Judicial Participation in Plea Bargaining: A Proposal for Plea Reform

Scholars and commentators have long criticized the plea bargaining process as inherently unfair. As United States District Court Judge Jed Rakoff has noted, “Plea bargains have led many innocent people to take a deal . . . . People accused of crimes are often offered five years by prosecutors or face 20 to 30 years if they go to trial . . . . The prosecutor has the information, he has all the chips . . . and the defense lawyer has very, very little to work with. So it’s a system of prosecutor power and prosecutor discretion.”

The power imbalance between prosecutors and defense counsel (and the defendants themselves) is rooted in several systemic issues with the plea bargaining system. Often, defense lawyers are public defenders paid fixed salaries to defend large numbers of clients or private attorneys appointed by the state for low hourly rates and caps on compensation. These compensation structures create little financial incentives to try cases and great incentive to plead cases out quickly to handle large volumes. In addition, these appointed lawyers are given few resources with which to try cases and so are unlikely to be able to afford the extensive discovery and other costs that may be required. There is little reputational incentive to plea bargain well either, as defendants with appointed counsel or public defenders do not have a choice of counsel. Defense attorneys are often under pressure by judges who are mindful of their own case volume to settle cases quickly.

Prosecutors in the system also have extraordinary power. Because prosecutors have virtually unchecked discretion to charge differently for the same acts and can add enhancements or charges if pleas are refused, defendants are strongly incentivized to take whatever deals are offered by the prosecution. In addition, increased penalties for existing crimes, mandatory minimum sentences, adding additional crimes to the penal code, and zero-tolerance polices all have contributed to the pressure on defendants to plead guilty.

Poor incentives for defense counsel coupled with extensive prosecutorial power means that defendants rarely have lawyers that can credibly threaten to take a case to trial. A lawyer who cannot take a case to trial is less likely to be offered concessions in the plea bargaining process. In addition, overburdened defense counsel with several cases have been known to trade off the settlement of certain cases against others, usually to the detriment of indigent clients and the benefit of paying clients. Appointed counsel also file fewer motions, meet with their clients fewer times, meet with their clients later, and be less familiar with sentencing rules than paid defense counsel, all of which can lead to poorer outcomes.

These issues with the plea bargaining process are appropriate to consider now because of a pair of decisions handed down by the Supreme Court in 2012—Lafler v. Cooper and Missouri v. Frye. In these decisions, the Supreme Court for the first time applied the protections of the Sixth Amendment right to effective assistance of counsel to the plea bargaining process. Writing for the majority in Frye, Justice Kennedy stated that in order for the benefits of a plea agreement to be realized:

[C]riminal defendants require effective counsel during plea negotiations. ‘Anything less...might deny a defendant effective representation by counsel at the only stage when legal aid and advice would help him.’

Unfortunately, counsel is often less than “effective,” and the “help” is not realized.

What can be done to address these issues of defense counsel ineffectiveness and power imbalance in plea bargaining? While no one change can solve all problems, adding judges as appropriate neutrals can address several of the ills of the plea bargaining system. Having a judge supervise and oversee the plea process, as is done in judicial settlement conferences in the civil context, can have several positive impacts.

A judge or magistrate judge serving as a neutral during the negotiation of a plea bargain can be a secondary source of information about the plea process for defendants, who can be better informed of the nature of the plea bargained offer or what may happen if the case goes to trial, as many defendants do not trust their appointed defense counsel to provide this information accurately. Having the judge in the process can also cause prosecutors to be more forthcoming with their case, since as in judicial settlement conferences, disclosures may be compelled due to the candor requirements for lawyers. As plea bargains otherwise occur in private, judges facilitating the process can serve a check on prosecutorial or defense counsel misconduct, both by their very presence and by their role as an officer of the court. In addition, adding judges to the plea process may encourage efficiency in terms of greater number of agreed plea bargains, although since over 95% of criminal cases already result in plea bargains, this is at best a secondary consideration.

Several states already encourage judges to be involved in the plea process. New York, Arizona, Idaho, North Carolina, Massachusetts, Oregon, Minnesota, Montana, and Vermont all find advantages to judical involvement. In addition, Connecticut, Florida, Indiana, Oklahoma, and Alabama allow judges to be involved although don’t take a position on the practice.

It is true that several other states and the federal government have considered the inclusion of judges in the plea process and have banned or discouraged the practice for various reasons. Colorado, North Dakota, South Dakota, West Virginia, Arkansas, Tennessee, Pennsylvania, and Utah and the federal government have explicitly prohibited judicial involvement in the plea process by statute or rules of procedure, while the District of Columbia, Georgia, Mississippi, New Mexico, and Virginia have enshrined this prohibition in their court rules. In Alaska, Kansas, Texas, Wisconsin, and Nevada, state courts have prohibited the practice through case law.

