Criminal Justice

District Judge Generally Rejects Plea Bargaining

An unusual perspective in a system that very heavily relies on plea bargains, but one I thought worth noting.

|The Volokh Conspiracy |

From U.S. v. Stevenson, decided earlier this month by Judge Joseph R. Goodwin of the federal district court for the southern district of West Virginia:

On June 26, 2017, I rejected the proffered plea agreement in United States v. Charles York Walker, Jr. after determining that it was not in the public interest. On October 10, 2017, I rejected the proffered plea agreement in United States v. Antoine Dericus Wilmore after determining that it also was not in the public interest. In both opinions, I stated that it is the court's function to prevent the transfer of criminal adjudications from the public arena to the prosecutor's office for the purpose of expediency at the price of confidence in and effectiveness of the criminal justice system.

I have further reflected upon the near-total substitution of plea bargaining for the system of justice created by our nation's Founders, and I FIND that I should give great weight to the people's interest in participating in their criminal justice system when considering whether to accept or reject a proffered plea bargain in a particular case. I FIND that the scales of justice tip in favor of rejecting plea bargains unless I am presented with a counterbalance of case-specific factors sufficiently compelling to overcome the people's interest in participating in the criminal justice system.

Therefore, in each case, I will consider the case-specific factors presented to me and weigh those competing factors against the people's participatory interest and then determine whether to accept or reject the plea bargain. Because I FIND that the presented justifications for the bargain in this case are insufficient to balance the people's interest in participating in the criminal justice system, I REJECT the proffered plea agreement….

Since the decision in Walker, I have concluded that the government believes that leaving the judge with broad sentencing discretion is the only interest to be considered in accepting or rejecting a plea bargain. The government repeatedly emphasizes the defendant's cooperation with respect to drug amounts and Guideline enhancements. Simply put, the government seems to think that all I care about is the length of the available Guideline sentence. Its premise is that if the defendant agrees to be incarcerated for what the government considers an appropriate amount of time, nothing else in the criminal justice process really matters. Why bother seeking an indictment from the grand jury if a defendant can be convinced to agree to plead guilty to an information? Why try to obtain convictions on other grand jury counts if the defendant admits the conduct qualifying as relevant under the Guidelines? Shouldn't the judge be completely satisfied? Why make the government prepare for and present its case at trial? Why make the government liable for defending against any appeal?

The answer to these questions is central to the issue before the court, and simple: The United States criminal justice system is about far more than just punishment, and it was never intended to place all the power of accuser, judge, and jury into the hands of the government. Criminal justice in this country was meant to be a balanced system that regulates the investigation, formal accusation, adjudication of guilt and innocence, and punishment of crimes. All aspects of this system were carefully considered and debated by the Founders to ultimately be memorialized for their fundamental value in our Constitution.

The Founders clearly intended and articulated a preeminent role for the people's direct participation in that criminal justice system. I do not see justice in the plea agreement proffered in this case. As with most plea bargains, it eliminates the people's participation entirely on the reasoning that the people have "an interest in the efficient and effective adjudication of criminal cases," and that is good enough. Plea bargains like this one perpetuate the ongoing metamorphasis of the criminal justice system into nothing more than an administrative system controlled entirely by bureaucrats, where judge and jury are merely stage props to convince the general public that the criminal justice system they see nightly on television is being busily played out in the big courtroom downtown….

I can't confidently speak to whether this is a sound approach, but I thought many of our readers would find it interesting; read the whole opinion, which is quite readable. Thanks to Charles Nichols for the pointer.

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  1. It’s about darn time!

    Under plea bargaining, being charged by a prosecutor is as good as a conviction. That is no better than the French Reign of Terror.

