3.3.1 Plea-Bargaining

Plea-bargaining refers to the exchange, between prosecutor and defendant, of reductions in charge for a plea of guilty. It is a sort of bargaining in the shadow of the law—though the idea of bargaining is a bit misleading, since there are going rates of exchange.^[55] The reason often given for why the prosecutor would offer a plea bargain and why the judge would accept (which in practice is typically the case) is that this is a quick and easy way to avoid the costs

[54] As was suggested in some newspaper accounts of looting that took place during the 1989 Miami riots (Miami Herald , January 18, 19, 1989).

[55] Malcolm Feeley, The Process Is the Punishment: Handling Cases in a Lower Criminal Court (New York: Russell Sage Foundation, 1979).

of trials and cope with heavy caseloads.^[56] Some scholars note, however, that plea bargains are not simply the result of a "threat of trial" by the defendant and a "threat of conviction" by the prosecutor, since often the defense couldn't afford a trial, and for some judges trials are so rare that they wouldn't mind one.^[57]

Plea-bargaining pervades the practice of legal punishment. By some accounts 90 to 98 percent of all cases are resolved without trial.^[58] Plea-bargaining is systematic, and sometimes even structurally induced. The New York Special Drug Court resolves felony drug cases in as little as six days rather than the usual six months, by offering repeat offenders charged with certain felony drug violations (for example, street-dealing of cocaine or crack) a reduced prison sentence in exchange for a plea of guilty before the case is presented to a grand jury. The defendant is told that if he does not accept the offer of the lower sentence that day, he will not be offered so short a sentence again. Often the defense attorney has little time to consider possible weaknesses in the prosecution's case, and the defendant has little time to consider the consequences of pleading guilty.^[59] Prior to the establishment of this policy, felony drug cases would require on average eight court appearances and about six months before defendants agreed to plead guilty. With the negotiated plea, cases are typically disposed of in less than two months.

[56] See Herbert S. Miller, William F. McDonald, and James A. Cramer, Plea Bargaining in the United States (Washington, D.C.: National Institute of Law Enforcement and Criminal Justice, Law Enforcement Assistance Administration, U.S. Department of Justice, 1978), p. v.

[57] Feeley, The Process Is the Punishment , pp. 186–87.

[58] See New York Times , February 12, 1975, p. 1; Feeley, The Process Is the Punishment , p. 186; and Suzanne Buckle and Leonard Buckle, Bargaining for Justice (New York: Praeger Publishers, 1977), p. 3 (but cf. p. 4).

[59] New York Times , February 6, 1988, p. 1.

That plea-bargaining allows tremendous savings in resources is a strong "utilitarian" argument in its favor.^[60] By one estimate, if we took all cases to trial we would have to quadruple the number of court personnel.^[61] But there are compelling retributivist objections to plea-bargaining. Retributive justice demands that we punish a criminal only because he has committed a crime; when a defendant cops a plea, however, he is punished for a lesser offense that he did not commit, an offense which in some jurisdictions needn't be based on what actually happened:

The judgment entered on the plea in such situations may be based upon no objective state of facts. It is often a hypothetical crime, and the procedure—authorized by statute—is justified for the reason that it is in substitution for a charge of crime of a more serious nature.^[62]

There have been cases of pleas to attempted manslaughter, a crime which is logically impossible.^[63] The retributivist might claim, then, that punishing a person who cops a plea violates the retributive principle that we punish only for an offense, in order to vindicate right.^[64] Punishment, the purpose of which is to express our condemnation of a wrong, loses its meaning when applied to a person who cops a plea, because it fails to take seriously the nature of that wrong.

[60] I use the word "utilitarian" here with some reservation, for the reason I explained in chapter 3, section 1, introduction.

[61] Comment, "Official Inducements to Plead Guilty: Suggested Morals for a Marketplace," University of Chicago Law Review , vol. 32 (1964), p. 167; cited in Buckle and Buckle, Bargaining for Justice , pp. 27–28.

[62] People v. Griffin , 166 N.E. 2d 684 (N.Y. 1960), cited in Abraham Goldstein, The Passive Judiciary (Baton Rouge: Louisiana State University Press, 1981), p. 41.

