The Impropriety of Plea Agreements: A Tale of Two Counties

American Bar Foundation

The Impropriety of Plea Agreements: A Tale of Two CountiesAuthor(s): David LynchSource: Law & Social Inquiry, Vol. 19, No. 1 (Winter, 1994), pp. 115-133Published by: Wiley on behalf of the American Bar FoundationStable URL: http://www.jstor.org/stable/828432 .

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"FROM THE TRENCHES AND TOWERS" Plea Bargaining in the Trenches

The Impropriety of Plea Agreements: A Tale of Two Counties

David Lynch

In this article, the author, a former prosecutor and a former assistant public defender, draws on his five and a half years of experience as a "professional plea bargainer" to explore the many subtleties of a practice that he suggests leads to work avoidance, misplaced loyalties, coercion, and other negative characteristics on the part of courthouse regulars, and to injustice for those criminal defendants who do not wish to plead guilty. He suggests that criminal courts have become overly dependent on plea bargaining, which is used much more extensively than is either necessary or appropriate.

Given the importance of plea bargaining in the criminal courts, it is not surprising that much has been written on the subject. The academic defense of plea bargaining has generally taken one or more of three forms. First, many have concluded that plea bargaining is indispensable to the system of criminal justice-that without it, the courts would be overwhelmed by a mass of trials they would be unable to handle.1 A second defense is that plea bargaining is both constitutionally permissible and morally legitimate, since both sides voluntarily engage in and benefit from the practice.2 Fi-

David Lynch is a doctoral candidate in Criminal Justice, State University of New York at Albany.

1. Indeed, this argument was given support by the U.S. Supreme Court itself in a classic statement in Santobello v. New York, 404 U.S. 257, 260 (1971), in which the court claimed: "Properly administered, it [plea bargaining] should be encouraged. If every criminal charge were subjected to a full-scale trial, the states and the federal government would need to multi- ply by many times the number of judges and court facilities."

2. See, e.g., Thomas W. Church, Jr., "In Defense of 'Bargain Justice,"' 13 Law & Soc'y Rev. 509 (1979).

© 1994 American Bar Foundation. 0897-6546/94/1901-0115$01.00 115



116 LAW AND SOCIAL INQUIRY

nally, some commentators suggest that the abolition of plea bargaining would be impossible because the parties would continue the practice even if higher authorities tried to curb it.3

Although there is a substantial literature on plea bargaining, little of it originates from the vantage point of someone who knows the system from the inside. Plea bargaining, by its very nature, is a closed-door affair that is not readily amenable to observation by outsiders. I bring to this discussion a perspective based on experience with the system: I worked for nearly five and one-half years as a "professional plea bargainer," both as a public defender and as a prosecutor, in the criminal courts of two very different midsized jurisdictions. I believe that my experiences enable me to cast doubt on all three of the typical defenses of plea bargaining.

In my view, plea bargaining is not an administrative necessity for two reasons. First, most criminal defendants do not want trials and would not choose to go to trial even if they faced no penalty for doing so. Moreover, my experience suggests that with appropriate administrative reforms and changes in attitudes, courts are actually capable of handling substantially more trials than they currently do, as I argue below.

Whether or not plea bargaining is constitutional in the narrow legal sense, I think it is wrong to think of it as a voluntary practice-a deal that makes both sides better off. For the small number of defendants who actually want to go to trial, as I explain below, plea bargains must be enforced by substantial coercion from judges, prosecutors, and even public defenders. It is these groups who most strongly support plea bargaining and who work the system to their advantage (and to the disadvantage of defendants).

Finally, even though many actors in the judicial system have substantial discretion, I do not believe that this discretion must inevitably be used to sneak plea bargaining back in through the back door when higher authorities try to curb it. My experience suggests that when a legal culture develops that allows or encourages trials, all the parties involved find a way to adapt to that legal culture. Not only is it administratively feasible to run a court system with vastly more trials than now take place, but it possible to do so without generating enormous resentment from the leading actors in the criminal justice bureaucracy.

My views have grown out of my experiences, so a word about my background is in order. My observations are drawn from two counties in a large Eastern state. (The names of the individuals involved, as well as the names of the counties, have been changed.) I served as a full-time assistant public defender in one county ("Washington County") from April 1986 to July 1989 and as a full-time assistant district attorney in the other ("Lincoln County") from July 1989 to September 1991.

3. See, e.g., Milton Heumann, Plea Bargaining: The Experiences of Prosecutors, Judges and Defense Attorneys (Chicago: University of Chicago Press, 1978) ("Heumann, Plea Bargaining").



The Iniptopriety of Plea Agreements 117

Washington County is a suburban county of a very large city. Lincoln County, located about 45 miles from Washington County, is largely indus- trial, with a diversified manufacturing economy but no large cities. Each has a population of nearly 350,000 people.

