Pleas and the BS that comes with them

While lamenting that this blog is likely to be timid, and worse, less than candid, John K., commenting at SL&P, posed a question that is a wonderful way to begin to honestly discuss the role of a federal trial judge.  He wrote:

On the off chance the judge’s blog will be more candid, I’d love to get his take on plea colloquies… particularly ones in which defendants who end up with home detention/probated sentences swear prosecutors who menaced them with plausible trial-penalty threats of 30 years in prison in no way coerced them into taking the deals.

Since judges must know it’s BS, I can’t help but wonder how they rationalize their role in such a ridiculous exercise.

Sure, I know the defendant’s assertion that no one “threatened” him is BS.   However, I have concluded that it is the type of BS that a trial judge must tolerate.  Above all, lawyers and the clients they represent deserve predictibility.  Let me explain.

First, there is legal gobbledygook that helps.  The trial judge can rationalize accepting the plea by relying upon a  hoary legal maxim.   Roughly stated, a prosecutor does not “threaten” if he or she only promises to do what the law permits.  But, this formalism is not alone sufficient to justify accepting the plea.  Something more is required.

I rely upon Justice Holmes to provide that “something more.”  According to Holmes, when eying what the government might do to them, “[p]eople want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of public force through the instrumentality of the courts.”  Oliver Wendell Holmes, “The Path of the Law,” in Holmes, Collected Legal Papers, p. 167  (New York: Peter Smith, 1952) quoted in Bradley C. S. Watson, Oliver Wendell Holmes, Jr. and the Natural Law.

A judge’s adherence to accepted legal formalisms such as “a threat is not a threat if the prosecutor only promises to do what the law permits,” allows lawyers and their clients to predict outcomes.  Let me be more concrete.

Contrary legal dogma notwithstanding, if a Herculean judge were to reject the plea because the judge decided the defendant was in fact “threatened,” what would happen to the client?   Because a judge generally cannot control the prosecutor’s charging decisions or make the prosecution go away, the most Hercules can practically do is set a trial.  In many instances, a trial produces results far worse than the bargained for plea deal.  It is, of course, possible that the defendant would be acquitted.  Even so, by rejecting the plea and the formalism that it is founded upon, Hercules, the judge, wrecks havoc with the client’s desire for predictability.

Now, the foregoing rationalization for accepting the plea depends upon additional factors under Rule 11 of the Federal Rules of Criminal Procedure and the precedents of the Supreme Court.   Among other things, I must satisfy myself that the defendant is truly guilty.  I must satisfy myself that the defendant knows his rights (the alternatives).  I must satisfy myself that the defendant is represented by competent counsel.  Those, of course, are formalisms as well, but they tend to assure the procedural fairness that Holmes also insisted upon.

When it comes to determining how hard the government is going to hit you,  predictability rather than uncertainty is preferable.  So, John K., that is what allows me to accept pleas despite the copious amounts of BS that come with them.


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