Plea Bargaining's Baselines

By Bowers, Josh | William and Mary Law Review, March 2016 | Go to article overview

Plea Bargaining's Baselines


Bowers, Josh, William and Mary Law Review


ABSTRACT

In this Symposium Article, I examine the Court's unwillingness to take seriously the issue of coercion as it applies to plea bargaining practice. It is not so much that the Court has ignored coercion entirely. Rather, it has framed the inquiry in a legalistic manner that has made immaterial the kinds of considerations we might think most relevant to the evaluation. The Court has refused to ask qualitative questions about felt pressure, prosecutorial motivation, or the risk or reality of excessive punishment. All that matters is legal permissibility. A prosecutor may compel a defendant to plead guilty as long as she uses only code law to do so. In this way, the Court's coercion baseline is legalistic--it is defined by what the prosecutor is legally entitled to pursue.

Recently, however, the Court has shifted its constitutional focus away from code law. In a series of right-to-counsel cases, it has redefined prevailing plea bargaining practice as the benchmark. This amounts to an emerging extralegalistic baseline, defined not by code law but rather by the parties' efforts to circumvent it. Of course, the Court did not mean to alter coercion's landscape and almost certainly will not do so. My intention is to demonstrate only that the doctrinal building blocks are in place for the adoption of a better baseline--a proportionality baseline. I defend this alternative extralegalistic baseline and even prescribe a practical methodology for its discovery. And, notably, my preferred approach is not without precedent. The Court has applied analogous extralegalistic baselines to claims of coercion in other constitutional contexts.

TABLE OF CONTENTS

INTRODUCTION
  I. BARGAINING BENEFITS
     A. Baselines: A Primer
     B. Plea Bargaining's Predictive Baseline
     C. Plea Bargaining's Normative Baseline
 II. TRIAL PENALTIES
     A. Plea Bargaining's New Predictive Baseline
     B. Plea Bargaining's New Normative Baseline
     C. Plea Bargaining's Burgeoning Proportionality Baseline
III. SOME TENTATIVE THOUGHTS ON A JURISPRUDENCE OF PROPORTIONALITY
     A. Legality All the Way Down
     B. A Proportionality Methodology
     C. Proportionality Applied
 IV. EXTRALEGALISTIC COERCION & POSITIVE CONSTITUTIONAL LAW
     A. Justice Roberts's Extralegalistic Conception of Coercion
     B. Reforms Revisited
     C. Justice Scalia's Extralegalistic Conception of Coercion
CONCLUSION

INTRODUCTION

What does it mean for a guilty plea to be "voluntary"? As I have examined elsewhere, the Supreme Court has adopted a procedural conception of voluntariness that principally demands that the defendant "plead[] guilty with his eyes open." (1) That is to say, a guilty plea is voluntary as long as the defendant is given fair notice of the charges, the rights waived, and the consequences of pleading guilty. (2) By focusing almost exclusively on a procedural doctrine of fully informed bargaining, the Court has neglected to examine substantive questions of when and whether a plea or trial sentence is disproportionate, or when and whether the sentencing differential between plea and trial is so great that the defendant was given no practical choice but to take the deal. Likewise, the Court has held prosecutorial motivation irrelevant. (3) Thus, a prosecutor may freely threaten sentences of death or mandatory life without parole even if her objective is only to compel a plea to a term of years. (4) Of course, the charge must be supported by probable cause. (5) But this measure of technical legal guilt--or "formal legality," as Bill Stuntz termed it--is the touchstone. (6) Concretely, a charge supported by probable cause can never be coercive. And, as long as the defendant sees the charge coming, his plea is constitutionally voluntary. (7)

The Court has recently revisited the practice of plea bargaining in a series of cases establishing the right to effective assistance of counsel during negotiations and pleas. …

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