The NY Times recently published an op ed using the podcast Serial to argue that the defendant would have been better off taking a deal due to the trial penalty. The defendant, after a trial, was sentenced to life in prison plus thirty years. By contrast, the op ed reports that the average murder sentence was nineteen years in prison the year of the defendant’s conviction. The op ed also raises the question of whether the defendant had incompetent assistance of counsel if his lawyer failed to try to negotiate a plea deal. To read the piece, see here .
The op ed recommends that the proposal last year by Judge Rakoff, for plea bargaining conferences, would be one way to avoid the problem of the trial penalty.
The NY Daily News last year reported Judge Rakoff’s proposal as calling for: “a mechanism that would designate junior judges to hear evidence and issue plea bargain recommendations early on in cases. The junior judges, called magistrate judges in the federal system, would hear from prosecutors and defense lawyers separately before weighing in. Their recommendations wouldn’t be binding. Rakoff says the setup, which could begin as a pilot program, would bring plea bargaining out from behind closed doors and relieve pressure on defendants deciding whether to risk a longer sentence by heading to trial.” For the full interview with Judge Rakoff see here .
I am not convinced that simply increasing judicial involvement in plea bargaining will help to decrease the problem of the trial penalty. In part because the proposal does nothing to address the high potential sentences, which are often mandatory on conviction, that are embedded into the law. Judges generally don’t have authority to dismiss charges, enhancements, or otherwise move around mandatory sentencing provisions. Another problem with this proposal is the high number of judges at both the federal and state level that are former prosecutors. This means that if they are independently evaluating cases and making plea recommendations, they are often doing so from the mindset of a prosecutor and viewing the evidence and its relative strength from that mindset.
Another difficult problem, as the NY Times op ed mentions, is what about innocent defendants? The defendant in Serial maintains he went to trial because he was innocent. Plea bargaining conferences may do little to help the innocent defendant except to put more pressure on them to accept deals.
While I appreciate the idea proposed by Judge Rakoff discussed in the post and attached article, I concur with Professor Alkon that the proposal for judicially-managed plea-bargaining conferences would not likely help alleviate the problem of the trial penalty. Nonetheless, the judge’s proposal is admirable inasmuch as it aims to help defendants avoid a trial penalty.
I wonder whether a summary judgment trial process could accomplish the desired results without the problems inherent in Judge Rakoff’s judicially-directed proposal. The summary judgment trial is utilized in civil cases, and it helps parties better understand their bargaining positions while often removing bars to settlement. Could it work also in a criminal context?
Could a program work in which jurors hear very abbreviated evidence presentations from both prosecutors and defendants before delivering an advisory verdict on guilt or innocence? A judge overseeing the proceedings could provide an advisory sentencing recommendation in all cases, regardless of the advisory verdict.
Such a program could provide defendants the ability to weigh their likelihood of success at trial while gaining an understanding of what their expected sentence would be—including the trial penalty—should they choose trial. Moreover, as compared to Judge Rakoff’s proposal, this would lessen the coercive feel of the judicially-determined plea-bargain conference by allowing neutral jurors, rather than a judge, to evaluate the merits of the defendant’s case.
Admittedly, such a program would still not overcome many of the problems inherent in the plea-bargaining system that Professor Alkon points out—such as high mandatory minimum sentences and the problem of innocent defendants—but it would give defendants valuable information in helping them decide whether to accept plea offers.
Of course, implementation of such a program would have many tall hurdles to overcome before it would be feasible. Issues of cost and confidentiality are obvious, and the process might actually add to the burden on prosecutors, defense attorneys, and the courts.
Nonetheless, whether it be summary judgment trials, plea-bargaining conferences, or some other solution, criminal defendants need and deserve better and fairer information than they often currently have available to them when deciding whether to accept the plea offers.
Could a program work in which jurors hear very abbreviated evidence presentations from both prosecutors and defendants before delivering an advisory verdict on guilt or innocence? A judge overseeing the proceedings could provide an advisory sentencing recommendation in all cases, regardless of the advisory verdict.
Such a program could provide defendants the ability to weigh their likelihood of success at trial while gaining an understanding of what their expected sentence would be should they choose trial—including the “trial penalty.” Moreover, as compared to Judge Rakoff’s proposal, this would lessen the coercive feel of the judicially-determined plea-bargain conference by allowing neutral jurors, rather than a judge, to evaluate the merits of the defendant’s case.
Admittedly, such a program would still not overcome many of the problems inherent in the plea-bargaining system that Professor Alkon points out—such as high mandatory minimum sentences and the problem of innocent defendants—but it would give defendants valuable information in helping them decide whether to accept plea bargains.
Of course, implementation of such a program would have many tall hurdles to overcome before it would be feasible. Issues of cost and confidentiality are obvious, and the process might actually add to the burden on prosecutors, defense attorneys, and the courts.
Nonetheless, whether it be summary judgment trials, plea-bargaining conferences, or some other solution, criminal defendants need and deserve better and fairer information than they often currently have available to them when deciding whether to accept the plea offers.