Senator Lindsey Graham of South Carolina has proposed establishing a National Criminal Justice Commission.
I have doubts about such commissions. I can't recall one that actually did any good for all the money that was spent on it. What seems to happen is one of two things: Either it makes decently sensible suggestions that go nowhere (like the Bowles-Simpson Commission); or it makes poor suggestions some of which might get adopted (see, e.g., the Sentencing Commission's parade of defendant-friendly proposals over the last few years).
I have no idea whether there's much chance Sen. Graham's Commission will get created, but I have a couple of ideas, with more doubtless to come, about how such a Commission might approach its job if it ever comes into existence.
The first would be to recognize that, far from being "broken" (which is what we routinely hear from the defense bar and other pro-criminal organizations), the American criminal justice system is one of the big success stories of our day.
As I have noted, the crime rate is down by 50% or more over the last generation. Crime reports show that in 2013, there were more than five million fewer serious crimes per year than there were in 1991 (9,795,658 versus 14,872,900).
That may be called many things. "Broken" is not one of them.
My second suggestion is that any such Commission address what is perhaps the most complained-about feature of the present system: That trials have all but vanished, and that plea bargaining has taken over. And it is indeed true that 97% of cases are resolved by pleas.
This is how it works in the federal system as well as in the states. Although there are indeed problems with the plea system (e.g., that prosecutors give away provable charges simply to save the time and costs of trial), the primary source of complaint from the defense bar has been that prosecutors blackjack innocent defendants into false guilty pleas by threatening "draconian" sentences.
We hear this all the time from, for example, pro-defense ideologues like Judge Jed Rakoff in New York.
OK, fine.
I propose that any federal crime commission recommend amending Rule 11, Fed. R. Crim. P. The Rule at present requires that, "Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea." I would add to that sentence, "...and that there is no reasonable basis to believe the defendant is factually innocent of the charges."
If the court declines to make the no-reasonable-basis-for-innocence finding on the record, it cannot accept a plea, and the case will proceed to trial.
If the defense bar is playing it straight in complaining that the present system abets ruthless prosecutors in coercing pleas from the innocent, it should welcome -- indeed, it should demand -- this change. The problem, of course, is that that's a really big "if."
I like your suggestion for amending Rule 11, Bill, but only if there is the additional requirement that if the plea is not accepted and a trial proceeds that the defendant cannot get a sentence that is more than, say, 25% longer than the offered plea sentence?
The concern is that the innocent defendant feels a need to plead rather than put the government to its proof because many sentences are 100% or 200% or even 300% longer if there is a trial and the defendant loses. It is this extra penalty that creates the concern of coercion. I am very confident that any reasonable cap placed on much more severe the sentence can be after a trial will increase the number of trials.
Doug --
Kent once remarked that you tend to see everything as a sentencing issue, and that seems to be true here as well.
Sentencing is important, you bet, but it's not everything. To me, what's even more important is making sure that punishment -- whatever it is -- gets handed out only to the guy who actually did it.
You don't question that my proposal would improve the determination of that central question by assuring, not merely that there is a factual basis for the plea, but, in addition, that "there is no reasonable basis to believe the defendant is innocent."
Surely that would be an improvement to the fairness of the system all by itself. Thus it should win your approval -- indeed your enthusiastic backing -- all by itself.
Just to clarify, I was referring to a statement Doug made himself on his own blog. It wasn't meant as a put-down.
One need not cast it as a put-down to understand its relevance to Doug's comment here, which concerns a proposal that will improve the fairness and reliability of determinations of guilt. The mystery is why such an improvement should be barred unless it is linked -- as Doug would require -- to sentencing.
Shouldn't we take improvements wherever we can get them?
If pleas are not really all about sentencing, why do we have so many and/or why should we have any at all? The Framers clearly thought trial by jury was the ideal way to establish guilt, and its seems you agree. Ergo, why allow any pleas at all?
