The classic “you’ve come a long way baby” mantra from the world of tobacco advertising has an analogous application to plea bargaining. Fifty years or so ago, plea bargaining was just emerging from the shadows of the perception of our trial courts, but today it is recognized as occupying the central position in understanding the ways justice is allocated. The final acknowledgment of the “long way” plea bargaining has come came bluntly in the Supreme Court’s 2012 decision in Missouri v. Frye[1] in which Justice Kennedy, writing for the majority, quotes a prominent law review article which concluded that “[Plea bargaining] is not some adjunct to the criminal justice system; it is the criminal justice system.”[2] Recognizing the centrality of plea bargaining, though, still leaves to be explored a host of policies and practices associated with plea bargaining
I address three of these issues: “going rates” in the courts, informing defendants about the implications of their pleas, and tackling unfairness in the plea bargaining process (conveniently summarized in the GRIDTU acronym). The “going rate” section is less a Court-or policy-driven set of observations than it is something that emerges from social science research, and which in turn invites more social science research and also carries significant implications for sentencing reform; the “informing” section emerges from three relatively recent Supreme Court cases,[3] and has important possible consequences for the plea bargaining process; and the “tackling unfairness” section is obviously broader than the first two, and would take volumes to discuss in any systematic way. Instead I use this third section to propose several reforms to the plea bargaining system going forward.
Often, the bottom line of the plea bargaining process – that is, the specific sentence the defendant receives[4] – is overlooked. When one examines the pleas received for similar sentences across jurisdictions, it becomes clear that no one “price” is right for any particular crime. This fact means that “the number” – the sentence – is not linked in any direct or validated way to any of the many goals of the criminal justice system. Most studies of sentence length show no deterrent effect for lengthening sentencing, though they do occasionally show some modest effects for speed, certainty of sentence, and a partial benefit for incapacitation.[5] If these sentences do not aid in deterrence, it is hard to pinpoint, other than for normative reasons, why any one specific sentence for a crime should be valued over another.
So where do these sentences come from? The basic answer is no one knows. As frustrating as that might seem, the “going rates” for crimes seem to exist simply because that’s what they always were. In recent years, with the growing efforts to regularize sentencing with various forms of sentencing guidelines, many attempts at reforming sentences have been made, mostly based on prior record and the nature of the crime. But even with the appearance of rigor engendered by the guideline or determinant sentencing numbers, there really is very little of a validated link between any of the “going rates” and the goals of the criminal justice system. In short, no price, or sentence, is naturally right or wrong.
Further, Professor John Pfaff of Fordham Law School recently argued in a provocative summary of the current state of the criminal justice system that for prosecutors to address the “mass incarceration” problem in our society, there needs to be a change in the “price” of offenses for many categories of crime (and not just for often singled out “low hanging fruit” of drug cases).[6] Can this be done? Sure. But though this can begin by changing many rigid guidelines and mandatory sentences, more importantly, what remains clear is that prosecutorial discretion has important implications for what the “going rates” are. These “rates” are not set in stone, have no necessary public policy benefits, and can be changed at the discretion of prosecutors across the country.[7]
In Padilla v. Kentucky, the Supreme Court ruled that failure of a defense attorney to inform a client that a collateral consequence of their felony plea could lead to the client’s (in this case, a forty-year permanent resident in the United States) deportation constituted deficient performance by the attorney.[8] Two years later, in Missouri v. Frye [9] and Lafler v. Cooper, [10] the Court went further and ruled that failure of an attorney to tell a client about plea offers made by a prosecutor, or failure of the attorney to adequately explain the way a plea could affect a judge’s sentence, constituted ineffective assistance of counsel. These cases indicate certain expectations of attorney performance in plea negotiations, particularly with the duties of attorneys to inform their clients of the possible implications of plea bargains as spelled out in Padilla.