[63] Goldstein, The Passive Judiciary , pp. 42–43. Goldstein notes that not all courts allow pleas to hypothetical crimes. Arizona, for example, recognizes a "public interest in an accurate criminal record for the defendant."

[64] Cf. J. D. Mabbott, "Punishment," in Stanley Grupp, ed., Theories of Punishment (Bloomington: Indiana University Press, 1971), p. 48.

Perhaps this seems a trivial objection: the person who cops a plea deserves some punishment (if we assume that he wasn't coerced into confessing guilt although he was in fact innocent) and receives some punishment—what does it matter precisely how his offense is categorized? But an argument can be made that it does matter:

The distorting effect of inaccurate pleas is obvious. They make the world of crime and corrections a world of fictions…. Probation officers submit reports describing cases of rape or armed robbery to judges and correctional officials who are then obligated by principles of legality to treat the offenses as less than they plainly are…. The charge scale is both inflated and deflated by the tension between the real and the legal offense. The lesser offense is assumed to be masking a greater offense, inviting suspicions and inquiries to pierce the formal record.^[65]

The retributivist's criticism of plea-bargaining cuts even deeper. It's not just that to punish someone who cops a plea is to punish someone for a crime she didn't commit, but that for the retributivist, punishment must be deserved, and so plea-bargaining misses the point of why we punish. Kenneth Kipnis offers the analogy of "grade-bargaining" to make this point. He has us imagine the following agreement: If I graded your paper carefully, it would probably receive a D. If you would waive your right to a careful reading, I'd give you a B. Each of us would be better off: I don't have to spend time reading your paper, and you get a better grade. Most students would accept this bargain. But, Kipnis argues, this would be wrong. "Bargains are out of place in contexts where persons are to receive what they deserve."^[66]

[65] Goldstein, The Passive Judiciary , pp. 44–45.

[66] Kenneth Kipnis, "Criminal Justice and the Negotiated Plea," Ethics , vol. 86, no. 2 (January 1976), pp. 104–5. Kipnis's analogy is clever, but it is misleading in at least one respect. The professor chose to assign an essay, rather than an easily graded true-or-false exam; neither the state nor the prosecutor in particular similarly "chooses" among alternatives to having a criminal justice system. (Thanks to Steve Krasner for suggesting to me that Kipnis's analogy is misleading.)

Some criticize plea-bargaining also as a violation of due process and of the spirit of the adversarial system. Due process demands that the defendant be presumed innocent and not be coerced into confessing guilt.^[67] But there is a great likelihood that individuals faced with the risk of going to trial for a serious crime, especially if circumstances "look bad" for them, are psychologically coerced by the plea bargain into admitting to a lesser offense and accepting less severe, though certain, punishment.^[68] One case of such coercion has been described repeatedly in studies of plea-bargaining:

San Francisco defense attorney Benjamin M. Davis recently represented a man charged with kidnapping and forcible rape. The defendant was innocent, Davis says, and after investigating the case Davis was confident of an acquittal. The prosecutor, who seems to have shared the defense attorney's opinion on this point, offered to permit a guilty plea to simple battery. Conviction on this charge would not have led to a greater sentence than

[67] Herbert Packer, The Limits of the Criminal Sanction (Stanford: Stanford University Press, 1968), pp. 166–67.

[68] See Justice Brennan's dissent in N. Carolina v. Alford , 400 U.S. 25 (1970); and Conrad Brunk, "The Problem of Voluntariness and Coercion in the Negotiated Plea," Law and Society Review , vol. 13, no. 2 (Winter 1979). The retributivist R. A. Duff, in his Trials and Punishments (Cambridge: Cambridge University Press, 1986), criticizes plea-bargaining by appealing to his Kantian interpretation of the purpose of legal punishment. Duff argues that the essential purpose of punishment is to "promulgate and to justify to the citizen rules which she can and should see that she ought to obey" (p. 144). Plea-bargaining undermines this purpose: "[I]f we obtain a guilty plea by offering [a defendant] irrelevant and improper inducements or threats, which are meant to provide her with a purely prudential motive for pleading guilty, that plea loses its meaning and its value; and we no longer address or respect her as a rational agent. Such induced guilty pleas are no doubt useful … but they should have no place in a just and rational criminal process; for they are destructive of its proper ends and values" (p. 141).

