Making a record of plea offers as a response to Frye and Lafler, a thoughtful guest post

I am pleased to provide a guest post from Elaine Mittleman, who has handled appeals in several Courts of Appeal throughout the federal system.  As counsel appointed under the Criminal Justice Act to handle these appeals, Ms. Mittleman’s thoughts about making a record of plea offers are particularly noteworthy.

With thanks for her thoughtful effort, here is a guest post worth reading:

Putting Plea Offers on the Record

I appreciate the opportunity to contribute this guest post. The thoughts expressed here are mine.

In the recent Supreme Court cases about plea bargaining, Missouri v. Frye, 566 U.S. __, 132 S.Ct. 1399 (2012), and Lafler v. Cooper, 566 U.S. __, 132 S.Ct. 1376 (2012), Justice Kennedy suggested that the trial court may adopt some measures concerning the plea offer process. One measure is that “formal offers can be made part of the record at any subsequent plea proceeding or before a trial on the merits, all to ensure that a defendant has been fully advised before those further proceedings commence.” Frye, 132 S.Ct. at 1409.

In Lafler, 132 S.Ct. at 1390, Justice Kennedy noted that the prosecution and the trial courts may adopt some measures concerning the plea offer, which may help ensure against late claims after a trial leading to conviction. He also explained that there are procedures about plea offers currently used by various states.

The plea offer process may differ between state and federal courts. However, Justice Kennedy referred only to procedures in state courts when he suggested that formal offers should be part of the record. The plea offer process in federal courts would benefit if plea offers were put on the record.

Although there are guilty pleas in about 97 % of federal criminal cases, the defendant should be given correct information about the consequences of going to trial. The number of criminal trials in the federal courts from FY 2008 – 2012 was 13,719, which was 3.3 % of the total number [412,107] of cases. The number of criminal trials in the District of Nebraska for FY 2008 – 2012 was 88, which was 2.9% of the total number [3,060] of cases. See United States Sentencing Commission, Statistical Information Packet (available at

In light of the Frye and Lafler decisions, the district courts should include in the record information about any plea offer. The courts should ensure that the defendant understands the plea offer. Further, the courts should include in the record the defendant’s decision whether to accept the plea offer or to reject the plea offer and go to trial.

Having information about the plea offer on the record is useful in cases addressing 2255 motions about ineffective assistance of counsel. Many of the issues about ineffectiveness should be easily decided if the district court has ensured that the record reflects the defendant’s understanding of and decision to either accept or reject the plea offer.

Several cases illustrate the advantages of having the district court include a discussion on the record with the defendant about any plea offer. In United States v. Cooper, 891 F.Supp.2d 1071 (D. Neb. 2012), Judge Kopf could rely on the fact that Cooper had represented to him that no one had promised a lighter sentence and that he would be sentenced under the sentencing guidelines. In his opinion, Judge Kopf indicated that he had conducted a lengthy Rule 11 proceeding. Having the detailed record of the plea hearing provided information on which the subsequent 2255 motion could be decided without an evidentiary hearing.

In Toepfer v. U.S., No. 12-13047 (11th Cir. May 13, 2013) (available at, the trial court advised the defendant, just before the jury was sworn in, about the difference in sentencing between going to trial and pleading guilty. The court explained that, if the defendant would be found guilty of possessing more than 999 marijuana plants, he would be subject to a 10-year mandatory minimum and the court would have no discretion as to the sentence. The court explained that, if the defendant entered a guilty plea, the court could make a finding of fewer than 1,000 plants, which would trigger a 5-year mandatory minimum. The defendant said that he understood the consequences, but still wanted to go to trial. In a subsequent 2255 proceeding concerning ineffectiveness, the trial court’s admonition before trial provided support for the finding that the defendant was not prejudiced because he had no intention of pleading guilty.

A defendant should be advised before he goes to trial of the effects on the likely sentence of his decision to go to trial instead of accepting a plea offer. Having the district court advise the defendant about the potential sentencing disparities and loss of credit for acceptance of responsibility can help ensure that defendants understand and take seriously the stark differences in sentences that result from the decision to go to trial.

Defendants are carefully advised of the effects of their decisions to plead guilty. Defendants should similarly be advised of the effects of their decisions to go to trial and thereby face a longer sentence if convicted. The practice of providing the defendant with sufficient knowledge to make an informed decision would provide other benefits. The defendant’s decision to go to trial results in an extensive use of judicial and other resources. In this period of budget restrictions, a defendant’s decision that may greatly increase costs should be based on correct information, instead of possibly faulty assumptions.

As Justice Kennedy noted in Frye, 132 S.Ct. at 1407, a plea agreement can benefit both parties by conserving valuable prosecutorial resources and by allowing defendants to receive more favorable terms at sentencing. The court also benefits by reducing the burden on the judges and court staff from conducting lengthy trials.

There are also advantages to putting on the record the specifics of the plea offer. In light of the extensive plea bargaining, transparency would be increased if plea offers were on the record. Further, having a record of the plea offer would minimize disputes about whether and when a plea offer had occurred. Presumably, many ineffectiveness claims could be easily resolved by referring to the plea discussion in the record, instead of requiring an evidentiary hearing in a 2255 proceeding.

The federal courts and the participants in criminal cases would benefit greatly if plea offers were placed on the record.

Elaine Mittleman

6 responses

  1. Pingback: A post script to yesterday’s guest post « Hercules and the umpire.

  2. I do have a couple of quibbles on this; although this layman pleads surprise that plea discussions aren’t already on the record as a matter of course. What lawyer, on either side, would be willing to discuss so momentous a thing off the record?

    First, I’d want a transcript of the entire plea offer, negotiation, and acceptance/rejection as the court’s record, rather than a summary, or competing summaries submitted by both sides. That seems to me to be the only way for the court to determine whether one side or the other was railroaded into the agreement or its rejection.

    Second, perhaps I’m reading too much into this, but I have a problem with loss of credit for acceptance of responsibility [by rejecting a guilty plea offer]. If the defendant truly is not guilty (especially as in innocent), what responsibility, for what act, would the defendant be rejecting by declining a guilty plea offer? The number of rape convictions, for instance, being overturned by new DNA evidence (with no knock on the initial trial court intended) is almost becoming cliche, including those who accepted a guilty plea in return for lighter sentencing even though they didn’t do the deed.

    The flip side applies, too, albeit with less publicity–the defendant really did do the deed, but his sharp lawyer cozens acceptance of guilty to a lesser offense out of a harried, overworked, and/or simply not as good prosecutor. The defendant here is ducking responsibility by getting off with a lesser plea and sentence.

    Certainly, in most cases there is a real question of accepting responsibility; it’s the mindset implied by the phrase that bothers me.

    Eric Hines

  3. Mr Hines,

    Because this is an area that is still developing, and may come before me in my capacity as a judge, I won’t comment. Indeed, I told the lawyer who provided the very thoughtful guest post essentially the same thing before I offered her the opportunity for the guest post. I will say that you raise some interesting points.

    Thanks for your engagement. All the best.


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