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Unformatted text preview: Wertheimer, Freedom, Morality, Plea Bargaining, and the Supreme Court Source: Philosophy & Public Affairs, Vol. 8, No. 3 (Spring, 1979), pp. 203-234 Alan Background Most Cases are Plea Bargained Nearly all cases are plea-bargained Rinat Kitai-Sangero, Professor of Law, College of Law and Business, 2016, Akron Law Review, Plea Bargaining as Dialogue, ? abstract_id=2701413p. 63-4 To say that plea bargaining "is an essential component of the administration of justice" n1 is a trite understatement. Plea bargaining affects every aspect of the criminal justice system; n2 it constitutes to a large extent the course of criminal justice today. n3 Most trials are withdrawn, and the vast majority of convictions are attained through plea bargaining. n4 It is not surprising then, that the United States Supreme Court attaches procedural protections to the plea bargaining process, such as the right to effective assistance of counsel. Plea bargaining makes up most of criminal justice system Rinat Kitai-Sangero, Professor of Law, College of Law and Business, 2016, Akron Law Review, Plea Bargaining as Dialogue, Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 Yale L.J. 1909, 1912 (1992) (stating that "it is the criminal justice system."); Stephanos Bibas, Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110 Yale L.J. 1097, 1150 (2001) (stating that "our world is no longer one of trials, but of guilty pleas."). n4. John H. Langbein, Torture and Plea Bargaining, 46 U. Chi. L. Rev. 3, 9 (1978); Markus Dirk Dubber, American Plea Bargains, German Lay Judges, and the Crisis of Criminal Procedure, 49 Stan. L. Rev. 547, 551-52 (1997); Bibas, supra note 3, at 1100. See especially Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012) (stating that "ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas."). 97% of federal cases are resolved by plea bargain Holly P. Pratesi, JD, Spring 2016, Brooklyn Law Review, Waive Goodbye to Appellate Review of Plea Bargaining: Specific Performance Of Appellate Waiver Provisions Should Be Limited To Extraordinary Circumstances, , p 1244-5 Although jury trials are championed in American jurisprudence, defendants may forego a trial in favor of entering a plea of guilty or nolo contendere. n46 In fact, over 95% of all criminal cases in state courts are resolved by a guilty plea, n47 and up to 97% of federal criminal cases are disposed of by plea bargains. Pleas Fall Under Criminal Procedure Rules Please under the federal rules of criminal procedure Holly P. Pratesi, JD, Spring 2016, Brooklyn Law Review, Waive Goodbye to Appellate Review of Plea Bargaining: Specific Performance Of Appellate Waiver Provisions Should Be Limited To Extraordinary Circumstances, , Federal Rule of Criminal Procedure 11 governs the process of entering a plea. n49 It sets out stringent guidelines a court must follow before accepting a plea of guilty or nolo contendere. The court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, a litany of rights. n50 First and foremost, the defendant must be advised that he or she has the right to plead not guilty and persist in such a plea. n51 The defendant must be made aware of the rights he or she would be guaranteed at trial: the right to representation by counsel (appointed by the court if necessary), the right to a trial by jury, the right to "confront and cross-examine adverse witnesses," the right to testify and present evidence (as well as the competing right not to be compelled to be a witness against himself or herself), and the right to compel the appearance of witnesses. n52 The court must also include in its colloquy with the defendant that the defendant waives the aforementioned trial rights, the nature of any charge to which the defendant is pleading, any maximum possible penalties the defendant may face--fine, imprisonment and post release supervision--as well as any mandatory minimum penalties, applicable forfeiture, and the court's ability to order restitution or "obligation to impose a special assessment." n53 The court must ensure that the defendant is aware of the method by which the court will compute the defendant's sentence. n54 It is also incumbent upon the court to inform the defendant of any provisions in the plea agreement in which the defendant waives the right to appeal or "collaterally attack the sentence." n55 Finally, a defendant who is not a U.S. citizen must understand that if convicted, the defendant may face a host of immigration consequences. n56 The court is also required to ensure that a plea is voluntary and determine the factual basis for the plea. n57 A defendant may withdraw a guilty plea "(1) before the court accepts the plea, for any reason or no reason; or (2) after the court accepts the plea, but before it imposes sentence" if the court rejects the plea or the defendant shows just cause. n58 After the court has imposed a sentence, the defendant