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The Unconstitutionality of Plea Bargaining

Source: Harvard Law Review, Vol. 83, No. 6 (Apr., 1970), pp. 1387-1411
Published by: The Harvard Law Review Association
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THE UNCONSTITUTIONALITY OF
PLEA BARGAINING

American legal tradition teaches that a jury trial precedes


the imposition of criminal sanctions. Yet it is common knowl-
edge that most convictions, as many as ninety percent in some
jurisdictions, result from guilty pleas.' Because the contemporary
American criminal justice system suffers from a critical lack of re-
sources, it has come to rely on the continual sacrifice of the trial
rights of the individual.2 To dispose of the maximum number of
cases at minimum cost, prosecutors often attempt to induce a de-
fendant to plead guilty by offering him a bargain - a sentence or
charge reduction in exchange for a guilty plea.3
Plea bargaining has recently received the imprimatur of the
American Bar Association in its Standards Relating to Pleas of
Guilty.4 The ABA approved shorter sentences for defendants

THE PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION


OF JUSTICE, TASK FORCE REPORT: THE COURTS 9 (I967) [hereinafter cited as
COURTS]. In the federal system during the year ended June 30, I968, approximately
sixty-nine percent of all dispositions of persons charged with crimes were by pleas
of guilty or nolo contendere. ANNUAL REPORT OF THE DIRECTOR OF THE ADMINIS-
TRATIVE OFFICE OF THE UNITED STATES COURTS I968 at 26I [hereinafter cited as
ANNUAL REPORT]. (Each Annual Report will be found in that year's REPORTS OF
THE PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES). The
percentage of guilty pleas has declined recently, perhaps because more defendants
plead not guilty in order to preserve constitutional procedural defenses. See
ANNUAL REPORT OF THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED
STATES COURTS I967 at 260 (seventy-three percent); ANNUAL REPORT OF THE
DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS I966 at
220 (seventy-five percent).
2 The protections of trial include the fifth amendment privilege against self-
incrimination, see Malloy v. Hogan, 378 U.S. I (I964), more accurately described
in the context of plea bargaining as the right not to plead guilty, see United States
v. Jackson, 390 U.S. 570, 58I (i968), and the sixth amendment rights to trial by
jury, see Duncan v. Louisiana, 39I U.S. I45 (I968), to compulsory process
for obtaining favorable witnesses, see Washington v. Texas, 388 U.S. I4 (I967),
and to confrontation of one's accusers, see Pointer v. Texas, 380 U.S. 400 (I965).
3 The most complete descriptions of plea bargaining are found in D. NEWMAN,
CONVICTION: THE DETERMINATION OF GUILT OR INNOCENCE WITHOUT TRIAL (I966)
[hereinafter cited as NEWMAN] and Alschuler, The Prosecutor's Role in Plea Bar-
gaining, 36 U. CHI. L. REV. 50 (I968) [hereinafter cited as Alschuler]. A concise
description of plea bargaining is contained in COURTS 9-I3.
4 AMERICAN BAR ASSOCIATION PROJECT ON MINIMUM STANDARDS FOR CRIMINAL
JUSTICE, STANDARDS RELATING TO PLEAS OF GUILTY ? 3.I, at pp. io, 6o (tent. draft
I967), adopted as amended, 2 CRIM. L. REP. 2422 (I968) (reproducing approved
changes to the tentative draft). [hereinafter cited as STANDARDS RELATING TO PLEAS
OF GUILTY]. The text quoted in notes I9, 25, 32, 33 & 39 and at pp. I404-05 itfra
corresponds to the approved standards. The page numbers correspond to the
tentative draft.

1387

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I388 HARVARD LAW REVIEW [Vol. 83:I387

who plead guilty 5 and listed six justifications for the differen-
tial, two of which are express recognitions of the administrative
needs of the criminal justice system.6 There is no doubt that the
number of persons who can be processed through the present sys-
tem would decrease considerably if plea bargaining ceased. In the
federal courts, the time interval from indictment to sentence if
there is a jury trial is two and one-half times longer than the
interval if there is a guilty plea.7 Unfortunately, plea bargain-
ing increases general administrative efficiency at the cost of re-
duced attention to the individual case. Promptness and cer-
tainty are desirable goals only when the method of determining
guilt is both reliable and procedurally fair.
The criminal justice system has become a complex bureauc-
racy preoccupied with its "capacity to apprehend, try, convict
and dispose of a high proportion of criminal offenders whose
offenses become known" and guided by the need for speed and
finality.8 Presently, a set of informal decisions by police and
prosecutors separate the apparently innocent from the presum-
ably guilty.9 Because of administrative pressure, little subsequent
attention can be given to these initial determinations, and they are
most often confirmed quickly by a guilty plea or a dismissal of
charges.'0 The scrutiny of the criminal trial process is lost. In-

For discussion which disapproves this differential sentencing, see Comment,


The Influence of the Defendant's Plea on Judicial Determination of Sentence, 66
YALE L.J. 204 (1956).
6 STANDARDS RELATING TO PLEAS OF GUILTY ? I.8 at pp. 8-9, 36-37:
(i) that the defendant by his plea has aided in ensuring the prompt and
certain application of correctional measures to him;
(ii) that the defendant has acknowledged his guilt and shown a willingness
to assume responsibility for his conduct;
(iii) that the concessions will make possible alternative correctional measures
which are better adapted to achieving rehabilitative, protective, deterrent or
other purposes of correctional treatment, or will prevent undue harm to the
defendant from the form of conviction;
(iv) that the defendant has made public trial unnecessary when there are
good reasons for not having the case dealt with in a public trial;
(v) that the defendant has given or offered cooperation when such coopera-
tion has resulted or may result in the successful prosecution of other offenders
engaged in equally serious or more serious criminal conduct;
(vi) that the defendant by his plea has aided in avoiding delay (including
delay due to crowded dockets) in the disposition of other cases and thereby has
increased the probability of prompt and certain application of correctional
measures to other offenders.
7 ANNUAL REPORT I968 at 269.
8 Packer, Two Models of the Criminal Process, II3 U. PA. L. REV. I, IO (I964)
9 See generally W. LAFAVE, ARREST: THE DECISION To TAKE A SUSPECT INTO
CUSTODY (I965).
10 Dismissal of charges accounted for 4,98I out of the 3I,843 dispositions
criminal cases in federal courts during fiscal year i968. ANNUAL REPORT i968 a

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I970] PLEA BARGAINING I389

deed, the primary purpose of plea bargaining is to assure that the


jury trial system established by the Constitution is seldom uti-
lized.
This Note will describe briefly the institution of plea bargain-
ing, analyze reforms recently proposed by the ABA, evaluate the
constitutionality of the system's curtailment of individual rights
to promote efficiency in the administration of justice, and discuss
the problem of enforcing a judicial determination that plea bar-
gaining is unconstitutional.

I. PRESENT PRACTICE

Plea bargaining is a process of negotiation in which the


prosecutor offers the defendant certain concessions in exchange
for a guilty plea. A prosecutor has two main reasons for choosing
to bargain." First, since he is under extreme administrative pres-
sure from an overwhelming caseload, even a conscientious prose-
cutor often must bargain pleas to save time.12 Second, his
chance of convicting a defendant before a jury is often not high.13
Gaps in the state's proof, a shortage of credible witnesses, or a
respectable defendant whom the jury will hesitate to convict can
make adjudication a perilous course. As the probability of con-
viction at trial decreases, a prosecutor becomes increasingly re-
ceptive to conviction of the accused through a guilty plea. The
bargained plea secures the state's "half a loaf." '"
Concessions to defendants vary, largely depending on the
sentence structure and charging practice of the jurisdiction.15 A
defendant may seek a reduction of the charge,16 especially in

'l The prosecutor sometimes seeks to nullify the penalty for a given act when
the defendant could be severely harmed by such a penalty. See Alschuler 53.
Since this action does not require the defendant's compliance, it is not properly
deemed a motive for plea bargaining.
12 See Alschuler 52-58; cf. NEWMAN 77, 95.
'" Alschuler has a comprehensive discussion of the various results produced by
uncertainty about the outcome of trial. Alschuler 58-85.
14 See Alushuler 59-60; Scott v. United States, 419 F.2d 264, 276 (i969). See also
Specter, Book Review 76 YALE L.J. 604, 6o6-o7 (I967) (bargained plea often best
reflects degree of detendant's culpability).
15 See NEWMAN 78-go; Ohlin & Remington, Sentencing Structure: Its Effect
Upon Systems for the Administration of Criminal Justice, 23 LAW & CONTEMP.
PROB. 495 (I958). The prosecutor may have unreasonably inflated the charge
against the defendant or multiplied the number of charges based on one
criminal occurrence. "Overcharging" in this manner gives the prosecutor great
leverage in bargaining with the defendant to induce him to plead guilty. See
Alschuler 85-IO5.
'" See NEWMAN 78-go. The most important charge reduction is of a felony to
a misdemeanor. Such a reduction often substantially decreases the period of in-
carccration. Defendants are also eager to avoid felony convictions because they

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I390 HARVARD LAW REVIEW [Vol. 83:I387

jurisdictions that have lengthy mandatory minimum sentences.