Much of the force of my analysis comes from the marked contrast in how criminal cases are processed that I observed in these two counties. Amazingly, although case volumes in the two counties were similar, Lincoln County prosecutors and public defenders effectively processed about 11 times as many jury trials as did their counterparts in Washington County.4

In this essay, I describe the role of plea bargains in the practice of criminal justice in each of these jurisdictions. My theme is that excessive use of plea bargains is both undesirable and unnecessary. It is possible to run a criminal justice system with dramatically more trials than we now conduct, as my experience in Lincoln County demonstrates. This "high-trial regime" is fairer and no less efficient than a system in which trials are dis- couraged and virtually all defendants are coerced into accepting negotiated sentences in exchange for guilty pleas.

As with all case studies, my findings may be difficult to generalize, and some may be unique to the counties involved. Nevertheless, I believe they can provide some insights about practice elsewhere.

CASELOADS, WORK AVOIDANCE, AND COERCION

It may be that in some jurisdictions (e.g., very large cities), caseloads make plea bargaining a necessity, but my sense is that this was not the case in the areas where I practiced law, even though we courthouse regulars de-

4. According to the official 1990 report produced by the state agency responsible for collecting these statistics, 33% of Lincoln County's 1,328 non-drunk driving convictions were obtained in jury trials. This was 11 times higher than Washington County's jury trial rate of 3% for its 1,504 non-drunk driving convictions. Overall, 4% of this state's convictions were obtained in jury trials. In seven of this state's counties, none of the convictions were obtained at trial-100% of the convictions were obtained by guilty pleas. Note that even if the official figure of 33% for Lincoln County is inaccurately high (my personal estimation would confirm it to be about 15%-still an impressive fivefold increase over Washington County), it is clear that Lincoln County prosecutors and public defenders were handling a remarkably larger number of jury trials than were their counterparts in Washington County. Interestingly enough, the elevenfold trial rate differential between the two counties would effectively still hold true (prosecutor per prosecutor and public defender per public defender) even if one were to use my unofficial and lower figure of 15% rather than the official figure of 33% for Lincoln County. This is because Lincoln County-despite similar population and caseload-had fewer than half as many prosecutors as did Washington County (8 full time and 2 part time vs. 20 full time) and fewer than half as many public defenders (5 full time and 3 part time vs. 11 full time and 3 part time). However one measures it, it is clear that Lincoln County prosecutors and public defenders were handling at least 10 or 11 times as many jury trials as were their counterparts in Washington County. As to judges, differences in trial volumes appeared to be irrelevant, since (as explained later) judges did not appear to be working close to capacity-not even in more trial-prone Lincoln County.




luded ourselves and others into believing the popular wisdom that the system would disintegrate were plea bargaining to be eliminated.

The simple fact was that the evidence against most defendants was overwhelming, and many defendants, realizing this, probably would have pled guilty eventually with or without a bargain. To go to trial when the evidence is overwhelming would invite public humiliation. But more important, it would indicate an obvious lack of remorse to the judge, who presides not only at the trial but at the sentencing as well. Defendants who had little hope of winning at trial generally recognized that trials were not in their best interests and correctly guessed that judges would usually reward a plea of guilty (even one entered without a bargain) with a greatly reduced sentence. When I was a public defender, most of my clients who were offered awful bargains by the prosecutor eventually entered open pleas of guilty before a judge (that is, pleading guilty without any bargain) rather than bring their "dead-bang loser" cases to trial. This strategy was not as risky as it might appear, since judges almost never punished defendants for entering open pleas of guilty by rendering sentences stiffer than those the prosecutor had been willing to live with. Indeed, defendants often got some further reduction for having shown a reasonable attitude by avoiding trial with a hopeless case.

For example, an armed robber was offered several years of imprison- ment by the prosecutor in exchange for his guilty plea. The judge, after being informed of the prosecutor's offer, accepted the defendant's open plea of guilty and sentenced the defendant to 11 months in the county jail. The Washington County judge (who perhaps went a bit overboard despite some mitigating factors) realized that if he had sentenced the defendant to a term more severe than that being offered by the prosecutor, few defendants would enter open pleas of guilty before him again, thus resulting in more trials.5 The fact that most defendants would probably have pled guilty even without a bargain never seemed to occur to many courthouse actors (myself included for quite some time), who were so caught up in the culture of plea bargaining that they never considered the probability that only a small percentage of defendants actually would ultimately want a trial.

Even those few clients in Washington County who never would have pled guilty without a guaranteed concession of some sort would not have caused the system to break down had they been refused a plea bargain and been brought to trial. True, the public defender caseloads were sufficiently large that even these few cases (perhaps 15% or 20%) would seem "on pa-

5. Things were even less risky for the defendant in Lincoln County, where I later served as a prosecutor. There, a defendant would routinely be permitted to withdraw a guilty plea after being told by the judge what the sentence of the court would eventually be. As I discuss later, this strange practice was compatible with the legal culture in Lincoln County, which gave defendants every opportunity to invoke their right to a jury trial should they so desire. The fact that it encouraged guilty pleas was an unintentional result.



The ImpLopriety of Plea Agreements 119

per" to be difficult to dispose of by trials. I believe, however, that handling the additional trials would not have been as difficult as it might appear to an outside observer.

