To Plea, or Not to Plea

In the United States, every year tens of millions of people are charged with traffic offenses, misdemeanors and/or felonies. Approximately 95% of those cases resolve either through guilty pleas or other pre-trial devices. In other words, only about 5% of criminal cases actually go to trial. So prevalent is the guilty plea — almost always by means of a plea bargain — that a rather large body of caselaw and precedent has developed around just this concept. As most things in the realm of criminal procedure, there are important Constitutional questions that arise during the plea bargain process, and thus the Supreme Court has influenced this area of law immensely.

Let’s start with the most basic question — what is a plea bargain, or for that matter a guilty plea itself? When a person is charged with a crime, recall that it is the prosecuting authority, be it the District Attorney, Attorney General, or U.S. Attorney, that brings these charges. Charging people with crimes is an executive function, and is the sole province of the executive branch of government. In other words, Courts — the judicial branch — are limited in how they can influence the charging of crimes, at least prior to trial. At any time during the life of a case — up to the day of trial — a criminal defendant has the ability to plead guilty to the charges against him. The judge would then sentence the defendant in accordance with the statute that the defendant pled guilty under. While this does happen spontaneously on occasion — usually a first time offender with a relatively minor offense — guilty pleas are usually made pursuant to a plea bargain. A plea bargain is nothing more than an agreement by the prosecutor to offer a reduction of the charge, or an agreement to recommend a lighter sentence to the judge, in exchange for the defendant’s plea of guilty. A guilty plea is the same as a conviction.

Of course there are many reasons why people accept plea bargains and plead guilty. Most often, they are offered a substantial reduction in penalty. For example, in a hypothetical case, a defendant is charged with Possession with Intent to Distribute Cocaine, a second class felony. If found guilty at trial, the sentencing range in Louisiana, written into the statute itself, is 2 years to 30 years at hard labor. That means that if the defendant went to trial and lost, the judge could sentence him up to the maximum of 30 years in prison. If the district attorney wanted to resolve the case for whatever reason, he may offer to reduce the charge to a Simple Possession, which would only carry a maximum of 5 years and no minimum. Thus, if the defendant would accept that plea bargain, as a first time offender, he would probably be placed on probation, instead of having to serve time in prison. It is this choice — the choice between possible prison time and probation — that encourages many first time offenders to plead guilty in lieu of trial — even if the State’s case is less than airtight.

A more complicated scenario would be someone who has prior felony convictions. Because of prior convictions, a defendant would be referred to as a habitual offender, and would be facing increased penalties as a result. Under federal law and most state’s laws, habitual offender statutes have been enacted to severely punish recidivists. In Louisiana, for example, if you have one previous felony conviction and you are convicted of a second one, the sentencing range under the habitual offender statute requires that the defendant be sentenced to a minimum 50% of the maximum penalty prescribed by law, up to a maximum of double the statutory maximum. In other words, a second felony offender charged with the same crime would be facing a minimum of 15 years (1/2 of the maximum of 30 years) up to a maximum of 60 years (2 times the maximum). Plea bargains for multiple offenders therefore usually entail an agreement by the prosecutor to refrain from filing a habitual offender action. They might say if the defendant agrees to plead guilty as charged and serves at least 5 years in prison, they wouldn’t charge him as a second offender, where the minimum would be at least 15 years in prison.

So, we know what a plea bargain is, and why people choose to accept them, now let’s talk about the procedural framework. The first bedrock principle in determining whether a guilty plea is constitutional is the idea that the plea must be a knowing, intelligent, free and voluntary act on the part of the defendant. He must be afforded a right to counsel during the plea bargaining process and must make an intelligent waiver of his rights to proceed to trial and confront and cross examine his accusers. The Supreme Court codified this procedure in the case of Boykin v. Alabama. The Boykin court noted:

“A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.[1] Admissibility of a confession must be based on a ‘reliable determination on the voluntariness issue which satisfies the constitutional rights of the defendant.’” [2]

The Court went on to state that several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth, pursuant to Malloy v. Hogan, 378 U.S. 1. Second, is the right to trial by jury, pursuant to Duncan v. Louisiana, 391 U.S. 145. Third, is the right to confront one’s accusers, pursuant to Pointer v. Texas, 380 U.S. 400. “We cannot presume a waiver of these three important federal rights from a silent record.”

In other words, the Boykin Court set forth a requirement in criminal cases that a record be made of the defendant’s voluntary waiver of these rights in open court. Courts have thus adopted written forms that are presented to the defendant which lists all the rights the defendant is waiving by entering a plea of guilty. The defendant signs this form after reviewing it, preferably with an attorney, and then it is read out loud by the Judge on the official court record, and the defendant is required to answer out loud that he is making a free and voluntary waiver of his constitutional rights. This has become known as a “Boykin” hearing, and the form is generally referred to as a “Boykin” form.