He may bargain to avoid the label of an offense commonly thought
particularly distasteful, such as a sex crime. If indicted on more
than one count, he may try to have part of the indictment dis-
missed. In jurisdictions where the judge has broad sentencing
discretion, the defendant may seek a favorable sentencing recom-
mendation from the prosecutor; many judges follow such recom-
mendations routinely."7 The broad discretion over charging and
sentencing enjoyed by the prosecutor and judge respectively en-
ables the prosecutor to induce many defendants to bargain for a
more favorable disposition.
Defense attorneys also often face formidable caseloads. Be-
cause plea bargaining can be fairly quick and at the same time
obtain a benefit for the defendant, they are hardly averse to
seeking accommodation with the prosecutor. However, the value
of such accommodations to defense counsel occasionally may lead
them to enter pleas which are not in their defendants' best in-
terests.18

II. REFORM

In Standards Relating to Pleas of Guilty, the American Bar


Association has proposed a set of procedural safeguards to govern
the plea bargaining process. The prosecutor must engage in dis-
cussions only with the defendant's attorney. The judge must not
participate in plea discussions, but he may indicate whether he will
concur in the proposed disposition. The judge must advise the
defendant of the consequences of the plea and also determine that
a factual basis for it exists. Similarly situated defendants must be
afforded equal bargaining opportunities. The thrust of these
proposals is to establish a certain amount of judicial scrutiny
over plea negotiations and to assure that the defendant makes an
informed, voluntary decision when he pleads guilty in response
to a plea bargain.
By requiring the prosecutor to consult only with defense
counsel,19 the ABA has adopted a common and generally favored
involve collateral consequences, such as susceptibility to habitual offender statutes
or decreased availability of flexible correctional programs.
17 See id. at 89, 92-94.
18 The ABA seems to be somewhat concerned with this problem. See STANDARDS
RELATING TO PLEAS oF GUILTY ? 3.2 at pp. i i, 69-70.
Id. ? i.3 at pp. 6-7, 21; ? 3.I at pp. iIo-I, 6o:
A defendant should not be called upon to plead until he has had an op-
portunity to retain counsel or, if he is eligible for appointment of counsel,
until counsel has been appointed or waived.

[The prosecutor] should engage in plea discussions or reach a plea agree-


ment with the defendant only through defense counsel, except when the

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I970] PLEA BARGAINING I391

proposal.20 The presence of a lawyer during plea bargaining adds


an objective third party who should reduce pressure on the de-
fendant by evaluating the bargain and the defendant's chance
for acquittal. A lawyer with adequate knowledge and experience
can prevent innocent defendants from pleading guilty and can
enable defendants to negotiate on a more equal basis with the
prosecutor. Indeed, because of the power the prosecutor holds
over the defendant, it is arguable that no plea negotiated in the
absence of counsel is voluntary: the fear of conviction and the
desire for a shorter jail term may have a severe debilitating effect
on a defendant's ability to resist pressure to plead guilty.21 Even
the presence of counsel, however, cannot alleviate the defendant's
dilemma. He still risks a longer sentence if he goes to trial.22 In
fact, the presence of a lawyer may be a disadvantage if the de-
fendant is actually placed under pressure, for courts are reluctant
to find the pleas of counseled defendants involuntary.23

defendant is not eligible for or does not desire appointment of counsel and
has not retained counsel.
20 See, e.g., Note, Guilty Plea Bargaining: Compromises by Prosecutors to
Secure Guilty Pleas, II2 U. PA. L. REV. 865, 887-89 (I964). Two courts have
held in rather cursory opinions that bargains made in the absence of counsel in-
validate the guilty plea. Shupe v. Sigler, 230 F. Supp. 6oi, 6o6 (D. Neb. i964)
Anderson v. North Carolina, 22i F. Supp. 930, 934-35 (W.D.N.C. i963).
21 Because counsel is so important, the judge should fully inform the defendant
of his need for a lawyer and should be reluctant to accept waiver when the prosecu-
tor presents a bargain made by an uncounseled defendant. See STANDARDS RELATING
TO PLEAS OF GUILTY 66; Note, supra note 20, at 889. It is important to recog-
nize that a guilty plea is not just a confession. See Boykin v. Alabama, 395 U.S.
238, 242 (i969). It combines the pleading, adjudicatory and sentencing stages of
the criminal process, all deemed "critical stages" at which the defendant has a
constitutional right to counsel. See Mempa v. Rhay, 389 U.S. 128 (i967) (sen-
tencing) ; Gideon v. Wainright, 372 U.S. 335 (I963) (trial); Hamilton v. Ala-
bama, 368 U.S. 52 (i96i) (arraignment). To guarantee a defendant counsel when
he pleads, but not when he makes the bargain that impels the plea and establishes
his conviction and sentence, is to deny him legal assistance when he most needs it.
22 The plea "taken to avoid the risk of being convicted of a more serious crime
. . . is truly no more voluntary than is the choice of the rock to avoid the whirl-
pool." Kuh, Book Review, 82 HARV. L. REV. 497, 500 (I968). But see Rogers v.
Wainright, 394 F.2d 492 (5th Cir. i968) (plea bargaining is not generally coercive);
Cortez v. United States, 337 F.2d 699 (gth Cir. i964), cert. denied, 38I U.S. 953
(i965) (fear of pregnant wife's conviction not considered coercive). In Machibroda
v. United States, 368 U.S. 487 (i962), the Court suggested that some bargains
could be sufficiently coercive in themselves that they would render pleas involuntary.
See also Bailey v. MacDougall, 392 F.2d i55, I58-59 (6th Cir.), cert. denied, 393
U.S. 847 (I968).
23 See Parrish v. Beto, 414 F.2d 770 (5th Cir. i969) (plea of youthful, un-
educated defendant who was held on death row for six months, threatened by the
prosecutor with being "burned" in the electric chair, and pressured by mother and
lawyer to accept ninety-nine year sentence, held voluntary) ; Cooper v. Holman,
356 F.2d 82, 85-86 (5th Cir.) cert. denied, 385 U.S. 855 (i966) (defendant's choice

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I392 HARVARD LAW REVIEW [Vol. 83:I387

Other ABA proposals also attempt to assure the voluntariness


of the defendant's plea by eliminating situations in which the
defendant encounters pressure other than that produced by differ-
ential sentencing or other differential treatment inherent in bar-
gained pleas. One ABA suggestion is to prevent the trial judge
from participating in the bargaining process.24 It is a constitu-
tional requirement that a judge determine the voluntariness of a
defendant's plea,25 and most observers agree that a judge who
participates in the negotiations leading to the plea ca-nnot be
expected to make a neutral judgment about its voluntariness.26
Even if the judge can in fact act neutrally, the defendant may be
intimidated by the judge's involvement in negotiations because of
his control over the trial and sentencing.27 These difficulties can
be mitigated simply by providing that a different judge preside
over the voluntariness hearing, or the trial, if a bargain is not con-
cluded.8 But such a division of judicial labor may prove expen-
sive, and defendants (and their attorneys) may still be intimidated
by the presence of any judge. Furthermore, it can be argued that
to preserve respect for the legal process, a judge must appear to be
a "symbol of even-handed justice" who is not involved in bar-