    1. That’s an odd claim. If you’re right, then why don’t people go to trial?

      1. Why don’t people go to trial? Because it costs a BOATLOAD of money to hire competent criminal defense counsel and investigators, 90%+ of all criminal defendants are indigent and have to rely upon either public defenders’ offices or court appointed counsel, both of which are grossly underfunded, and even if you have some money set aside, only the very rich aren’t really hurt (i.e., financially wiped out) by trying a jury trial in a criminal case. Sure, you can elect to go to trial, take your chances with a second or third-rate lawyer who is being paid less than 1/3 of what he could earn in the private sector, with no budget at all for investigators, no budget for expert witnesses, and you might as well assume that the prosecutor is going to violate any Brady requirements of turning over exculpatory evidence, or hire a decent lawyer and pay for those investigators and expert witnesses, leaving you broke, your family destitute, even if you win, with no way to ever recover the costs incurred to defend yourself. That is why criminal defendants don’t go to trial, even those who are innocent. The system sucks.

        1. Also, a lot of times they are guilty and they know the government can prove it.

          1. Great. It’s not just imperative the government can prove it, but MUST prove it beyond reasonable doubt, where a jury gets to define reasonable, not a prosecutor.

        2. Where do you come up with this nonsense, TV? Public defenders are no more underfunded than prosecutors and they know who will plead in advance while prosecutors have to prepare for trial absent early disclosure by the defense – a huge advantage for the defense. Many public defenders are far more experienced than most private lawyers. Virtually all PD’s offices have investigators, access through compulsory disclosure to prosecutors’ casefiles and funds for experts.

          Many public defenders, like many prosecutors, are capable lawyers who stay in the game because they are committed to serve.

          Defendants plead guilty because they are guilty and welcome the opportunity to avoid being held fully responsible for their crimes.

          You don’t have a clue about how “the system” works.

      2. What DjDiverDan says. It is also true that the vast majority of people charged with crimes are not totally blameless or didn’t do something wrong. But the question is whether they did something (1) demonstrably wrong (2) according to a law. When potentially guilty defendants go free people complain about technicalities. But those technicalities are rooted in important legal principles and restrictions on the government.

        A plea deal short circuits that. Deficiencies in evidence, the fit of an act to a statute, and government misdeeds are swept aside. In essence, the law written by the legislature and all the attendant constitutional and statutory protections are made very fuzzy. And the problem isn’t that this happens (this will always happen and many times to good effect) but that it has become the norm.

        In addition to many people being punished for acts that the government wouldn’t be able to prove beyond a reasonable doubt (again, sometimes this is good but that doesn’t mean always), the problem is that this dynamic effects how the law is enforced, how the law is written, and whether people are punished for acts that the government wouldn’t be able to prove under the law.

        As suggested by DjDiverDan, this creates an economic disparity in meting out justice. Somebody with average intelligence and average (or lower) income will generally fare worse.

        1. Constitutional challenges are virtually always litigated before plea bargains.

          Why would prosecutors file charges they don’t believe they can prove? Why would a defendant plead to a charge he doesn’t believe can be proved?

          Why do people opt for the illogical as well as the uninformed explanation on this subject?

        2. Your points (1) and (2) aren’t all of it, either. Nullification is an important check on overbearing government.

      3. Because the consequences of going to trial and losing are enormous. And even if you are innocent, there is no guarantee that you will be acquitted.

  2. “Plea bargains like this one perpetuate the ongoing metamorphasis of the criminal justice system into nothing more than an administrative system controlled entirely by bureaucrats, where judge and jury are merely stage props to convince the general public that the criminal justice system they see nightly on television is being busily played out in the big courtroom downtown….”

    Judge Joseph R. Goodwin is like the little boy who says the emperor has no clothes.

    I’m not sure the judge will be allowed to get away with this.

    1. Even if he get’s smacked down for this, that won’t make him wrong.

  3. I like this.

    I am wondering when plea bargaining started to become the overwhelmingly dominant way of handling criminal cases. It seems to me that the process reflects a disconnect between the criminal law and our willingness to support anything like the system of justice whose principles are set forth in the Constitution.

    1. It seems to me to be simply part of the administrative state. From that standpoint, costs are kept down, the prosecutor develops a high success rate, and no one has to work too hard. Better yet, this reduces those pesky appeals, as the sucker gives up his right to appeal. It’s win-win all around.

      (except for the poor schmo who pleads to manslaughter [8-10 years] to avoid a potential murder conviction [25-to-life] when he didn’t actually do anything.)

      1. Yes.

        But how and why did we get there?