As it concerns plea bargains, while there is no absolute right to a plea bargain, the Supreme Court has made it clear that if a plea bargain is offered, then the prosecutor making the offer must keep any promises made. The Supreme Court decision in Santobello v. New York is the leading case in this matter. There, the court indicated that there must be fairness in securing an agreement between an accused and a prosecutor. Additionally, as the court noted:

The accused pleading guilty must be counseled, absent a waiver. [T[he sentencing judge must develop, on the record, the factual basis for the plea, as, for example, by having the accused describe the conduct that gave rise to the charge. The plea must, of course, be voluntary and knowing and if it was induced by promises, the essence of those promises must in some way be made known.

The Court did state that there is no absolute right to have a guilty plea accepted. [3] In other words, even if a defendant is offered a plea bargain, a Judge may reject a plea in the “exercise of sound judicial discretion.”

The Court in Blackledge v. Allison famously stated: “[W]hatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country’s criminal justice system. Properly administered, they can benefit all concerned.” [4] However, regardless of how important plea bargaining may be in the administration of criminal justice, we are reminded that “a guilty plea is a serious and sobering occasion inasmuch as it constitutes a waiver of the fundamental rights to a jury trial, to confront one’s accusers, to present witnesses in one’s defense, to remain silent, and to be convicted by proof beyond all reasonable doubt.”

Since Kercheval v. United States, 274 U.S. 220, the courts have recognized “that ‘unfairly obtained’ guilty pleas . . . ought to be vacated.” In other words, if a defendant does not knowingly waive his rights, or if he has been misled, or the record indicates that he wasn’t fully apprised of his rights or the consequences of his plea, the defendant can withdraw his guilty plea. But as long as the prosecutor doesn’t blatantly deceive the defendant or break promises following a plea bargain, and the court conducts an adequate Boykin hearing, it is generally very difficult for a defendant to change his mind after he pleads guilty.

Reasons supporting the withdrawal of a guilty plea would ordinarily include breach of a plea bargain, inducement, misleading advice of counsel, strength of the evidence of actual guilt or the like. A mere change of heart or mind by the defendant as to whether he made a good bargain will not ordinarily support allowing the withdrawal of a bargained guilty plea. Without fraud, intimidation or incompetence of counsel, a guilty plea is not made less voluntary or informed by the considered advice of counsel. Misunderstandings between the defendant and his defense counsel do not render a guilty plea involuntary.[5] In other words, unless you can show some pretty unusual circumstances, if you plead guilty, you are stuck with that guilty plea.

And as I’ve already stated, guilty pleas and plea bargains are absolutely indispensable in the efficient administration of justice. Without them, we would be forced to go to trial in every single case, which would place an insurmountable burden on the court system. There simply aren’t enough courts, judges, attorneys or hours in the day for every criminal case to go to a full trial on the merits. The system is already overworked and buckling under its own weight, and that’s with only 5% of the cases going to trial. Increasing that burden 20 fold would bring the whole thing to a screeching halt, which would, in turn, result in many cases being thrown out on Speedy Trial grounds. This is one of the primary reasons that prosecutors even offer plea bargains in the first place. Another reason plea bargains are offered is when the prosecution perceives a weakness in their case. In order to get a conviction, they will cut a deal so the offender doesn’t get off “scot free”. And perhaps — hopefully — sometimes the idea behind offering plea bargains is the age-old battle between harsh justice and mercy. We want criminals to pay a price, but we also need compassion and forgiveness and understand that people occasionally step out of line, and we shouldn’t over-punish if we want to maintain a civil society.

On the other hand, all those important considerations aside, there is no doubt that plea bargains are overused, and often maliciously so. Defendants are lured into pleading guilty on cases that they might have a good chance of winning at trial. Innocent people take plea bargains to avoid the threat of long prison sentences. We actually even have a judicial acknowledgment of this scenario, pursuant to the case of North Carolina v. Alford, which stands for the proposition that a defendant can choose to plead guilty without confessing guilt if he feels a plea would be in his “best interests.” In other words, courts know that sometimes defendants are innocent — or at least believe they are innocent — yet still plead guilty because of the threat of a long prison sentence. Recall that the State holds pretty much all the cards in criminal cases. And young men, disproportionately African American, are loaded into the system, often unfairly, and often without knowing the full consequences of a felony conviction. And again, this is why competent and thoughtful legal counsel is so necessary at all stages of criminal proceedings.


[1] See Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009.

[2] Jackson v. Denno, 378 U.S. 368, 387, 84 S.Ct. 1774, 1786, 12 L.Ed.2d 908.

[3] Lynch v. Overholser, 369 U.S. 705, 719, 82 S.Ct. 1063, 1072, 8 L.Ed.2d 211 (1962)

[4] Blackledge v. Allison

[5] State v. Johnson, 666 So.2d 1137 (La. App. 3d Cir.1995).



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