to enter a plea of guilty on advice of counsel that he would thereby avoid death
sentence held voluntary); Latten v. Cox, 355 F.2d 397, 400 (ioth Cir. I966)
("Merely because appellant . . . chose to rely on his own attorney's advice and
plead guilty to reduced charges rather than trust his fate to a jury on additional
and more serious charges does not establish that the plea was involuntary.").
24 STANDARDS RELATING TO PLEAS OF GUILTY ? 3.3 at pp. II, 7I-72. Some courts
have issued ringing denunciations of judicial plea bargaining, e.g., United States ex
rel. Elksnis v. Gilligan, 256 F. Supp. 244, 254 (S.D.N.Y. i966), and most commenta-
tors have concurred, e.g., Note, Judicial Plea Bargaining, I9 STAN. L. REV. IO82
(i967); Comment, Official Inducements to Plead Guilty: Suggested Morals for a
Marketplace, 32 U. CHI. L. REV. i67 (I964).
25 Before accepting a waiver of fifth and sixth amendment rights, a judge
making this inquiry into voluntariness must inform the defendant of the nature of
the charge and the consequences of his plea. Boykin v. Alabama, 395 U.S. 238, 244
(i969). The ABA proposal to the same effect thus has become a constitutional
standard. STANDARDS RELATING TO PLEAS OF GUILTY ? 1.5 at pp. 7-8, 29:
The court should not accept a plea of guilty or nolo contendere without
first determining that the plea is voluntary. By inquiry of the prosecuting
attorney and defense counsel, the court should determine whether the ten-
dered plea is the result of prior plea discussions and a plea agreement, and,
if it is, what agreement has been reached. If the prosecuting attorney has
agreed to seek charge or sentence concessions which must be approved by the
court, the court must advise the defendant personally that the recommenda-
tions of the prosecuting attorney are not binding on the court. The court
should then address the defendant personally and determine whether any
other promises or any force or threats were used to obtain the plea.
26 See, e.g., STANDARDS RELATING TO PLEAS OF GUILTY 73; Note, supra note
20, at 892; Note, supra note 24, at IO89-90.
27 United States ex rel. Elksnis v. Gilligan, 256 F. Supp. 244, 254 (S.D.N.Y.
i966) (dictum).
28 This suggestion, of course, could not be implemented in one-judge c

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I970] PLEA BARGAINING 1393

tering.9 Nevertheless, bargaining conducted or presided over by


a judge who will not preside at the voluntariness hearing or trial
may be less subject to administrative pressures than unsupervised
bargaining between prosecutor and defendant, and may produce
sentences more suited to the individual's crime, his chance for
rehabilitation, and the protection of society from further harm.
In addition, the prosecutor is less able to use coercive tactics in
the presence of a judge.31
As an additional safeguard for voluntariness, the ABA has
proposed that before the entry of a bargained plea, the judge may,
upon request of the parties, indicate whether he will concur in
the proposed disposition.32 If the judge indicates he will concur,
a defendant who might have gone to trial because he was unsure
of receiving his bargain may now plead guilty. But any added
pressure on the defendant from such an indication by the judge
seems minimal, since most bargains are in fact adhered to any-
way. The main function of obtaining the judge's advice is to
make the defendant's plea a more knowledgeable one. Neverthe-
less, since judges even now reject unreasonable recommendations
by the prosecutor, the ABA proposal provides little additional
check on the discretion of the prosecutor in the bargaining
process.
The ABA proposal suggesting that the judge be required to
establish that there is a factual basis for the plea 33 reflects some
uneasiness about accuracy of the original police-prosecutor de-

29 United States ex rel. Elksnis v. Gilligan, 256 F. Supp 244, 254 (S.D.N.Y.
I966); see Note, supra note 24, at IO89.
30 Cf. Enker, Perspectives on Plea Bargaining, in COURTS at Io8.
31 Of course, any pressure allowed by a judge will probably be immune
later attack.
32 STANDARDS RELATING TO PLEAS OF GUILTY ? 3.3 at pp. I I, 7 I (partially
amended):
If a tentative plea agreement has been reached which contemplates entry
of a plea of guilty or nolo contendere in the expectation that other charges
before that court will be dismissed or that sentence concessions will be grant-
ed, upon request of the parties the trial judge may permit the disclosure to
him of the tentative agreement and the reasons therefor in advance of the
time for tender of the plea. He may then indicate to the prosecuting attor-
ney and defense counsel whether he will concur in the proposed disposition
if the information in the presentence report is consistent with the represen-
tations made to him. If the trial judge concurs but later decides that the final
disposition should not include the charge or sentence concessions contemplated
in the plea agreement, he shall so advise the defendant and then call upon the
defendant to either affirm or withdraw his plea of guilty or nolo contendere.
33 Id. ? i.6 at pp. 8, 30:
Notwithstanding the acceptance of a plea of guilty, the court should not
enter a judgment upon such plea without making such inquiry as may satisfy
it that there is a factual basis for the plea.
This proposal is virtually identical to Federal Rule of Criminal Procedure II,
which prescribes that "[t]he court shall not enter a judgment upon a plea of guilty
unless it is satisfied that there is a factual basis for the plea."

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I394 HARVARD LAW REVIEW [Vol. 83:I387

cision to charge and the confirmation of that decision by the guilty


plea. One extensive study of plea bargaining found that un-
counseled defendants who are not guilty may choose to obtain
concessions by pleading guilty.34 Another study found that
especially in cases where the prosecutor has reduced the original
charge substantially, the plea may not be accurate.35
Judicial inquiry may prevent blatant errors by the uncounseled
defendant. But in the usual case of an inaccurate plea, neither
the defendant nor the prosecutor is likely to have an interest in
upsetting the bargain. Through the bargain, the prosecutor ob-
tains a conviction and avoids the expense of trial, the defendant
receives a sentence or charge concession, and defense counsel
achieves a beneficial resolution for his client at minimum ex-
pense. A court can provide little protection against inaccurate
pleas by requiring the prosecutor to present a prima facie case,
for he will almost surely be able to offer a substantial amount
of proof. In the close case, it is the defendant's rebuttal which
usually raises doubts about the sufficiency of the evidence. But
the defendant likewise seldom feels an incentive to contest even
an inaccurate plea. The judge is forced to assume an inquisitorial
role because only he has sufficient disinterest in the bargain to
examine its validity.36
The judge, however, generally lacks the resources and knowl-
edge to make an effective attack on a plea which a counseled de-
fendant wishes to sustain. Overcoming a prosecutorial case with-
out the defendant's aid would require investigatory resources to
develop the defendant's side of the case. The inevitable duplica-
tion of defense counsel's efforts, while resisted by a defendant
trying to obtain the benefits of his bargain, seems rather
absurd. But the more limited the judicial investigation and the
greater the dependence of an accuracy hearing on courtroom ex-
amination of the defendant, the less the results will differ from
the decisions made by defense counsel. Without a much greater
commitment of judicial resources to investigation, a hearing is not
likely to uncover inaccuracy in the counseled defendant's plea.
Finally, it is clear that not all defendants now get equal
opportunities to bargain. The naive defendant often gets no bar-
gain at all.7 Most prosecutor's offices do not have guidelines on

34 NEWMAN 200-05, 225-26.


:15 Alschuler 59-67.
3' The Supreme Court apparently recognized this in Boykin v. Alabama, 395
US. 238, 243-44 (I969), when it bypassed counsel to require the judge to "can-
vass" the entry of the guilty plea with the defendant.
'37 See NEWMAN 42-43. On the other hand, some judges routinely seek to
have charges reduced because of the youth and inexperience of the offender. Id.
at I I5-1 7.

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I970] PLEA BARGAINING I395

plea bargaining, and practices vary greatly.38 Promulgation of


rules governing bargaining is desirable, and the ABA's principle of
equal treatment39 would eliminate flagrant discrepancies. But
it is unlikely to bring major changes in the bargains received.
Few defendants are similarly situated in all important respects.
Since the prosecutor adhering to the ABA rules can legitimately
take into account adjudicative, sentencing and administrative
factors, and since he has apparently unlimited discretion in
weighing them, the ABA proposal seems to suggest no more than
a good faith effort to treat the defendant fairly. Hopefully, this
effort is already being made.
The ABA's proposed reforms attempt to ensure that de-
fendants make voluntary and accurate pleas by prescribing a
"due process" of plea bargaining. But the discretion afforded the
prosecutor, defendant and defense counsel in reaching a decision
remains substantially unimpaired. The proposals may curb the
most severe abuses, but they do not greatly influence the essen-
tial components of the plea bargaining process.