        1. How did we get here? Simple. We made so many laws that they cannot possibly be enforced on everyone who breaks them. So they are enforced selectively against political opponents, people who complain, etc.

      2. That’s right, it’s the goal of the administrative state that is reached by plea bargaining. I think it’s odd that commenters are acting as if the current regime hurts defendants, though, when it’s the opposite. A defendant is charged with 5 felonies that the legislature has enacted should be punished with 20 years in prison. The prosecutor could prove all of them, but to save trouble, lets him plead guilty to 1 of them, for 4 years in prison. The defendant is happy, the prosecutor is happy, the executive is happy (only 4 years of prison expense) and the public sees its attempt to impose long sentences for crimes foiled. Oh– and when the criminal gets out, his record reveals 80% less crimes than he actually committed.

    2. I have not checked on the details, but in his decision the Judge gives a short overview. It seems the avalanche started at about the same time (1970s) the “war on drugs” and a generally more “law and order” attitude got hold of US politics. Incarceration rates followed suit. As far too often, people were eager to ask for “expanded state services” without willingness to pay for them adequately.

      1. Brady was in 1970 which allowed for the constitutionality of plea bargains, but even in the 30s the plea bargain percentage of convictions was 90% per wiki. The bigger problem is the use of a plea to coerce defendants to squeel on others, amounting to a bribe to convict others for more leniency.

    3. It seems to me that the process reflects a disconnect between the criminal law and our willingness to support anything like the system of justice whose principles are set forth in the Constitution.

      It’s hard to say (in part, no doubt, because the practice began informally).

      From at least the 18th century, defendants would often seek to plead guilty when arraigned in hopes of receiving a commutation (at the time, execution was the only authorized punishment for most felonies). Judges often tried to talk the defendant out of this plea and to have a trial instead. Some scholars looking at English cases in the 18th and early 19th centuries have found instances where it appears defendants were able to plead guilty to amended and lower charges — offenses, for instance, that allowed the death sentence to be commuted, or that were punishable by transportation instead of execution.

      In U.S. v. Ford, 99 U.S. 594 (1878), the prosecutor made an elaborate bargain with some defendants to secure their testimony against an accomplice: the Supreme Court found that some elements that the prosecutor had promised were beyond his authority, but appeared to recognize that some form of bargain along these lines was practiced and permissible.

      1. During the 1966 amendments to the federal rules of criminal procedure, the advisory committee noted that “The great majority of all defendants against whom indictments or informations are filed in the federal courts plead guilty. Only a comparatively small number go to trial.” Five years later, the Supreme Court noted that the practice of resolving “criminal charges by agreement between the prosecutor and the accused, sometimes loosely called ‘plea bargaining,’ is an essential component of the administration of justice.” *Santobello v. New York*, 404 U.S. 257, 260 (1971). And in 1974, Criminal Rule 11 was amended to provide a procedure for presenting and implementing plea agreements. So I’d say that the centrality of plea bargaining was pretty well-established by that time.

        I think it’s noteworthy that the increase in the practice seems to track pretty well with the expansion of procedural rights and protections for criminal defendants. I don’t think it’s feasible to have a functional criminal justice system that features a full-scale American-style trial for each defendant, or even a substantial portion of the defendants, and plea bargaining strikes me as superior to any other alternative I can think of.

        1. I don’t think it’s feasible to have a functional criminal justice system that features a full-scale American-style trial for each defendant, or even a substantial portion of the defendants,…

          If so, then is it possible the procedure needs to be more carefully controlled, and that we ought to think about what fundamental rights the defendant should have? Many of the protections seem to presume a trial. Perhaps things like overcharging ought not be allowed. Does Brady apply during plea bargaining? IANAL, so don’t understand the ins and outs, but it does seem to me that the process can be, and often has been, abusive. Ambitious prosecutors are dangerous. Political ideas notwithstanding, they can do you a lot more harm than the governor.

          and plea bargaining strikes me as superior to any other alternative I can think of.

          Are there improvements you would suggest?

          1. “Are there improvements you would suggest?”

            I would also like to hear Noscitur’s thoughts.

            I’ve wondered about capping the maximum ‘discount’ to 25% of the possible sentence or somesuch.

