The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.