III. CONSTITUTIONALITY

The Constitution establishes an accusatorial system of public


trials to determine the guilt of persons charged with crimes.
The fifth amendment privilege against self-incrimination and the
sixth amendment rights to confront one's accusers, to have com-
pulsory process for obtaining favorable witnesses, and to stand
trial by jury are available to anyone accused of crime. But by
inducing waiver of the constitutional trial rights, plea bargaining
systematically undermines these protections, substituting adminis-
trative determination of guilt for the decisions of judge and jury.
Formal, public condemnation or vindication of an accused
benefits society generally by enhancing the legitimacy of the,
criminal justice system. Trials increase the participation of
members of the community as jurors and make the guilt deter-
mination process more visible. Trials are also valuable for the
public and the accused as "lesson[s] in legal procedure, dignity,
fairness and justice." 40
In the contest between the state and the defendant at trial,
the exercise of fifth and sixth amendment rights prevents the state

38 See Note, supra note 20, at goo.


31 STANDARDS RELATING TO PLEAS OF GUILTY ? 3.I(c) at p. 6o: "Similarly situated
defendants should be afforded equal plea agreement opportunities."
40 Griffiths, Ideology in Criminal Process or a Third Model of the Criminal
Process, 79 YALE L.J. 359, 398 (Ig70). See generally Hart, The Aims of the
Criminal Law, 23 LAW & CONTEMP. PROB. 401 (I958).

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I396 HARVARD LAW REVIEW [Vol. 83:I387

from overwhelming the defendant, ensures fairness in adjudica-


tion 41 and maintains the defendant's freedom of will.42 An ac-
cused is never expected to submit to the state's determination of
his guilt; rather, he is expected to advocate his own cause vigor-
ously in order to guarantee adequate development of his side of the
story.43 A plea induced by a bargain, though perhaps voluntary
in that no blatant coercion has been employed and in that the de-
fendant has full knowledge and understanding of his action, still
subverts the defendant's ability and will to defend himself, for the
state has structured his alternatives and encouraged him to plead
guilty as the lesser of two evils.
The defendant's constitutional trial rights not only equalize
the contest between him and the state, but also provide a general
check on the exercise of governmental power. The state's criminal
laws are maintained in rough conformity with community moral-
ity by requiring a community judgment of the accused by a jury.
The interposition of the jury between the state and the accused
also helps prevent arbitrary prosecution.44 Further, if the state
has misused its power in the process of investigating or prosecu-
ting the defendant, it is often denied a conviction because evidence
obtained illegally is excluded from the trial.45 But since these
exclusionary rules which control law enforcement agencies are
effective only at trial, plea bargaining undermines their impact.46

41 See, e.g., Duncan v. Louisiana, 39I U.S. I45, I54, I57-58 (I968):
A right to jury trial is granted to criminal defendants in order to prevent
oppression by the Government....

. . .[J]ury trial for serious offenses is a fundamental right, essential


for preventing miscarriages of justice and for assuring that fair trials are
provided for all defendants. . . . Even where defendants are satisfied with
[waiver], the right to a jury trial very likely serves its intended purpose
of making judicial or prosecutorial unfairness less likely.
42 See Malloy v. Hogan, 378 U.S. i, 8 (I964):
Governments, state and federal, are thus constitutionally compelled to
establish guilt by evidence independently and freely secured, and may not by
coercion prove a charge against an accused out of his own mouth....
[T]he right of a person to remain silent unless he chooses to speak in the
unfettered exercise of his own will, and to suffer no penalty . . . for such
silence [is protected by the fifth and fourteenth amendments].
43 See Washington v. Texas, 388 U.S. I4, I9 (I967):
The right to offer the testimony of witnesses, and to compel their at-
tendance, if necessary, is in plain terms the right to present a defense, the
right to present the defendant's version of the facts . . . to the jury so it
may decide where the truth lies. Just as the accused has the right to con-
front the prosecution's witnesses for the purpose of challenging their testi-
mony, he has the right to present his own witnesses to establish a defense.
44 See note 41 supra.
45 See, e.g., Miranda v. Arizona, 384 U.S. 436 (I966) (coerced confession);
Mapp v. Ohio, 367 U.S. 643 (I96I) (illegal search).
46 But cf. United States ex rel. Richardson v. McMann, 408 F.2d 48, cert.
granted, 38 U.S.L.W. 3127 (Oct. I4, I969) (evidentiary hearing ordered to deter-

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I970] PLEA BARGAINING I397
The functions of judge and jury thus cannot be eliminated with-
out risking serious, and also invisible, abuses by police and
prosecutors.
The adversary system is also crucial in determining guilt.
Although the action of the police and prosecutor in proceeding
against a particular defendant generally reflects their decision
that he is in fact guilty of a crime, their law enforcement roles
may occasionally distort their judgment.47 In any case, the
reasons for their decisions are substantially obscured from the
public view. The adversary system forces both the state and the
accused to present their evidence and argument in a neutral
forum of judge and jury. Furthermore, some information used
by the administrative decisionmakers may be unavailable at trial.
The defendant can always exercise his fifth amendment right to
withhold testimony; exclusionary rules may nullify other reliable
evidence. Moreover, the jury may express its judgment of com-
munity values by acquitting an individual who has in fact vio-
lated the law.48 Perhaps administrative determinations are more
reliable than those made by judges and juries. Even if this is so,
however, the constitutionally prescribed trial process permits
occasional errors in favor of guilty defendants in order to serve
other important values.
Sentencing decisions in the trial system are supposed to be
based on proper correctional considerations such as the gravity of
the offense and the personality of the defendant. Plea bargaining,
however, produces differential sentencing based on defendants'
decisions whether or not to exercise their trial rights. The differen-
tial is justified primarily by the administrative needs of the sys-
tem. The primary goals of the criminal justice system, rehabili-
tation, incapacitation, deterrence or retribution, are sacrificed
to administrative efficiency.
Many of the values of a trial thus are lost upon entry of any
guilty plea. But at least in the absence of a bargain, a guilty plea
may be a fair reflection of the defendant's own preferences un-
altered by the state's ability to influence the results of his various
choices. A guilty plea induced by a bargain occurs because the
state has structured the outcome so that the defendants will
choose not to go to trial. Plea bargaining is inherently destruc-

mine voluntariness of guilty plea allegedly induced by presence of coerced con-


fession and inadequate assistance of counsel) ; note i supra.
4 Alschuler indicates that prosecutorial determination to press charges varies
with the prosecutor's concept of his role. Some will indict only those persons
they feel certain are guilty; others those persons they think the available evidence
will convict. Alschuler 63.
48 It is also possible that a jury would convict someone innocent of crime be-
cause of conduct which offended community values.

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I398 HARVARD LAW REVIEW [Vol. 83:I387

tive of the values of the trial process, for it is designed to prevent


trials. The practice forfeits the benefits of formal, public adjudi-
cation; it eliminates the protections for individuals provided by
the adversary system and substitutes administrative for judicial
determinations of guilt; it removes the check on law enforcement
authorities afforded by exclusionary rules; and it distorts sen-
tencing decisions by introducing noncorrectional criteria. This
nullification of constitutional values should not continue without
careful examination.
The individual's assertion of his constitutional rights may be
deterred if the state makes their exercise costly. When an indi-
vidual forgoes the exercise of a constitutional right in order to
obtain or retain a benefit from the state, established doctrine re-
quires that the courts examine such an exchange to determine if it
places an undue burden on the exercise of the right and hence is
unconstitutional.49 In bargaining pleas, the state conditions the
granting of sentence or charge concessions on defendants' waivers
of their fifth and sixth amendment rights. Unconstitutional con-
ditions that induce waiver should be distinguished from uncon-
stitutional pressures that render a plea involuntary. An in-
quiry into the voluntariness of a defendant's decision not to exer-
cise a constitutional right focuses on his mental state, i.e., his
freedom of will and his knowledge and understanding of the al-
ternatives before him. A defendant's decision is involuntary if
it differs from the choice a rational, unpressured individual with
his preferences would make in the same situation. An inquiry
into the burdens a state places on the exercise of a constitutional
right, on the other hand, focuses simply on the presence and im-
portance of the right and the justifications for penalizing its
exercise.
The constitutionality of plea bargaining depends in large part
on the burden the state may place on the defendant's exercise of
his fifth amendment privilege against self-incrimination, which
in the context of plea bargaining takes the form of a right not
to plead guilty.50 In recent cases where the government sought
to elicit information from its employee or licensee in order to de-
termine his qualifications, the Supreme Court refused to allow
any burden on the right. Garrity v. New Jersey 51 held that in-
criminating evidence secured under the threat of discharge was
not admissible in a later criminal trial. A companion case, Spe-

49 See Comment, Another Look at Unconstitutional Conditions, II7 U. PA. L.


REV. I44 (I968); Note, Unconstitutional Conditions, 73 HARV. L. REV. I595 (I960).
50See United States v. Jackson, 390 U.S. 570, 58I (I968).
5'385 U.S. 493 (I967).