Padilla recognized that a client had a right to be explicitly informed that that deportation was a possible collateral consequence of his plea. What remains unexplored are what the other kinds of collateral consequences that a defense attorney should be required to disclose during plea negotiations are. Should an attorney be required to inform a defendant about the effects of the plea on the defendant’s eligibility to vote in the future? Or the defendant’s eligibility to qualify for government loans, student financial aid, and employment opportunities? There is a vast recent literature on the collateral consequences of felony sentences,[11] and it is hugely important to continue to explore said consequences and whether defendant’s have a right to be informed of them before taking any guilty plea.
Two personal examples illuminate the importance that explaining collateral consequences could have on individual decisions and on an individual’s sense of fair play. In my counseling of pre-law students, I invariably speak with a few students every year who have had prior (usually minor) convictions in criminal court, most commonly for marijuana offenses. Almost without exception they were never told the implications of their pleas for subsequent stages in their lives. Suddenly, though, questions about prior criminal activity appearing on the law school applications send shock waves through these students – especially in how the convictions could affect admission to law schools and the bar. Similarly, and closer to home, last year I received a minor moving traffic citation, one which carried several “points” to be put on my license and these points almost always increased insurance premium payments. At court, I was accompanied by an attorney, and as is characteristic of these traffic courts he was able to, in exchange for my plea, obtain a charge which carried no “points.” Surprisingly, though, when I received my insurance premium notice for the following year, I learned that despite the plea, my premium would still be increased. Like my students, and the obviously much more impactful case of a defendant facing deportation, I was never informed about the collateral consequence of my plea.
Obviously, there are a host of questions that follow from this cursory discussion about informing defendants about collateral consequences of pleas. How might providing this information affect decisions to plead? Should they? What collateral consequences (in addition to effects on immigration status) should the Court insist upon an attorney informing clients? How important is informing (or not informing) a client about collateral consequences on the client’s lessons about “procedural justice” in the resolution of his case?[12] These questions form the frontier of further assessments of plea bargaining collateral consequences that Padilla first established, but by no means settled.
Many of the reforms I’ve suggested, especially when it comes to greater judicial involvement in plea bargaining, have been suggested in the past.[13] However, there has been little discussion about the implications Padilla has had in introducing a new facet of criminal law. In his scathing dissents in Lafler, Justice Antonin Scalia noted that “the Court today opens a whole new field of constitutionalized criminal procedure: plea-bargaining law.”[14] Scalia may have been correct in his prediction, but it is not clear why this would be a bad thing. As then-Professor Stephanos Bibas responded to Scalia’s lament: “[I]t is about time the Court developed some plea-bargaining law.”[15]
Ultimately, further developments in plea bargaining law may come from outside the judiciary. The recent election of Larry Krasner, a former civil rights attorney, as the District Attorney in Philadelphia might foreshadow the most interesting plea bargaining reforms of all. Krasner is not the only prosecutor recommending significant changes, but few come with Krasner’s top-to-bottom reformist bent. Of course, only time will tell how consequential these changes are, but it would be hard to go beyond the range of reforms Krasner is attempting. Specifically, Krasner has instructed his deputies to stop negotiating plea bargains to get the highest possible sentencing and instead focus on lighter punishments, including offering house arrest or diversion as alternatives to incarceration. Other intriguing changes include eliminating cash bail for low-level offenders who would otherwise just accept a plea bargain just to “get it over with” and get out of jail, and outright dismissals of many marijuana arrests. But perhaps the most interesting of his proposals is to have his prosecutors inform of the judge of the cost of the sentence the prosecutor recommends. Krasner’s office estimates that it costs $115 daily to house someone in prison, or $42,000 per year. He wants prosecutors and judges to know this, and explicitly acknowledge the potential costs when they suggest sentences. How this information will affect their decisions without imposing a cap on how much they can “spend” in any given time period is a matter that awaits careful research in the years ahead. [16] Collectively, the Philadelphia experiment is an important case study of how more than piecemeal change in plea bargaining practices might be effectuated.
