Home » Judges Shouldn’t Be Involved in Plea Agreements

Judges Shouldn’t Be Involved in Plea Agreements

  • Gene 

The vast majority (around 90%-95%)of federal prosecutions end in the accused defendants pleading guilty through what is known as a “plea agreement.” All three types of plea agreements are governed by Rule 11 of the Federal Rules of Criminal Procedure. These disturbingly high numbers have often raised concerns of professionals — both lawyers and judges — observing the federal system.  For example, Harvey Silvergate, a respected civil rights attorney, examined this concern in his well-known book Three Felonies a Day, pp. XVIII-XIX:

Astute observers of the federal criminal justice system have long since given up believing that the guilty plea reveals true culpability. It’s all too common for such pleas to be the product of risk avoidance at the expense of truth.  In this sense, the scripted plea colloquy has become a big part of corruption afflicting the entire system.

Another professional voice, the esteemed Honorable Alex Kozinski, wrote in his forward to the 44th Edition of the Georgetown Law Journal Annual Review of Criminal Procedure (2015), pp. xi-xii:

[It is a myth that] [g]uilty pleas are conclusive proof of guilt. … The incentive to plead guilty to some charge that will allow the defendant to salvage some portion of [their] life[] becomes immense.  If the prosecution offers a take-it-or-leave-it plea bargain before disclosing exculpatory evidence, the defendant may cave to the pressure, throwing away a good chance of acquittal.

As such, many professionals question the reliability of guilty pleas in this day and age.  There are, however, certain protections on the plea process that seek to reduce the kinds of influence these professionals have noted unfortunately infect the process.

One of those limitations stems from the Separation of Powers provision in the United States Constitution.  Because of that provision, it is the Executive branch alone — not the Judicial — that holds authority in decisions of charging people with crimes and/or in offering plea agreements.  See United States v. Batchelder, 442 U.S. 114, 124 (1979)(“Whether to prosecute and what charges to file or bring before a grand jury are decisions that generally rest in the prosecutor’s discretion.”).  This separation of powers precludes judges from being involved in the plea agreement process in any way because, as the United States Supreme Court has expressed, “the exertion of any improper influence” by a judge may undercut the voluntariness of a guilty plea.  See Parker v. North Carolina, 397 U.S. 790, 803 (1970).  The Second Circuit Court of the United States Court of Appeals warned of the courts placing themselves in the “undesirable and injudicious posture of becoming ‘superprosecutors'” by attempting to review charging decisions of the prosecutor or interfere with plea negotiations.  See Inmates of Attica Corr. Facility v. Rockefeller, 477 F.2d 375, 380 (1973).

For this reason, courts are unequivocally prohibited from participating in plea agreement discussions under Rule 11(c)(1).  This absolute prohibition has been interpreted by courts to encompass “all forms of judicial participation in or interference with the plea negotiation process.”  United States v. Baker, 489 F.3d 366, 373 (D.C. Cir. 2007); see also United States v. Miles, 10 F.3d 1135, 1139 (5th Cir. 1993); United States v. Bruce, 976 F.2d 552, 558 (9th Cir. 1992)(“[T]he unambiguous mandate of Rule 11 prohibits the participation of the judge in plea negotiations under any circumstances: it is a rule that … admits of no exceptions.”).  In fact, Rule 11 does not even permit a federal court to intrude into the charging decision by rejecting a plea agreement because the court decides the charge is too lenient.  Se Ellis v. United States District Court, 356 F.3d 1198, 1209 (9th Cir. 2004); see also ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 283 (1987)(“it is entirely clear that the refusal to prosecute cannot be the subject of judicial review.”).

Only when a court believes a federal prosecutor has abused their discretion may a federal judge interject themselves into the process.  See Santobello v. New York, 404 U.S. 257, 262 (1971).  This is because, when judges become “superprosecutors,” the chances of a defendant pleading guilty despite innocence, knowing that — otherwise — they’ll have to face that same judge during trial and at sentencing, and upsetting that judge could lead to a significantly higher sentence.

Thankfully, Rule 11 exists to cull at least some of the issues and concerns in the federal guilty plea process and to ensure that judges are impartial during the plea process.

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