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I970] PLEA BARGAINING I399

vack v. Klein,52 held that an attorney could not be disbarred for


failure to produce records and testify in a judicial inquiry if he
had not been offered immunity from later criminal prosecution.
Later cases 53 extended the Spevack privilege to state employees.
The Court in Garrity, Spevack, and their progeny did not seek
merely to alleviate coercion of the accused that might impair the
voluntariness of his acts.54 The question for the Court was,
rather, may the state structure an individual's choice in such
a way that he will voluntarily forgo the fifth amendment privilege
in order to retain a different state-granted benefit? In these cases
the Court answered, "No." The fifth amendment right is so im-
portant that its exercise may not be conditioned by the exaction
of this price by the state. Whipsaw tactics by the government
were forbidden no doubt because the Court felt that the fifth
amendment privilege is the keystone of the criminal accusatorial
system.55
The general principle enunciated in the Garrity line of cases
is quite broad: the government may not condition any benefit to
an individual on his furnishing of information that might some-
how incriminate him. Much governmental activity proceeds on
the basis of information that is obtained when the receiving official
has no particular thought of initiating a criminal prosecution:
for example, the data requested on job applications, licensing
forms, or health insurance applications. To extend Garrity to
these situations would mean that a person may withhold perti-
nent information, yet still demand the benefit from the govern-
ment; or that he may be compelled to furnish the information,
but only if he is granted an immunity from any later prosecution
based on it. The interest of orderly government in noncriminal
matters suggests that inquiry should be allowed, at least into

5385 U.S. 5II (I967).


5 Gardner v. Broderick, 392 U.S. 273 (I968); Uniformed Sanitation Men
Ass'n v. Commissioner of Sanitation, 392 U.S. 280 (i968).
5 Mr. Justice Harlan criticized the majority opinion in Garrity for shifting
between voluntariness and unconstitutional condition rationales. Garrity v. New
Jersey, 385 U.S. 493, 501 (I967) (dissenting opinion). But the later cases of
Gardner v. Broderick, 392 U.S. 273 (i968), and Uniformed Sanitation Men Ass'n
v. Commissioner of Sanitation, 392 U.S. 280 (i968), which relied on Garrity, indi-
cated that the crucial issue was penalizing the assertion of constitutional rights.
Thus the Court in Gardner focused on the fact that the petitioner was "dismissed
[from] office for failure to relinquish the protections of the privilege against
self-incrimination." 392 U.S. at 278.
55 "Increasingly close scrutiny of infringements on fifth amendment rights re-
flects recognition that the American system of criminal prosecution is accusatorial,
not inquisitorial, and that the Fifth Amendment privilege is its essential mainstay."
Malloy v. Hogan, 378 U.S. 1, 7 (I964).

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I400 HARVARD LAW REVIEW [Vol. 83:I387

many conventional activities. Yet an all-pervasive government


might need to ask so many questions that, under a broad interpre-
tation of Garrity, it would immunize a great many individuals
from prosecution.56
When the inquiries initiated by the government have a prose-
cutorial aim, however, the importance of the privilege to the
maintenance of the accusatorial system of criminal justice is much
more apparent. The broad scope of the Garrity principle need
not be accepted to see its particular relevance to plea bargaining.
In plea bargaining, the government focuses its inquiry on a par-
ticular individual and seeks to obtain an immediate conviction.
This sharp focus and the immediacy of criminal sanctions make
the need for unfettered exercise of the fifth amendment privilege
even greater than in Garrity, where the likelihood of prosecution
was not apparent at the outset. Garrity might also be limited to
cases in which the burden on the exercise of individual rights is
severe. But again the burden in plea bargaining, confinement for
an extra period of years, is at least as severe as the price paid in
Garrity itself, loss of a job.
Thus, even under a narrow reading of the Garrity principle,
plea bargaining should be held unconstitutional because it places
the accused in the dilemma of having to forfeit either his privilege
against self-incrimination (by acknowledging his guilt through a
plea of guilty) or his chance for a shorter sentence or reduced
charge. Only if the state is willing to forgo the criminal prosecu-
tion can it require the individual to speak or suffer a penalty. But
since the very purpose of plea bargaining is to prosecute and con-
vict the defendant by pressuring him to plead guilty, the practice
will always violate the fifth amendment. The additional penalty
imposed by plea bargaining on the exercise of sixth amendment
rights makes the case against the practice even stronger.
The conclusion that plea bargaining is unconstitutional de-
pends on the determination that it exacts a price for the exercise
of fifth and sixth amendment rights. Proponents of the practice
might stress that sentencing and charge reductions are matters of
56In Kaufman v. Secretary of the Air Force, 415 F.2d 99I (D.C. Cir. I969)
the court, relying on the "required records" doctrine, see Shapiro v. United States,
335 U.S. I (I948); cf. Spevack v. Klein, 385 U.S. 5II, 5I6-I7, 520 (i967), held
that an Air Force regulation requiring officers to report all contacts with enemy
agents was not violative of the fifth amendment even though the officer incidentally
had to reveal that he was traveling abroad illegally. The court seemed to con-
tradict its holding by saying that the government could have been forced to choose
between obtaining the required reports and using them in evidence in a prosecu-
tion. The court suggested that if the officer had given the reports, but asserted his
fifth amendment privilege, he might have been immune from prosecution, but
that there was no "blanket privilege to withhold [the report] in the first place."
Id. at 999.

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I970] PLEA BARGAINING I40I

judicial and executive grace, and that a defendant has no right


to such concessions. But the legislature presumably did not grant
prosecutors and judges this broad discretion so that they could
continually induce defendants to waive their constitutional rights.
If plea bargaining was not used to structure the alternatives pre-
sented to defendants, they would be more likely to go to trial
rather than plead guilty, and there would be more jury trials.
When a defendant knows that the sentence he would receive at
trial is twice that he would receive on a guilty plea, his exercise
of constitutional trial rights is obviously chilled.
In the recent case of Scott v. United States,57 Judge Bazelon
attempted to identify a permissible set of plea bargains. He
reasoned that no deterrent effect would be exerted on the exer-
cise of constitutional rights when the expected sentence of a de-
fendant after a guilty plea (i.e., the sentence he would likely
receive if he pleaded guilty and the plea bargain was honored)
was equal to his expected sentence if he went to trial (i.e., the
probability of his conviction multiplied by the sentence he would
likely receive if he was convicted of the crime at trial). Bargains
with the requisite equality would not condition the receipt of a
benefit on a defendant's waiver of constitutional trial rights be-
cause there would be no objective benefit. Hence, there would
be no chilling effect on the exercise of those rights.
Judge Bazelon's theory is inadequate for several reasons.
First, it requires the prosecutor to estimate the probable sentence
for the defendant if he pleaded guilty, the probable sentence for
the same defendant if convicted at trial, and the likelihood of con-
viction, and then to offer a bargain for which the expected sen-
tences would be equal. But the prosecutor does not have sufficient
information to make those predictions accurately. It is especially
difficult to estimate the outcome of a defendant's trial, for it
will vary from defendant to defendant, depending on such impon-
derables as jury reactions.
Second, assuming that the prosecutor's predictions are per-
fect, the alternatives are probably not equal in the eyes of the
defendant. If he feels more injured by the first years of imprison-
ment than by the last, or if he is relatively indifferent to the
sentence and only wishes to avoid conviction altogether, he will
choose trial. If each year of imprisonment represents a similar
amount of injury to a defendant, but he wishes to avoid risk,
or if the years represent successively greater injuries, he will
choose to plead guilty. Judge Bazelon has mistaken numerical
equality of expected sentence for equivalence in the mind of the
defendant. To set up alternatives which are equal in the mind of

57 419 F.2d 264 (D.C. Cir. I969).