may not withdraw a plea of guilty; it can only be set aside on direct appeal or collateral attack. n59 The Supreme Court outlined the potential benefits of the guilty plea and often concomitant plea bargain in Blackledge v. Allison. n60 The Court noted that the defendant "avoids extended pretrial incarceration and the anxieties and uncertainties of a trial, he gains a speedy disposition of his case, the chance to acknowledge his guilt, and a prompt start in realizing whatever potential there may be for rehabilitation." n61 Furthermore, it promotes judicial economy and conservation of prosecutorial resources. n62 Finally, the general public need not be further subjected to the risk of offenders "who are at large on bail while awaiting completion of criminal proceedings." n63 The Supreme Court has not, however, focused solely on the benefits of the plea bargaining process. In Brady v. United States, where the Supreme Court held that a guilty plea must be knowing and voluntary, the Court cautioned that "a guilty plea is a grave and solemn act to be accepted only with care and discernment." n64 The Court further emphasized that "[c]entral to the plea and the foundation for entering judgment against the defendant is the defendant's admission in open court that he committed the acts charged in the indictment." n65 Thus, where a criminal defendant is forced to stand as a witness against himself, though normally shielded by the Fifth Amendment from being compelled to do precisely that, there must be a "minimum requirement that his plea be the voluntary expression of his own choice." n66 A defendant's plea is not only an admission of past conduct, but it is his or her "consent that judgment of conviction may be entered without a trial--a waiver of his right to trial before a jury or a judge." n67 Despite this rhetoric, guilty pleas are usually not accepted with such solemnity. n68 Criminal defendants often lack the resources, sophistication, and adequate representation n69 to proceed to trial or negotiate the best possible bargain. Therefore, the government's inclusion of waivers of appellate rights further isolates the plea-bargaining process and written plea agreements from adequate oversight and judicial review. Background FYI – Background Schehr & French, 2016, Dr. Robert Schehr is a Professor of Criminology and Criminal Justice at Northern Arizona University, Chelsea French recently graduated with a Master's degree in psychology with an emphasis in neuroscience from San Diego State University. Her research focused on "Signal Detection Theory and Cross-Modal Priming: Sensory Memory in Alzheimer's Disease" and "Hippocampal and Orbitofrontal Involvement in Taste, Cognition and BMI." Albany Law Review, Mental Competency Law And Plea Bargaining: A Neurophenomenological Critique, , p. 1101-02 Despite the Supreme Court's enthusiasm for plea bargaining expressed in Brady, the case law associated with plea bargaining cautions against accepting guilty pleas without first assessing whether the plea was made "knowingly and voluntarily." n35 A [related concern pertains to mental competency. These requirements for accepting a guilty plea are codified into Federal Rule of Criminal Procedure 11(b)(1), where under oath and before a judge in open court, a defendant will be informed of the abdication of rights brought about by a guilty plea, the right to plead not guilty and proceed to trial, the charges being brought against him or her, and the minimum and maximum sentence. n36 The court must also determine whether there is a factual basis for the plea. n37 Defendants may withdraw a plea prior to the court's acceptance of it, or prior to the imposition of sentence if the court rejects the plea under 11(c)(5); n38 or the defendant can show a fair and just reason for the withdrawal. n39 A. The "Knowing" Criteria A plea that is knowingly entered into is made by a defendant whom is, "fully aware of the direct consequences" of the plea n40 as reflected by the record; in other words, the transcript must show that the defendant is aware of the constitutional rights they are relinquishing by pleading guilty. n41 Additionally, the defendant must also understand the nature of the charges against him and the record must also reflect this. n42 In Bousley v. United States n43 the plea was considered intelligent so long as the defendant received ""real notice of the ... charges against him,'" in satisfaction of Federal Rule 11. n44 No cognizable comprehension of the charges was required. n45 Important, in Bradshaw v. Stumpf n46 the plea was considered knowing despite the defendant's post-sentencing claim that he didn't understand the specific intent requirement for aggravated murder. n47 The Court held that because the defendant's [*1099] attorneys had explained the elements of the charge to him, and that this was affirmed in open court, the defendant's acceptance of the plea was knowingly made. n48 Of course, the gulf between