting the government to its burden of proof and leads to an increase in “sloppy” cases, some of which involve innocent people. Many law professors and other policy analysts have been critical of the plea bargaining process and, while we unlikely will see an end to its predominance, we may be at a point where the Supreme Court could place an important check on the process – insuring judicial neutrality by keeping all judges out of plea negotiations in state and federal court. Such a blanket rule would have the effect of reducing the imbalance against the criminal defendant in the plea negotiation process, away from the power of the government alone and more towards the power of the evidence in a given case.

We will continue to update you on this case as it proceeds to decision.
If you have a question about the fairness of a plea bargain, contact us – we can help.

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