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I402 HARVARD LAW REVIEW [Vol. 83:I387

the defendant, the state would have to consider other factors,


such as his risk and time preferences, in addition to the expected
sentence.
Third, the theory ignores the systematic restructuring of
criminal penalties produced by prosecutors who bargain pleas in
order to induce defendants who would otherwise go to trial
to plead guilty. If all defendants were actually indifferent be-
tween the proposed sentence or charge concession and trial, on
a random basis only half of them would accept the bargains. But
when the alternatives are so structured by the state that the de-
fendant is actually indifferent, the exercise of his right is chilled
to the point of indifference, and the state effectively prevents jury
trial in half of these cases. In the usual case where the defend-
ant's alternatives have been so altered that he actually prefers
to plead guilty, he is even more obviously deterred from exercising
his constitutional rights. By bargaining sentence and charge re-
ductions for guilty pleas, the state, not the defendant, is thus able
to determine whether there will be a trial.
The Supreme Court last Term opened an additional avenue for
constitutional attack on the practice of plea bargaining, one that
focuses on the differential sentencing 58 which lies at the heart of
the practice. North Carolina v. Pearce 59 held it a violation of due
process for a state to punish defendants who appealed their con-
victions by following "an announced practice of imposing a heavier
sentence upon every reconvicted defendant." A defendant's sen-
tence could be increased on retrial only "in the light of events
subsequent to the first trial that may have thrown new light on the
defendant's 'life, health, habits, conduct, and mental and moral
propensities.' "' 60 Thus, if a defendant who pleaded guilty suc-
cessfully attacked his conviction and then went to trial, his new
sentence on reconviction could not exceed his original bargained
sentence solely because he had exercised his right to trial. In-
terpreted broadly, Pearce supports the proposition that differential
sentencing based on noncorrectional factors may not be employed
to deter the exercise of important rights in the criminal process.
The practice of plea bargaining punishes defendants who go
to trial in order to induce them to waive their trial rights. The
Pearce Court forbade the state from attempting to discourage

58 See Comment, supra note 5.


59395 U.S. 711, 723 (i969).
" Id. at 723, quoting Williams v. New York, 337 U.S. 241, 245 (i949).
See also Thomas v. United States, 368 F.2d 941 (5th Cir. i966) (overturned
harsher sentence given because defendant had asserted innocence after conviction);
United States v. Wiley, 278 F.2d 500 (7th Cir. ig60) (overturned harsher sentence
given becausc defendant had gone to trial).

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I970] PLEA BARGAINING I403

exercise of the statutory right to appeal by increasing sentences


on retrial.6' Since plea bargaining punishes exercise of the im-
portant constitutional rights to jury trial, to confront one's ac-
cusers, to have compulsory process, and to be free from compul-
sory self-incrimination, differential sentencing based on guilty
pleas is at least as offensive to due process as differential sen-
tencing based on nonexercise of the right to appeal.
The Court in both Garrity and Pearce accorded little weight to
state interests. Yet the prevalence of plea bargaining suggests
that it is a significant economy in the criminal justice system. A
court examining the constitutionality of plea bargaining might be
reluctant to apply the principles of Garrity and Pearce and would
choose instead to give further consideration to the state's interest
in the practice.
One established method of determining a state's interest in
practices which threaten constitutional rights is to determine if the
state's goals could be achieved by "less drastic means" that do
not constrain the individual in the exercise of those rights.62 For
example, in United States v. Jackson,63 the trial jury's exclusive
power to impose the death sentence under the Federal Kidnapping
Act was invalidated as an unnecessary burden on the defendant's
fifth amendment right not to plead guilty and his sixth amendment
right to a jury trial. Since defendants could receive a death
sentence only if the jury decreed it, they were encouraged to plead
guilty or otherwise waive jury trial. The Court recognized that
limiting the use of the death penalty to cases in which the jury
recommended it was a legitimate state purpose. However, this aim
could have been achieved by alternative methods, such as a sen-
tencing jury, which would not unduly burden constitutional rights.
There was therefore no need to countenance differences between
the sentence a defendant could receive if he pleaded guilty or was
tried by a judge.
The principle of less drastic means thus aids a further analysis
of the constitutionality of plea bargaining, for most of the state
goals served by the practice can be attained by less drastic means.
The ABA has suggested that lighter sentences for defendants who
plead guilty may be justified because their pleas indicate repen-
tance. But when a defendant has bargained over his plea and re-
ceived a sentence or charge concession as quid pro quo, it seems

61 The rationale of Pearce would also seem to require prohibiting the state
from increasing the charges on retrial. See pp. I408-09 infra.
62 See, e.g., Shelton v. Tucker, 364 U.S. 479, 488 (I960); Note, Less Drastic
Means and the First Amendment, 78 YALE L.J. 464 (I969).
63390 U.S. 570 (I968), noted in The Supreme Court, 1967 Term, 82 HARV. L.
REV. 63, I56-62 (I968).

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I404 HARVARD LAW REVIEW [Vol. 83: I387

most unlikely that he is "assum[ing] responsibility for his con-


duct." 64 If, on the facts of an individual case, the judge believes
the defendant is repentant, because of his plea or for other reasons,
he can adjust the sentence accordingly. But this factor is no
justification for conditioning sentence or charge concessions on
guilty pleas.
Another suggestion of the ABA is that concessions be granted
to "make possible alternative correctional measures." 65 This
goal can be achieved by the legislature, if it so desires, by lower-
ing or eliminating harsh mandatory minimum sentences and other
oppressive penalties and by giving judges any additional discre-
tion necessary to accomodate sentencing decisions to particular
individuals.66 If the prison system seems to encourage crime
rather than rehabilitation, better correctional facilities can be
established. The proper role for the judge in sentencing is to op-
erate within the discretion given him, not to use his power, or
allow the prosecutor to use it, in order to prevent jury trials.
The ABA has proposed concessions for defendants who co-
operate with law enforcement officials by helping to convict other
offenders.67 Again, this does not justify plea bargaining, for the
prosecutor can gain a defendant's assistance by promising charge
reductions or favorable sentencing recommendations even if he
goes to trial.
The ABA has noted that pleas obtained through sentence and
charge concessions may make "public trial unnecessary when
there are good reasons for not having the case dealt with in a
public trial." 68 Any state interest in avoiding publicity in cases
involving rape, indecent conduct, or national security information
can be served only by eliminating public trial. But it is difficult
to conceive of an individual case in which the interest in forestal-
ling publicity outweighs the individual defendant's constitutional
rights in an accusatorial system.
The remaining justifications for sentence and charge conces-
sions in the ABA's proposals are of an administrative nature:

(i) . . . the defendant by his plea has aided in ensuring the


prompt and certain application of correctional measures to him;

(vi) . . . the defendant by his plea has aided in avoiding


delay (including delay due to crowded dockets) in the disposition

64See note 6 supra; Comment, supra note 5, at 209-II.


65 See note 6 supra.
66 See MODEL PENAL CODE ? 6.12 (Proposed Official Draft I962) (judge may
reduce sentence after conviction if circumstances warrant).
67 See note 6 supra.
68 Id.

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I970] PLEA BARGAINING I405

of other cases and thereby has increased the probability of


prompt and certain application of correctional measures to other
offenders.69

There are no less restrictive means of achieving the promptness


and certainty produced by inducing defendants to waive their
constitutional rights. An abandonment of the practice would
almost certainly lead to a sharp increase in the number of jury
trials and a concomitant increase in expenditures as more court-
houses, judges, and other facilities and personnel become neces-
sary. The state interest in minimizing trial expenses inevitably
conflicts with the right of each defendant to the constitutionally
prescribed trial procedure.70
When thus stripped to its essential rationale, plea bargaining
substitutes the values of administrative efficiency in the criminal
process for the values of trial. The practice greatly curtails use
of the constitutionally prescribed trial procedure, yet the Con-
stitution makes no provision for the suspension of these funda-
mental guarantees for reasons of convenience or economy. The
only specific provision for abrogating constitutional rights, i.e.,
for suspending the writ of habeas corpus in "Cases of Rebellion
or Invasion, 71 requires the existence of a war or similar emer-
gency. If abolishing plea bargaining threatened serious harm to
the entire society, the practice might be permitted to impinge on
fundamental interests. For example, in Korematsu v. United
States,72 the risks of espionage and sabotage by Japanese and
Japanese-Americans were held to justify their exclusion from
western areas of the country.73 Cessation of plea bargaining hardly