explanation and understanding may be quite wide indeed. The mere fact that attorneys for the defendant explained the intent requirement by no means guarantees that the defendant understood that explanation. But consistent with Federal Rule 11(b)(1), all that is required of the judge when accepting a plea is the elucidation of the charges being brought against the defendant, and the minimum and maximum sentence. n49 Once recited in open court, and affirmed by the defendant, the knowing criteria is satisfied. n50 B. The "Voluntary" Criteria The Supreme Court has deemed pleas voluntary when they are made absent threats and misrepresentation, n51 and requires the plea to be "an intentional relinquishment" of constitutional rights. n52 According to Federal Rule 11(b)(2), the court must also assess the voluntariness of the plea. Recitation of the Federal Rule simply requires the judge in open court to receive an affirmative response from the defendant to the statement: "the plea is voluntary and did not result from force, threats, or promises (other than promises in [the] plea agreement)." n53 The Supreme Court has noted that "the concept of "voluntariness' contains an ambiguous element." n54 In Parker v. North Carolina the majority decision dictated that a plea is not involuntary if the defendant enters the plea seeking to avoid the death penalty if convicted at trial, and that even if a defendant involuntarily confesses, the plea is constitutional and voluntary because of the significant amount of time that had lapsed between the confession and a plea. n55 In addition to ruling that the state's threat of a harsher punishment does not undermine the voluntariness of a plea, the Supreme Court has also ruled that the threat of capital punishment with a verdict of guilty when pursuing trial does not constitute an involuntary plea, n56 despite the ruling in United States v. Jackson n57 two years earlier that the Federal Kidnapping Act, which could only have the death penalty imposed by a jury, was unconstitutional "because it makes "the risk of death' the price for asserting the right to [a] jury trial, and thereby "impairs ... free exercise' of that constitutional right." n58 Ultimately the reasoning in Brady influenced subsequent Supreme Court decisions regarding the voluntariness of pleas. In United States v. Farris n59 the Fourth Circuit Court of Appeals held a plea to be voluntary even though the defendant was threatened with deportation to Guantanamo Bay if convicted at trial. n60 In some cases there's no need for the lower court to address the question of voluntariness so long as the totality of the circumstances is suggestive of fair procedure. In United States v. Ward, n61 for example, the court found that the state court judge failed to address the defendant in open court to discern the voluntariness of the plea, a violation of Rule 11(b)(2). n62 The plea was considered voluntary on appeal because counsel was deemed effective, and there was no apparent coercion. n63 Even threats made by a prosecutor to re-indict a defendant with harsher charges should the defendant refuse to plea has been determined by the U.S. Supreme Court to be a plea that was voluntarily entered into. n64 Threatening a defendant with harsher punishment following federal prosecution should he refuse to plea to state charges is considered non-coercive, non-vindictive, and voluntary. n65 A plea procured following threats to prosecute a family member or some other third party is considered by the courts to be voluntary. n66 Perhaps the most troublesome opinions arising from questions addressing voluntariness are those where a defendant claims third party coercion, but where they've stated in open court that they were voluntarily entering the plea. n67 Following Blackledge v. Allison, n68 an affirmative declaration of voluntariness "in open court carries a strong presumption of verity." n69 Of greatest concern is the faulty presumption that Rule 11(b)(2) in any way guarantees that a defendant's open court statements are made voluntarily. n70 In United States v. Padilla-Galarza, n71 a motion to withdraw a plea was rejected because the court considered the plea to have been voluntarily entered into despite the defendant's claim that he had been coached through the hearing by his defense attorney, and he was suffering from mental impairment. n72 Because the defendant stated in court that he understood the agreement ("knowing"), the defense attorney did not raise any concerns about the defendant, and the court found the defendant "articulate and in command of himself," the motion to withdraw was denied. n73 United States v. Hernandez n74 affirmed the voluntariness of a plea because the defendant stated in open court through a translator that he had discussed the plea with his attorney, and he understood it. n75 Subsequently he would claim that he had been misled by his attorney regarding the consequences of the plea. n76 In Corbitt v. New