            It’s one thing if they catch a fellow red handed robbing a bank and he is willing to go for a 10 year sentence instead of 12 if he saves everyone the price of a trial.

            It’s another thing altogether when you’re innocent as driven snow but get to choose between a 20% chance of LWOP if the jury doesn’t like you or 5 years if you plea bargain. Heck, that’s bad even if you’re guilty – if your conduct deserves LWOP it’s wrong to let you out after 5 years, and if you’re innocent it’s wrong to make you serve one day.

            1. I’ve wondered about capping the maximum ‘discount’ to 25% of the possible sentence or somesuch.

              The possible sentence depends on the charges. And the prosecutor can decide what charges to bring. So there’s no way to prevent him from plea bargaining in advance of formally charging someone and accomplishing the same goal.

        2. and plea bargaining strikes me as superior to any other alternative I can think of.

          Eliminate about 75% of the penal code.

          1. The overwhelming majority of criminal defendants are charged with things that pretty much everyone agrees should be illegal, like assault, burglary, robbery, and murder. And as I’ve noted below, even a 75% reduction in criminal prosecutions wouldn’t make it feasible to have a full jury trial for every defendant.

          2. Which 75%?

            And how is Gorsuch’s concurrence in Dimaya working for you?

            My colleagues suggest the law before us should be assessed under the fair notice standard because of the special gravity of its civil deportation penalty. But, grave as that penalty may be, I cannot see why we would single it out for special treatment when (again) so many civil laws today impose so many similarly severe sanctions. Why, for example, would due process require Congress to speak more clearly when it seeks to deport a lawfully resident alien than when it wishes to subject a citizen to indefinite civil commitment, strip him of a business license essential to his family’s living, or confiscate his home? I can think of no good answer. …

            The implacable fact is that this isn’t your everyday ambiguous statute. It leaves the people to guess about what the law demands?and leaves judges to make it up. You cannot discern answers to any of the questions this law begets by resorting to the traditional canons of statutory interpretation. No amount of staring at the statute’s text, structure, or history will yield a clue. Nor does the statute call for the application of some preexisting body of law familiar to the judicial power. The statute doesn’t even ask for application of common experience. Choice, pure and raw, is required. Will, not judgment, dictates the result.

            Can’t have it both ways.

            We need clear and coherent laws.

        3. I don’t think it’s feasible to have a functional criminal justice system that features a full-scale American-style trial for each defendant,

          If it’s not, then too damn many people are being charged for non-crimes. We should abolish prohibition for a start to get the lid on this shit.

          -jcr

          1. >We should abolish prohibition for a start to get the lid on this shit.

            Viewed generously, drug offenses count for about a third of crimes. Assuming that legalizing drugs ended up being successful beyond all imagination and further reducing crime by a third, that still leaves a number crimes that couldn’t be feasilbe prosecuted with a full-scale American-style trial.

            1. Drug offenses directly account for a third of crimes. Indirectly, maybe another half, due to the way a large, violent black market fuels other crime. For instance, by hiring urban gangs for “muscle”, they’ve flooded the gangs with money, enabling them to grow vastly larger than they’d naturally be in a country without a war on drugs.

        4. plea bargaining strikes me as superior to any other alternative I can think of

          Ending the drug war (and forcing every drug warrior to switch to a decent livelihood)?

          1. It would be easier to end the “drug war” if we also stopped allowing addiction/being under the influence as a mitigating factor for other crimes.

        5. I think it’s noteworthy that the increase in the practice seems to track pretty well with the expansion of procedural rights and protections for criminal defendants. I don’t think it’s feasible to have a functional criminal justice system that features a full-scale American-style trial for each defendant, or even a substantial portion of the defendants, and plea bargaining strikes me as superior to any other alternative I can think of.

          I agree. But that just means we have too many laws and expect our justice system to do too much and solve too many problems. Justice is a limited commodity. There is only so much of it you can administer. And the more cases you expect your criminal system to try, the less actual justice is going to be done in each individual case. If it is not possible to give everyone who has been charged a fair trial, and it clearly isn’t, then we need to start figuring out who really needs to be tried and who does not.