69 STANDARDS RELATING TO PLEAS OF GUILTY ? i.8 at pp. 8-9.


70 See Pettyjohn v. United States, No. 21,666 (D.C. Cir., Nov. I7, I969)
(Bazelon, J., dissenting) ("Under Jackson, then, the practice of plea bargaining
can be constitutionally justified only on grounds of necessity.").
71 U.S. CONST. art. I, ? 9, cl. 2. The third amendment, which allows quartering
of soldiers in private homes during wartime if prescribed by law, might also be
regarded as a constitutional provision for suspension of fundamental liberties. The
fifth amendment exempts the armed forces from the requirement of a grand jury
indictment or presentment prior to prosecution. This exemption has been
interpreted to relieve the armed forces of the petit jury requirement of the sixth
amendment. See, e.g., Ex parte Quirin, 3I7 U.S. I, 40 (1942); Ex parte Milligan,
71 U.S. (4 Wall.) 2, I23 (i866).
72 323 U.S. 2I4 (I944).
7 In Hirabayashi v. United States, 320 U.S. 8i (I943), the Court sustained a
conviction for violation of a curfew imposed only on persons of Japanese ancestry.
In both Korematsu and Hirabayashi, the Court rested its holding on the exigencies
of war and threatened invasion. See 323 U.S. at 223; 320 U.S. at ioo-oi. When
such justifications are lacking, the government's power is considerably lessened.
See Ex parte Endo, 323 U.S. 283 (944) (detention of concededly loyal citizen,
even though of Japanese ancestry, had no relationship to protection of war effort).

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I406 HARVARD LAW REVIEW [Vol. 83:I387

poses such a threat. Unlike the situation in Korematsu, much of


the harm threatened by the abolition of plea bargaining can be
avoided by providing the additional resources necessary for more
trials. Even without the commitment of more resources, "poten-
tially dangerous" defendants can be tried on an expedited basis.
Allowing bureaucratic values of efficiency to override constitu-
tional guarantees is contrary to the esential purpose of the Bill of
Rights. These fundamental protections of the individual are con-
ditions imposed on all state action; they would be nullified if the
state could sacrifice them simply to facilitate more economical im-
plementation of its goals. Many criminal cases embody this princi-
ple. For instance, in requiring the state to provide a lawyer for a
first appeal of right, the Supreme Court rejected state arguments
for limiting expenditures to defendants with "meritorious" claims.-"
Similarly, in requiring the presence of a lawyer at various "critical
stages" of a criminal proceeding, the Court did not treat the nec-
essary expenditures as an offsetting factor.75 The Miranda Court
recognized the criminal system's need for confessions, but never-
theless created an irrebutable presumption that a confession was
involuntary if prescribed warnings were not given.76 When Fay
v. Noia 77 and Townsend v. Sain 78 expanded federal habeas cor-
pus review, finality was sacrificed to preserve individual rights.79
Bruton v. United States 80 held that codefendants cannot be tried
together if one has confessed but cannot be cross-examined be-
cause he refuses to take the stand. In discussing the resulting
burden on the courts, the Court recognized that "[j]oint trials
do conserve state funds, diminish inconvenience to witnesses and
public authorities, and avoid delays in bringing those accused of
crime to trial." 81 But to "secure greater speed, economy and

74 Douglas v. California, 372 U.S. 353 (I963); see Griffin v. Illinois, 351 U.S.
I2 (1956) (state must provide indigents with transcripts necessary for appeal).
75 See, e.g., United States v. Wade, 388 U.S. 2I8 (I967) (lineup); Gideon v.
Wainright, 372 U.S. 335 (I963) (trial).
76 Miranda v. Arizona, 384 U.S. 436, 479-8I (I966):
A recurrent argument . . . is that society's need for interrogation out-
weighs the privilege. . . . The whole thrust of our foregoing discussion
demonstrates that the Constitution has prescribed the rights of the individual
when confronted with the power of government when it provided in the
Fifth Amendment that an individual cannot be compelled to be a witness
against himself. That right cannot be abridged.
77 372 U.S. 39I, 424 (I963) ("conventional notions of finality . . . cannot be
permitted to defeat . . . constitutional rights of personal liberty").
78372 U.S. 293, 3I2, 3I8-I9 (I963).
79The impact of these habeas cases has been significant: the number of peti-
tions filed in federal courts rose from I,830 in I96i to over 7,300 in I968. ANNUAL
REPORT I968 at 195; ANNUAL REPORT OF THE DIRECTOR OF THE ADMINISTRATIVE

OFFICE OF THE UNITED STATES Ig6I at i65.


80 391 U.S. I23 (I968).
81 Id. at I34.

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I970] PLEA BARGAINING I407

convenience in the administration of the law at the price of funda-


mental principles of constitutional liberty" was to pay too high
a price." State fiscal integrity cannot be protected at the expens
of crucial individual rights in the criminal process.83
There is a fundamental contradiction in a criminal justice
system which is bound by a constitutionally established procedure,
but which functions by inducing the majority of defendants to
waive their right to the safeguards of that procedure. The ad-
ministrative needs of the system must not be allowed to nullify
the existing constitutional procedure in this way. The burdens
which plea bargaining imposes on the exercise of constitutional
trial rights render the practice unconstitutional.

IV. ENFORCEMENT

Both prosecutors and defense attorneys will be bound by a


court holding that plea bargaining is unconstitutional. Few de-
cisions prohibiting a well-established practice have spoken so
directly to lawyers. Court decisions demand and should receive
special compliance from the legal profession, for the lawyer's
first duty is to uphold the Constitution, and he has pledged to
work within the law. Further, attorneys who ignore a court rul-
ing can be penalized by censure or loss of license, in addition to
the possible sanctions applicable to all members of society. Eva-
sion of such a decision by prosecutors and defense attorneys
should therefore not be expected.
A prosecutor may nevertheless feel that administrative pres-
sures require disobeying the ruling. He may be able to rational-
ize his behavior because he feels it is in the best interests of
society to convict defendants he believes to be guilty. Similarly,
defense attorneys may still bargain, both to save time and to ob-
tain reduced charges or lower sentences for their clients.
If the moral and deterrent force of the law proves insufficient
to eradicate the practice, judicial enforcement will be difficult.
Plea bargaining is a consensual matter involving the defendant,
defense counsel, if any, and the prosecutor; none of them will
be apparently injured or willing to complain as long as the bar-

82Id. at I35, quoting People v. Fisher, 249 N.Y. 4I9, 432, I64 N.E. 336, 341
(1928) (Lehman, J., dissenting).
83The same principle has been applied in noncriminal areas of constitutional
law. For example, in Shapiro v. Thompson, 394 U.S. 6i8 (I969), a one-year resi-
dency requirement for the receipt of welfare benefits was invalidated because it
denied a welfare recipient equal protection of the laws by infringing his right to
travel. See also Carrington v. Rash, 380 U.S. 89 (I965) (denial of right to vote
to military personnel permissible only after examination of each individual to
determine residency; administrative cost did not justify general prohibition).

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I408 HARVARD LAW REVIEW [Vol. 83:I387

gain is kept.84 The only persons who will have any obvious in-
centive to challenge the practice are defendants who go to trial
and suffer from either a more serious charge or a longer sentence
than they would have received had they pleaded guilty. But it
will be difficult for such an individual to show that he was dis-
criminated against for refusing to bargain. He will first have to
identify a practice of differential treatment.85 To overturn his
conviction, he will also have to prove that a longer sentence or
more serious charge is not justified by the particular facts of his
case.
If defendants who bargain and plead guilty are allowed to
appeal their convictions or attack them collaterally without fear
of increased charges or sentences on retrial, each of them will
have an incentive to seek invalidation of his plea. Although a
plea of guilty usually is a waiver of constitutional trial rights, de-
fendants whose pleas were obtained by constitutionally invalid
plea bargains can hardly be said to have executed a valid waiver.86
North Carolina v. Pearce 87 indicated that sentences can be
increased on reconviction only if the change' is based on new
correctional data concerning the defendant's condition or activi-
ties during the period after his first conviction.88 Although the
breadth of sentencing discretion may still enable judges to evade
this prohibition,89 defendants should no longer entertain serious
fears of punitive resentencing on reconviction. With the threat
of increased sentences largely removed, defendants should have
sufficient incentive to attack guilty pleas obtained through sen-
tence concessions.
The state may charge a defendant who successfully attacks his
conviction not only with the crimes of which he was previously con-
victed 90 but with any crime not considered by the jury at his first