Jersey n77 the majority ruled that plea-bargaining did not violate the equal protection clause of the 14th amendment. n78 Like previous court opinions the plea met constitutional knowing and voluntary standards if the record indicates that the defendant understood the charges against him and entered the guilty plea without threats or false promises. The majority opinion in Corbitt held that promising a defendant leniency in sentencing to induce a guilty plea was not suggestive of a threat of retaliation should the defendant choose to exercise his right to trial where, if he was to be found guilty, he would likely face far more severe punishment. n79 There are costs and benefits to both pursuing a trial and entering the guilty plea and "equal protection does not free those who made a bad assessment of risks or a bad choice from the consequences of their decision." n80 C. Mental Capacity Despite the "reasoned choice" position taken by the Ninth Circuit Court of Appeals with regard to the standard of competency in the Moran case discussed below, the test of mental competency to plea is the same as the one used to determine whether one is fit to stand trial "understand and assist." n81 Case law in this area suggests that challenging the voluntariness of a plea based upon mental competency is nearly always a loser. For example, in United States v. Morrisette, n82 the plea was considered valid despite the fact that the defendant was heavily medicated on anti-psychotic drugs. n83 Since the court was convinced that the medications did not affect the defendant's cognitive ability, and since the defendant appeared coherent while in court, the plea was voluntarily entered into. n84 Likewise in Dennis v. Budge, n85 the Ninth Circuit Court of Appeal found the defendant competent to enter his plea despite the defendant's record of mental illness and suicide attempts. n86 The Court was convinced that a psychologist's evaluation, and the defendant's courtroom demeanor were suggestive of competency. n87 While the overwhelming case law in this area upholds pleas despite claims challenging mental competency, there are a few that do not. Burt v. Uchtman n88 is one such case. n89 Here the Seventh Circuit invalidated a plea because the court failed to conduct a competency hearing. n90 It was known to the court that the defendant had suffered severe mental problems, was using psychotropic medications, and had difficulty remaining alert. n91 Important for our purposes is the Eighth Circuit Court of Appeal opinion in Shafer v. Bowersox. n92 Here, the Court ruled the plea invalid because experts had established that the defendant tended to make, "impulsive and irrational decisions." n93 Despite being in possession of this information prior to accepting the plea, the court none-the-less failed to hold a competency hearing. n94 What's interesting in regard to this case and the language used in the Eighth Circuit opinion is that one need not be mentally ill to make "impulsive and irrational decisions," in fact as we shall establish below, it's quite simply a very human way to act. n95 D. The Impact of Knowing and Voluntary Case Law on Pleas Each of the cases discussed in the previous section helped to shape the legal definition of "knowingly and voluntarily" with regard to the constitutionality of guilty pleas in ways that raise serious concerns for due process. As evidenced by the majority opinions in these decisions, the U.S. Supreme Court and the many circuit courts that have ruled on the knowing and voluntary and mental competency claims demonstrate a woeful lack of scientific understanding regarding a defendant's ability to make decisions in their own best interest and fail to take contemporary brain science and phenomenological factors into consideration when determining whether a plea is voluntary. While defendants who are found legally incompetent cannot voluntarily plead guilty, n96 the two prong test established in Dusky v. United States n97 and used to determine mental incompetence also fails to take the ability of a defendant to make reasonable decisions into account. While case law surmises that the defendant's obvious guilt and a large body of inculpatory evidence are the primary motivators for guilty pleas, scholarly research demonstrates that there are innumerable environmental and biological factors that influence the decision making process to varying degrees. n98 The philosophy behind these court decisions is hindered by a colloquial view of how humans make decisions, and a deeply entrenched philosophical commitment to viewing human beings as fully reasonable and rational cost calculators who will seek to maximize pleasure and minimize pain. As we shall demonstrate, this is not always the case. The assumptions articulated by the various courts of appeal concerning plea bargaining - the assumption that the decision to plea is made "knowingly and volu...
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