  4. Unfortunately one of the main aspects of the plea bargain mechanism is massive overcharging, as a means of persuasion (read: coercion). Decoupling these is vital for any reform of that system. If all the courts do is reject the plea (and the bargain) is there any incentive for prosecutors to charge less aggressively?

    1. Loser pays. Every acquittal (even for someone is convicted on other charges) means the prosecutor must pay at least some of the defendant’s legal expenses from his (the prosecutor’s) pocket. Then he can go to Congress cap in hand and ask compensation for these totally unfair expenses.

      1. Empower the jury to let the prosecutor off the hook if the evidence is sufficiently evenly-balanced – eg, if the evidence meets the civil but not the criminal standard of proof.

        1. Better, empower the jury to rule not just guilty or innocent, but “overcharged”; Every time a prosecutor goes to trial with a case that isn’t supported by the evidence, he should be at risk himself.

  5. From the decision: “…. colonial grand juries ‘did not refuse to indict because of a lack of proof that the accused had violated a criminal statute. Rather, they refused because they fundamentally disagreed with the government’s decision to enforce these laws at all.'”
    The anarchist in me rejoices.

    1. It’s a two edged sword. That discretion kinda sucked in the Jim Crow south.

      1. So did prosecutorial discretion.

        1. In the words of that great philosopher, Forrest Gump:
          Progressive is as Progressive does!

          Whether in the Progressive Jim Crow south or today’s Progressive Plantations.

      2. Slight correction: “That discretion kinda sucked in the Progressive Jim Crow south.”

        1. The Jim Crow south wasn’t Progressive in any way, shape, or form, in either the early 1900’s or current sense of the term.

          1. What, Woodrow Wilson (who, incidentally, showed “Birth of a Nation in the White House and re-segregated the Armed Forces) wasn’t a Progressive who would endorse Jim Crow?

            Huh. Learn something new every day.

  6. Is he saying that he will no longer consider plea agreements which are to charges which have not been presented to a grand jury?
    Does he apply the same rigorous review to any category of civil lawsuits?

    In my state, trial court judges are elected every 6 yrs, so there is little chance that a stunt like this would fly once it becomes clear how expensive it would be–as well as how slow that would make the criminal justice system;
    maybe this guy should study the justice system in India, where every case turns into Jarndyce vs Jarndyce if he wants to see a system that reflects full participation and consideration of every lawsuit.

    This looks like a ploy by a judge who hates either the drug laws, or the immigration laws, or both.

    1. “how slow that would make the criminal justice system”

      You raise a good point; what we need is a constitutional amendment requiring speedy trials in criminal cases.

    2. Is he saying that he will no longer consider plea agreements which are to charges which have not been presented to a grand jury?

      I don’t think so, since all three of the defendants in the cases where he rejected agreements were indicted.

    3. This looks like a ploy by a judge who hates either the drug laws, or the immigration laws, or both.

      How would a judge who objects to restrictions on drugs and immigration — a libertarian dream — get past the Republicans’ authoritarian gatekeepers?

      1. Or the Democrats’ authoritarian gatekeepers, for that matter?

    4. Smooth,

      Did you read the opinions? There appears to be a large disconnect between the plea bargain/sentence, the original indictment, and the context of heroin overdoses in WV.

  7. Correct me if I’m wrong, but the federal court system doesn’t allow without-cause substitutions like some state courts do. This seems like a very good reason to not allow that in state courts – criminal defendants (and probably prosecutors) would always substitute against this judge if given the option.

  8. Regardless of its merits on the proper structuring of the criminal justice system, this approach seems to be inconsistent with the procedure for rejecting a plea outlined in Criminal Rule 11(c)(5).

    1. I’m curious how you arrive at that conclusion.

      Also, IIUC the following takes such error into account; Criminal Rule 11(h) Harmless Error. A variance from the requirements of this rule is harmless error if it does not affect substantial rights.

  9. The elephant in the room everyone seems to want to gloss over is that the criminal justice system would quickly grind to a halt if all plea bargains were rejected by judges. There are simply not enough court rooms and judges to deal with the number of cases. Way too many people are charged with way too many crimes, often times over charged, resulting in a case load the system can not deal with. Not saying I am happy with the current system, rather noting I don’t see any realistic options.