If you proposal was to completely eliminate plea in service to improve the fairness and reliability of determinations of guilt, then this would make sense. But you do not propose that, rather you want a system in which prosecutors get to have their tough sentencing cake and also the ease of pleas.
I plead guilty to the charge that I see all significant plea decisions to be a function of sentencing (although I suppose there is also a convenience factor for some defendants, which is why I usually plead guilty when I get a parking ticket). If you can explain to me why we have please is major cases in the first instance, maybe I could support your proposal without concern for its sentencing consequences. But, as you recognize, the (empirically supported) claim by the defense bar is that prosecutors are now about the get so many pleas in so many cases because the sentencing consequences of going to trial and losing has become so extreme.
I am quite eager to better understand how the "plea problem" you are trying to address is not ultimately a sentencing problem, especially since this problem has only become extreme in an era with much more severe/extreme sentences in the federal and many state systems.
"If pleas are not really all about sentencing, why do we have so many and/or why should we have any at all?"
We have them because each side wants them. The prosecution wants to save time and money, and assure a conviction even if only on a dumbed-down charge. The defense also wants cost savings, the dumbing down of the charge, and the assurance that the, ummmm, unfortunate facts be set forth in a relatively calm probation officer's report, rather than have the whole wretched mess spelled out at trial.
There is also the fact that defendants want credit for accepting responsibility, but that was true before MM's or guidelines.
"The Framers clearly thought trial by jury was the ideal way to establish guilt, and its seems you agree. Ergo, why allow any pleas at all?"
Santobello. And the system is too underfunded to take everything to trial. As you correctly observe, this is not my choice.
"But you do not propose that, rather you want a system in which prosecutors get to have their tough sentencing cake and also the ease of pleas."
Prosecutors want plea deals but defendants want them even more. Indeed, if plea bargaining were forbidden, the defense bar's bellowing would be audible on Mars.
My view of it is this: Judges alone have the authority to sentence. Prosecutors alone have the authority to charge (or not to). The legislative branch alone has the authority to set sentencing ranges, including both minimums and maximums.
I think the whole process would be improved (and defense lawyer hypocrisy about pleas lessened) if Rule 11 had the addition I propose. I don't think you disagree with that. But you want something else in the bargain.
I decline. I would note in declining that I have never heard of a proposal like yours, or anything similar, being introduced by any of the 535 members of Congress, including Rand Paul, Mike Lee, Ted Cruz, Jeff Flake, John Cornyn, Pat Leahy, Chuck Schumer, Dick Durbin, Sheldon Whitehouse or any others. I guess I'm not going to feel too bad about declining to endorse a proposal no one else has endorsed.
So my question still stands: Do you think Rule 11 would be improved, and justice for all better served, by changing its language to read: "Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea, and that there is no reasonable basis to believe the defendant is innocent of the charges"?
Yeah, I do think that would be an improvement. But you keep dodging the reality that the defense wants pleas so much FOR SENTENCING REASONS. Indeed, why would an innocent person ever agree to plead guilty if not for fear that the consequences would be much worse if he risks going to trial?
Your post here recognizes a problem, but then you want to address a symptom (pressure on innocent folks to plead guilty) rather than the root cause (sentences that are much too severe after a trial). In drug cases, research shows the "sentencing cost" of exercising trial rights is, on average, a 300% increase in the sentence from about 4 year to 12 years. For Wedon Angelos (who was found not guilty on some charges at trial), exercising his trial rights bumped his sentence from 16 years to 55 years.
These are the cases and reasons the defense complains about the risk of coercive pressure created by MMs and these realities need to be addressed if you really want to see more trials in the federal system. And that is my reason question for you Bill: do you want to see more trials?
In addition, Bill, why do you want and see a need for federal judges in this setting to supervise the work of federal prosecutors? Based on your long experience, Do you think federal prosecutors regularly seek guilty pleas in cases when there is a reasonable basis the defendant is guilty?