thirty days' imprisonment, and there was every likelihood that the defendant would be granted probation. When Davis informed his client of this offer, he emphasized that conviction at trial seemed highly improbable. The defendant's reply was simple: "I can't take the chance."^[69]

In this case and others like it, not only is due process violated by the coercion of a bargain that in effect denies the defendant his right to trial, but the result of the negotiated plea is to punish an innocent person, which violates the weak "negative retributive principle."^[70]

Plea-bargaining seems inconsistent with the ideals the retributivist finds immanent in the practice of legal punishment. A fully committed retributivist might claim that punishment of someone who cops a plea is not really punishment and should not be a part of the practice. There is a problem with this position, though. One must wonder how the retributivist can claim to have identified the ideal immanent in the practice if that ideal contradicts such a pervasive feature of the actual practice. Rather than dismiss such a significant part of our actual practice because it violates the retributive ideal, we might wonder whether the retributivist has got that ideal right. Plea-bargaining is just one example of prosecutorial discretion, and most social scientists agree that discretion penetrates the criminal justice system through and through. In fact, the

[69] Albert Alschuler, "The Prosecutor's Role in Plea Bargaining," University of Chicago Law Review , vol. 36 (Fall 1968), p. 61; cited in Kipnis, "Criminal Justice and the Negotiated Plea," p. 98.

[70] It would be impossible to know how many such cases there are, since we can't know for certain whether the defendant really was innocent. To the accusation that due process is violated, one might respond that the defendant maintains his right to trial even with plea-bargaining, and that the reason he avoids trial is not because the bargain coerced him but because he is uncertain about the outcome of the trial process, of its ability to determine the truth, and it is this uncertainty that is the coercive element. I find this response unconvincing. The uncertainty over whether the trial will determine the truth of his innocence creates unease and anxiety, but is not coercive.

argument is made, discretion is an essential feature of the practice:

If our view of the courts is correct, efforts to banish bargaining from the courtroom will be futile; their most likely result will be to drive bargaining into more latent forms than it now takes and to make the protection of a clandestine system a powerful interest of all participants. In such a circumstance, the prospects for reforming bargaining will be much worse than they now are.^[71]

The uncompromising retributivist sticks to her ideal in the face of facts about the actual practice that contradict that ideal. For her, such facts don't deny the ideal, but, rather, indicate how strong the need is for practitioners to become theoretically informed and for the actual practice to be reformed thoroughly by abolishing plea-bargaining. I do not find that position persuasive. As an immanent critic, the retributivist is committed to deriving her ideals from existing practice, and in the face of facts that point to how discretion is a pervasive, even an essential, feature of that practice, the retributivist who is unwilling to accommodate those facts and readjust her ideals is no longer an immanent critic. Immanent criticism requires adjusting ideals in light of the facts. But the retributivist need not give up the ideal that punishment expresses society's condemnation for acts it regards as wrong and that it vindicates right, even in the face of facts suggesting that this ideal is violated in the actual practice. There is a moderate retributive position that acknowledges the necessity of some discretion in the criminal justice system if that system is to maintain itself so that the retributive ideal can be attained at all. This moderate retributivism adjusts the account of the ideal practice to take into account the facts: there is a great deal of discretion in the system, and plea-bargaining is a pervasive, even essential, feature of the practice. Rather than oppose plea-bargaining in principle, the moderate retributivist understands

[71] Buckle and Buckle, Bargaining for Justice , p. 164.

plea-bargaining to be a necessary expedient for maintaining a system that lets us mete out just deserts at all; plea-bargaining is a sacrifice of justice for the sake of justice. The moderate retributivist can still be critical of plea-bargaining, by insisting that we negotiate pleas only when doing so is necessary for the maintenance of the practice through which we attain our ideals, and that when we negotiate pleas we do so in a way consistent with retributive ideals—for example, that we insist the plea offense be commensurate in moral gravity to the actual offense, so that even though a bargain is made, the demands of justice are satisfied. This retributivist does not give up her ideals, but she readjusts them to accommodate an implacable reality.^[72]