84 See pp. 1389-go supra.


85 Some courts have taken judicial notice of the practice of differential sen-
tencing. E.g., Scott v. United States, 4I9 F.2d 264, 264-74 (D.C. Cir. i969); Dewey
v. United States, 268 F.2d I24, I28 (8th Cir. I959).
86 Cf. Fay v. Noia, 372 U.S. 39I, 440 (i963) (defendant deterred from appealing
by fear of the death penalty could not be regarded as having executed valid
waiver). The holding in North Carolina v. Pearce, 395 U.S. 7II (i969), which
prohibited punitive resentencing on reconviction to deter appeals, suggests that Fay
should be extended to any situation in which the defendant is deterred from
asserting a procedural right by fear of a heavier penalty.
87 395 U.S. 7II (i969).
88 Id. at 723.
89 See The Supreme Court, 1968 Term, 83 HARV. L. REV. 7, 190--92 (I969).
90 See United States v. Tateo, 377 U.S. 463 (i964) (defendant who successfully
attacked convictions by guilty pleas could be retried and reconvicted for the same
crimes to which he had pleaded guilty without placing him in double jeopardy).

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I970] PLEA BARGAINING 1409

trial.9' But punitive recharging, like punitive resentencing, can be


used to deter the exercise of important rights in the criminal proc-
ess, and any reservation by the state of the power to charge may
discourage a defendant from attacking his conviction. Though
beyond the present limitations imposed by the double jeopardy
clause, barring the state from rejuvenating accusations which
were quashed before the first conviction, especially if the judge
approved the decree or dismissal of the charge,92 would prevent
most punitive recharging. Perhaps the state should also be pro-
hibited from making a new accusation based on the same conduct
unless the charge is justified by evidence discovered after the first
trial. But prosecutors might find it easy to generate "new" evi-
dence, and thus nullify the rule. It might not be too great a
burden on the state's interests to go even further by requiring
that all accusations based on the same transaction or occurrence
be brought at the original trial; the state would then have only
one opportunity to charge a defendant for particular conduct.
With substantial limitations on punitive recharging and re-
sentencing in effect, appeal seems an initially adequate avenue
for attacking plea bargains,93 although collateral attack will also be
available if the rights to appeal are exhausted or lost.94 However,
serious evidentiary problems will arise on either appeal or col-
lateral attack. Since the prosecutor, defense counsel and defend-
ant would have testified to the absence of a bargain at the con-
stitutionally required hearing before acceptance of the plea,93

The double jeopardy provision of the fifth amendment has been incorporated into
the meaning of "due process" in the fourteenth amendment, so that it now applies
to the states as well as the federal government. Benton v. Maryland, 395 U.S. 784
(I969).
91 In Green v. United States, 355 U.S. I84 (1957), a defendant tried by a jury
which had been instructed on counts of first and second degree murder was con-
victed of second degree murder. After his first conviction was overturned, he was
retried and convicted of first degree murder. The second conviction was reversed
by the Supreme Court because the second prosecution violated the double jeopardy
clause of the fifth amendment. Two theories supported the result: (i) the defendant
was in jeopardy for the offense before a jury in the first trial, but the jury was
discharged without his consent; he cannot be retried for the offense unless "un-
foreseen" circumstances (which do not include a prosecutor's request for a new trial
because the present one was going badly) caused the discharge; (2) a jury verdict
on a lesser included offense is an acquittal on the greater charge.
92E.g., WIS. STAT. ? 955.17(2) (I967); see NEWMAN 88-89.
" The Court in North Carolina v. Pearce, 395 U.S. 7II, 724 (i969), stated
that its rule against punitive resentencing to deter defendants from challenging
their convictions should be applied in cases which arise on appeal as well as on
collateral attack.
94See Developments in the Law-Federal Habeas Corpus, 83 HARV. L. REV.
1038, I093-1112 (I970).
95 See Boykin v. Alabama, 395 U.S. 238 (I969).

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I4IO HARVARD LAW REVIEW [Vol. 83:I387

the trial record will likely contain little basis for reversal on ap-
peal or for granting relief on a petition for habeas corpus. At
least on collateral attack, a new hearing can be held. But the
prosecutor can hardly be expected to contradict his trial testi-
mony at the later hearing. Although a defense attorney who
originally felt that a bargain was in the best interests of his cli-
ent may now recognize that attacking the bargain is the proper
course, he too will be loathe to admit his earlier perjury before
the reviewing court, especially if he does not represent the de-
fendant in that later proceeding. The hearing will turn on credi-
bility, with the defendant's word pitted against the prosecutor's
and perhaps even his own trial attorney's. Furthermore, the
truthful defendant's attempt to overturn his conviction may be
lost in a mass of untruthful attempts by the defendants who
pleaded guilty, since they have nothing to lose by attacking
their pleas. Therefore, even if incentives for attacking plea bar-
gains are assured, these problems of proof may inhibit defendants
from bringing such attacks and hinder court enforcement of a
constitutional rule against plea bargaining when they do.
Nevertheless, not all defendants who are penalized for going
to trial or who are induced to plead guilty need be successful in
challenging their convictions to effectuate a rule against plea
bargaining. An occasional judicial decision overturning a plea
bargain may substantially deter the prosecutor, since it is at least
embarrassing for such a public official to be discovered intention-
ally violating a constitutional rule. Defense attorneys, who are
usually under less time pressure than prosecutors, may also feel
that bargaining is not worth even a small risk of punishment. Ju-
dicial enforcement should thus have some concrete impact on the
behavior of prosecutors and defense attorneys. But the effective-
ness of a court ruling against plea bargaining still depends greatly
on the degree of voluntary compliance it receives from members
of the bar.

V. CONCLUSION

Plea bargaining nullifies constitutional guarantees for a sub-


stantial number of criminal defendants, yet it is a key element of
the existing criminal justice bureaucracy. The conflict between
administrative economy and constitutional values is intense.
The Constitution guarantees the primacy of the individual in the
criminal process; the fifth and sixth amendments embody the basic
protections to be afforded all criminal defendants. Efficiency, on
the other hand, is simply the general interest of the state in achiev-
ing its goals. This diffuse interest is not usually recognized as a

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I970] PLEA BARGAINING I4I

justification for undermining constitutional protections. Perhaps


elimination of plea bargaining would require so drastic a reallo-
cation of resources that the basic social order would be seriously
threatened. But to accept such a justification would be to admit
that the fifth and sixth amendment guarantees have proved un-
workable. Abolition of constitutional protections should come
only through full and open public debate, not through the unsup-
ervised practices of prosecutors, defense counsel, and judges.
The elimination of plea bargaining will obviously place the
existing criminal justice system under severe stress, and no court
is capable of fully restructuring the system in response to the
change. But legislatures also have an obligation to seek out
other means of mitigating the conflict between administrative
efficiency and fundamental rights, means which will withstand
constitutional scrutiny. Thus, society might allocate more re-
sources to the criminal process. It might choose to penalize
many fewer forms of individual behavior.96 By appropriate re-
duction of penalties, the right to jury trial might be bypassed
for many offenses. Indeed, a system which depended less on
incarceration and more on parole and similar programs might
prove more effective as well as less expensive.
Well aware of the need for legislative response to a judicial
decision that invalidates plea bargaining, judges have avoided
analyzing the constitutionality of the practice. The bar, which has
actively participated in plea bargaining, has attempted to dress
it in procedural niceties and has manufactured weak or faulty
justifications for it. But neither the lack of an assured legislative
response nor the bar's substantial involvement in the practice
should affect the legal profession's evaluation of it. Lawyers and
judges more than other citizens are under an obligation to main-
tain the criminal process in conformity with the Constitution. To
restore the defendant's fundamental trial rights to their traditional
preeminence, plea bargaining should be declared unconstitutional.

96 See generally H. PACKER, THE LIMITS OF THE CRIMINAL SANCTION (1968).


The criminal law is not the only instrument available for controlling undesirable or
harmful conduct. For example, gambling could be subjected to regulation rather
than criminal penalties. Simple assault might be reclassified as a tort. First offenders
could be recognized as less harmful than recidivists and treated less severely.

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