In a number of states which allow judicial participation in their state statutes, courts have found such involvement problematic and have discouraged or envisioned a limited role for such participation. Such is the case in Illinois,Maryland, Missouri, Maine, Hawaii,and New Jersey. In Louisiana, Michigan, California, South Carolina, Nebraska, and Ohio, existing laws are silent on the issue of judicial participation, but nevertheless the courts have similarly discouraged, but not prohibited, judges from participating. (In Delaware, Iowa, Kentucky, New Hampshire, Rhode Island, and Wyoming courts have not ruled on the role of the judge in the plea process, nor is there a state statue or procedural rule on point.)

States and courts which have enacted bans or restricted judicial participation in plea bargains have done so on several related grounds. The primary concern with the practice is that the involvement of a judge in the process will render the defendant’s plea involuntary. Due to the fact that in most jurisdictions, a plea of guilty by the accused must be made “voluntarily” and “knowingly,” the concern is that having a judge participate in the in the negotiation is so coercive that a defendant could not voluntarily agree to a plea if the judge is present. Another concern cited for limiting the judge’s role in plea bargaining is that the judge may hear something, such as an implicit admission, during the plea bargaining process that would bias the judge either during sentencing or during trial itself. This is a particular risk as the rules of evidence are not at play during a plea bargain, so there is no ban against discussing otherwise prohibited evidence such as prior crimes, violent history, etc. Another concern expressed by courts regarding the involvement of judges is the damage it may do to the perception of the judge’s independent role and that by participating in the process, the judge may step in to the position of one of the parties to the negotiation and abandon the traditional role of independent examiner. Related to this is the concern is that if judges participate in the process and begin to negotiate directly with the defendant, they usurp a prosecutorial function and therefore violate the separation of powers between executive and judiciary.

How might we allow judges to be involved in the plea process in a way that preserves the advantages recognized by states that have enacted the practice yet addresses the concerns raised by other jurisdictions? Several recommendations are in order. Most importantly, if a state chooses to have judges involved in the plea process, they should first require a separate judge or magistrate judge from the trial judge to manage the plea bargaining process. This safeguard will ensure that the benefits of judicial participation are maintained, but avoid the issue of a judge hearing evidence that will taint future proceedings, and lessen the threat of judicial coercion through adverse rulings during the trial stage. Furthermore, any participation by the judge in plea bargaining should be included as part of the record of the case. The requirement of a record, even if under seal until needed, will permit review of claims of prejudice or undue influence on the defendant or defense counsel and will allow for the defendant to know what was said if they are not present for the plea bargain.

Since many defendants do not understand the role that their defense attorney plays in the plea bargain process, and since errors by defense counsel can go undetected when defendants are not present, judges should include the defendant in the plea bargaining process wherever possible. A defendant who is involved in the plea bargaining process can use the judge as an information source to supplement and validate the information that he is receiving from his own defense counsel, and can also observe how zealously his attorney is participating in the plea process. This observation in turn may encourage the defense counsel to be more prepared and provide better representation. Having the defendant involved can also increase the perceived fairness to the defendant which can lead to greater compliance and satisfaction with the process. To minimize the threat of coercion and encourage a voluntary plea, when the defendant is involved judges should conduct the plea process in a more comfortable and less formal setting than the courtroom, such as a conference room, in chambers, or in a dedicated settlement room.

Finally, states should statutorily prescribe the role of the judge to be that of a neutral that facilitates the process, rather than directs the outcome. This specification of the role of the neutral, borrowed from work on mediation, will mitigate the concerns regarding the appropriate role of the judge. A judge who plays a role as a facilitative neutral does not negotiate with one side over the bargain that they should take, but impartially works towards settlement. The judge can weigh in on information presented by each side, explain this information to the defendant if necessary, and provide both sides assurances that the process is being conducted fairly. By maintaining a facilitative role, the judge is less likely to coerce the defendant, more likely to maintain their independence, and avoid usurping the prosecutorial function.

Allowing judges to participate in plea bargains will not fix all of the ills of the plea bargaining system. Given the structural issues involved with plea bargaining, no one proposal can do so. In the future, legislatures and courts must act to address some of the larger ills of the system, such as overburdened defense counsel and imbalances of power. However, by allowing judges to participate in a prescribed way, with a separate judge for the plea process, recording judicial involvement, including the defendant where possible in an informal setting, and specifying the role of the judge appropriately, states can realize the benefits of adding a neutral to the process who is familiar with the system and that participants will accept. States that already allow participation should add in these reforms, and states that are considering participation can try to pilot programs in this way. Doing so will add a little more fairness to an unfair system.

This is an adaptation of an article that appeared in Volume 76 of the Ohio State Law Journal. A more complete version with fuller documentation is available here.