    1. I don’t know, if it is realistic. But would an alternative not be for over-eager prosecutors to be a little more cautious in what they prosecute? Also, the US system of government with its checks and balances comes at a price, a better equipped judicial system being part of it, is it not?

      1. But would an alternative not be for over-eager prosecutors to be a little more cautious in what they prosecute?

        That would certainly be an alternative, but I’m skeptical it would be a particularly viable one.

        There are about 75,000 felony trials in state courts in a given year. There are about 1,000,000 felony convictions. Even if prosecutors got a *lot* more cautious and screened out 90% of their current cases, that would still be a significant increase in their workloads, not to mention the substantial costs of so many offenses going unpunished.

        1. I sometimes wonder about things like this: 34 year old, 17-time convicted felon arrested for possession of stolen firearm.

          Similar stories seem all too common. Now, it may be that many of the 17 felony priors shouldn’t have been crimes at all – in which case whatever time was spent doing quickie plea bargains was time badly spent.

          OTOH, if he really did commit 17 terrible crimes, in the 16 years he has been an adult, then perhaps the sentences are rather too short. Perhaps we should spend the time to give him the full protection of a trial, and after the first few convictions started upping the sentences dramatically. Maybe having fewer frequent flyers would free up resources to be more careful about the people who may be innocent, or at least not yet incorrigible. Moreover, if you’re getting convicted once a year, presumably you’re doing a lot of bad things during the year that you aren’t getting caught for, and we all pay a price for that.

          1. I agree.

            You sort of have to wonder what happened on the 17th case, or maybe even the 5th or so.

            1. Well, we could have mandatory minimum sentences for felonies (like the 18th century, where the mandatory sentence for a felony was death). Or we could have “three strikes” laws where a third felony carries life in prison. Those on your side of the aisle tend to oppose such laws.

              1. We could. Or we could ask what these felonies were.

                Or we could have some sort of sentence increase for repeat offenders without a “three strikes” law.

                It really is not necessary to start hanging car thieves in order to improve matters.

                And yes, I think three strike laws are a bad idea, given how much leeway prosecutors have.

            2. I would be willing to bet that they were all or almost all plea bargains. Similar to the cases this judge rejected after reviewing the reports on the individuals involved. We see it with other issues too like DUI, etc.

              1. We could also cut back on what we consider to be felonies. It seems that more and more crimes are becoming felonious, despite how minor those crimes really are, at least compared to raping murdering, and defrauding widows of their life savings, etc.

        2. You seem to be taking a rather absolutist position, more or less arguing that since we can’t give everyone a trial the current system is fine.

          First of all, there is no law that says we cannot spend a nickel more on courts and lawyers than we do now, and maybe have more trials in certain types of cases.

          Second, if we are going to replace trial by jury with negotiated agreements, maybe we could improve the rules governing the negotiation. Do you disagree?

    2. Way too many people are charged with way too many crimes, often times over charged, resulting in a case load the system can not deal with

      Perhaps too much is criminalized then? Does anyone in the US, anyone at all, know absolutely everything that is illegal? How many pages (8.5″x11″, 12 point, times new roman,0.5″ margins) of laws is there? Event the police typicaly consult the books to figure out what to charge people with. Isn’t this a sign we need fewer clearer laws, not more?

  10. There is ? at a first glance ? a lot in the Judge’s CONSTITUTIONAL argument that “the people” should have a say in the criminal process. What I find interesting from a PHILOSOPHICAL point of view is how to commensurate the interest of the community of “the people” with the individual’s right to trade off his “life, liberty, the pursuit of happiness, property, religion, free speech, and free press” (as the Judge put it). Or, if they are unalienable by natural law, is the individual entitled to “alienate” them himself?
    As a sort of “fainthearted libertarian” of the socialist type, I can live with the idea that the community has rights, too, once you joined it by a deliberate decision of yours.
    Eugene is right, the decision is worth reading AND pondering.

  11. As a skeptic of plea bargains as used today, I tend to favor anything that reforms their use in practice.

    Prosecutors should not be overcharging and then using that threat to get a plea bargain (sometimes for something that the defendant never did).