Plea bargaining, including plea bargaining law, has emerged as a central piece of understanding prosecutorial outcomes. But this understanding means little if it is not paired with an appreciation of the sentences that the plea bargaining machine currently produces. Plea bargained sentences can most definitely be associated with mass incarcerations, though as argued above, these could just as well be associated with dramatic decreases in incarcerations. Other implications of plea bargaining that also need to be considered include concerns about the collateral consequences suffered by the millions who acquiesced to having criminal records by accepting a plea deal. Defense attorneys must be required to advise their clients of these collateral consequences of pleas as a component of “effective assistance of counsel” in plea presentations to clients.
These are exciting times to be revisiting prosecutorial plea bargaining behavior. The federal level has seen a dramatic switch from Eric Holder’s reform-minded policies recommending lower sentences to Jeff Sessions’ insistence that U.S. Attorneys push for the harshest sentences possible The current federal approach stands in sharp contrast to some reforms on the local level, particularly with the innovative reforms in plea practices and prosecutorial posture being championed in Philadelphia. Liberal reformers might conclude that it is the best of times in a place like Philadelphia while simultaneously being the worst of times at the federal level. What we learn by systematic empirical studies of these changes – and not simply from fanciful rhetoric bemoaning or touting policy changes – will contribute to our growing understanding of what and how criminal case processing practices can be reformed and contribute to enlightened goals for the criminal justice system.
[1] 566 U.S. 134 (2012).
[2] Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 Yale L. J. 1909, 1912 (1992).
[3] See, e.g., Missouri v. Frye, 566 U.S. 134; Lafler v. Cooper, 566 U.S. 156 (2012); Padilla v. Kentucky, 559 U.S. 356 (2010).
[4] Of course, there are other important outcomes of the plea process as well – dismissals, diversionary sentences, etc. Here, however, we will just discuss sentencing outcomes.
[5] See Nat’l Research Council, Deterrence and Incapacitation: Estimating the Effects of Criminal Sanctions on Crime Rates (Alfred Blumstein, et al. eds., 1978). See also David Roodman, The Impacts of Incarceration on Crime (Open Philanthropy Project, 2017).
[6] See John F. Pfaff, Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform 31–36 (2017).
[7] Trying to understand “going rates” implicates a complex mélange of factors. To name just a few, legislative prescriptions, “WillieHorton” concerns, jail capacity, jurisdictional tradition, all combined in interesting, intriguing, and difficult to unpackage ways to contribute to local “going rates”. See id. at 51–77, 127–59
[8] 559 U.S. 356 (2012).
[11] See, e.g., James B. Jacobs, The Eternal Criminal Record (2015); Invisible Punishment: The Collateral Consequences of Mass Imprisonment (Marc Mauer et al. eds., 2002).
[12] For an excellent general discussion on procedural justice, see Tom R. Tyler, Why People Obey the Law: Procedural Justice, Legitimacy, and Compliance (2006).
[13] See, e.g., Albert Alschuler, Lafler and Frye: Two Small Band-Aids for a Festering Wound, 51 Duq. L. Rev. 707 (2013); Susan R. Klein, Monitoring the Plea Process, 51 Duq. L. Rev. 559 (2013); Russell D. Covey, Plea Bargaining after Lafler and Frye, 51 Duq. L. Rev. 595 (2013).
[14] Lafler, 566 U.S. 156 at 175 (Scalia, J., dissenting).
[15] Stephanos Bibas, Taming Negotiated Justice, 122 Yale. L.J. Online 35, 35 (2013).
[16] Putting a cap on how much can be “spent” on sentences in a year by a prosecutor or a judge necessarily forces hard choices about who gets which sentence. This is reminiscent of the calculations necessitated by comparably putting a cap on criminal sentences based on prison capacity. For an excellent discussion of how prison capacity can affect sentence length, see Dale G. Parent, Structuring Criminal Sentences (Daniel J. Freed, ed., 1988).
*Milton Heumann is a Distinguished Professor of Political Science at Rutgers University. The author would like to thank Anu Chugh, a rising senior at Rutgers University, for her invaluable research assistance on this article.