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Source: Harvard Law Review, Vol. 83, No. 6 (Apr., 1970), pp. 1387-1411
Published by: The Harvard Law Review Association
Stable URL: http://www.jstor.org/stable/1339821
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THE UNCONSTITUTIONALITY OF
PLEA BARGAINING
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-
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I970] PLEA BARGAINING I389
I. PRESENT PRACTICE
'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
II. REFORM
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I970] PLEA BARGAINING I391
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
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
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
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I970] PLEA BARGAINING I395
III. CONSTITUTIONALITY
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I396 HARVARD LAW REVIEW [Vol. 83:I387
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....
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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-
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I398 HARVARD LAW REVIEW [Vol. 83:I387
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I970] PLEA BARGAINING I399
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I400 HARVARD LAW REVIEW [Vol. 83:I387
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I970] PLEA BARGAINING I40I
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I402 HARVARD LAW REVIEW [Vol. 83:I387
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I970] PLEA BARGAINING I403
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
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I970] PLEA BARGAINING I405
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I406 HARVARD LAW REVIEW [Vol. 83:I387
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
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I970] PLEA BARGAINING I407
IV. ENFORCEMENT
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
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I970] PLEA BARGAINING 1409
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
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I970] PLEA BARGAINING I4I
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