    One possible solution is to require that all plea bargain offers be formal and include the highest charges that the prosecutor claims they can charge the suspect with. At that point, the suspect has the option to make a decision of rejecting the bargain but that binds the prosecutor with charging the suspect with EVERY charge they threatened and NO ‘lesser and included’ charges. Judges should then have the power to, when such a plea bargain was offered and rejected and after the verdict is handed down, to dismiss all the charges if the defendant were found “not guilty” on the bulk (relative severity times the number of counts) of the charges they were charged with.

  12. One of the fundamental features of the American system is that when people’s duties are expanded, often to confer rights on others, people inevitably respond by creating a new or relying on an existing alterantive structure that doesn’t have the duties.

    Slaves freed? Invent debt peonage. Workers have to many rights? Make everyone an independent contractor or a manager. Spouses have too many rights? Cohabit. Shareholders have too many rights? Create an LLC or some other structure. And so on.

    Whenever the conferring of rights makes things seem to onerous, people come up with a way out of it by getting rid of the context those rights apply to.

    Since a defendant doesn’t acquire a right to a lawyer until indictment, by doing all plea bargaining beforehand and making it contingent on waiving imdictment, lawyer, appeal, and everything, plea bargaining can be done without the defendant even to know what charges he might face, let alone getting any legal advice as to whether the charges have anything to them.

    1. According to Miranda you are entitled to a lawyer when arrested/detained not indicted. Much of what you said is not accurate.

  13. I’ve been saying for years that if the prosecutor offers a plea deal, then the government is admitting that the offered sentence is adequate to remedy whatever they think the defendant did, and if he decides instead to go to trial, that should be the limit of punishment should he lose.

    -jcr

    1. My opinion is that a really good plea deal is not an admission that the lower sentence is adequate, but rather an admission that they don’t have enough evidence to get a conviction from a jury.

  14. Wait, a right to a trial? Lol. Like they’ll ever let that happen. This judge will be smacked down quite forcefully I’m sure.

  15. Non-lawyer (possibly stupid) question. If the plea deal is for cooperation/information will the suspect now need to wait for the iudge’s ruling before providing it? Else this info/coop could be used to hammer him/her at trial. How else can the authorities decide the full value of the info/coop if the suspect now waits to provide it?

    1. As another non-lawyer, I don’t think this judge would have that much of a problem with a plea deal in exchange for cooperation/information against other defendants.

      His main problem with the plea deal in this case and the two other cases he cited where he rejected plea deals was that the justification offered for the plea deal was a generic efficiency/expediency that would apply to every case, there was no justification offered that was specific to the case at hand.

      With a cooperation/information deal, you would necessarily have justification specific to the case at hand.

  16. The opinion might be reasonable if the judge were writing on a blank slate. He is not. The U.S. Supreme Court long ago approved of plea bargaining. In doing so, it rejected the reasoning set forth by the judge.

  17. This is a judge who richly deserves to have all cases that fail to meet his personal standards for negotiated pleas assigned to him for trial and to be removed from office for dereliction of duty when he fails to meet the burden, since “justice delayed is justice denied.”

    Meanwhile, the nincompoops who fantacize that the system can continue to function without extensive plea bargaining might get an object lesson in reality.

  18. I can’t help but wonder: if a defendant is really guilty, then once a plea bargain has been made, why can’t a prosecutor simply go before a jury, and offer up the evidence, with the defense bringing up any mitigating factors, and the judge approving the sentence? The jury’s task, then, would be to accept or reject the plea bargain.

    And yes, I think in all circumstances, the jury should see the original charge, and the sentence the prosecutor wanted to pursue (as presented by the defense attorney, not the prosecutor), so that they could decide for themselves whether the plea bargain is justified.

    Too many people here think getting rid of plea bargaining is a bad thing, because it would introduce inefficiency into the system, thereby limiting who could be prosecuted. Be that as it may, however, I am not convinced that plea bargaining is conducive to helping innocent people demonstrate innocence; what good is a system that efficiently churns out convictions, but does so without reliably determining the guilt of those convicted?

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