We public defenders had a gift for seeming much busier than we really were. Defense attorneys (and prosecutors also) constantly requested and received continuances for cases because of minor problems-witness on vaca- tion, more time needed to work out a deal, an open bed needed at some rehabilitation facility, and so on-delaying the case for weeks. But the case would remain on one's list of open cases, even though it required little or no further work. The more pending cases one had, the fewer new cases one would be assigned. Public defenders thus had an incentive to inflate their caseloads, giving the appearance of a burden much more onerous than it really was and that they were much too bogged down juggling the heavy load to do any significant number of trials.

To avoid work, attorneys often exaggerated their official caseloads in other ways. I recall a crisis during which I had to go into another attorney's office to seek a file needed immediately in court. While flipping through his files, I noted that fully a third of his "open cases" had in fact already under- gone final dispositions-some as long as six months earlier-and should have been "closed out" (taken off his list of open cases). During that same search, I also had to go into another attorney's office, and while flipping through his files, I observed an identical pattern. My secretary told me that nearly everyone carried open cases after they had been closed, and that I was just creating more work both for myself and for her by promptly closing out cases instead of "hanging onto them for awhile."

At times, the attorneys in my office worked hard-but only during trial terms, which were scheduled for roughly two weeks out of every six. Be- tween trial terms we had plenty of time that could have been used to prepare cases for trial if we had wanted to. Instead, most of us chose instead to take things "slow and easy." In fact, we-did about 80% of our work during the third of the time that was reserved on the judicial calendar for criminal trials. Attorneys often spent the periods between trial terms on private law work, golfing, long lunches, or just relaxing.

Much of the work done between trial terms was "brain-dead" work that any paralegal could have helped us do (drafting routine discovery motions or bills of particulars, assisting attorneys in the screening of files, etc.). With a very small investment, paralegals could have been hired to help us do this work, thus freeing up additional time for trial preparation.

One senior attorney so wished to avoid ever having to worry about trial preparation that he requested reassignment to Judge M's courtroom, ex- plaining that Judge M did not allow trials in his courtroom and it would therefore prove to be an especially easy assignment. In fact, he was right. Judge M once went longer than a year without ever having even a single




trial, even though he processed hundreds and hundreds of cases in his courtroom during that same period.

The fact that judges were often lazy6 and wished to avoid trials initially greatly surprised me, especially when I saw courtroom after courtroom sit- ting idle during criminal trial terms. If asked why plea bargaining was necessary, most judges and attorneys would tell you that the system would break down if defendants started insisting on trials. Yet, during criminal trial weeks, judges spent most of their time in chambers while their courtrooms sat empty.

In some courtrooms, attorneys who tried occasionally to bring a case to trial would be punished for doing so. In one judge's court, if threats of draconian sentences (this judge liked to use the word "draconian" to describe his sentences) did not get an attorney to talk his or her client into accepting a plea bargain, the attorney's supervisors would be called into chambers and "advised" to get their assistants to work out a deal. Having one's boss called on the carpet by a politically powerful judge was an embarrassment and an effective control mechanism.

By threatening outrageous sentences and going over the heads of assistant public defenders and assistant district attorneys, this judge invariably induced even that small minority of defendants who truly did not wish to bargain, or otherwise plead guilty, to give up their "right" to a jury trial. Finally, however, after going for more than a year without a single criminal trial, this judge encountered a defendant who refused to be intimidated and steadfastly insisted on a trial. The defendant lost his case, and when the smoke had cleared, he received a 30-year sentence, one so harsh (though perfectly legal) for the crimes committed that attorneys reacted with stunned disbelief on hearing about it. It was the talk of the courthouse for days. Even officials from other counties heard about it. That was the last time that any defense attorney dared to have a trial before that judge for a long, long time.

It wasn't just this judge who would find ways of expressing displeasure when trials caused inconvenience. My first major felony trial was assigned to another judge's courtroom. This judge wanted me to "request" a defense continuance so that the trial would be postponed so he would not miss any of his music lessons. I refused, since to continue the case (in which I be- lieved there was reasonable doubt about my client's guilt) would result in my client waiting for nearly two additional months in jail for his day in court. The judge angrily "allowed" my client to have his jury trial, but was so openly hostile to the defendant and to me throughout the trial that the

6. My findings that judges are often lazy is not unique. See, e.g., Malcolm Feeley, The Process Is the Punishment 196 (New York: Russell Sage Foundation, 1979), in which Feeley notes that many "prosecutors, public defenders, and some of the more candid judges" expressed the view that "judges are basically lazy people" who seek to avoid "the hard work of presiding over a trial."



The Impropriety of Plea Agreements 121

court stenographer began to cry because of his outbursts. A newspaper re- porter, who regularly covered the courthouse and who watched the proceed- ings, told me afterward that it was the worst case of a judge abusing an attorney and a defendant that he had ever witnessed in his professional life. Of course, my client was convicted. (I appealed the case and my client was able to get another trial. He ultimately wound up pleading guilty in exchange for time served.7)

Lawyers and judges weren't the only ones who sought to avoid work by plea bargaining more cases than they needed to. Police officers expressed displeasure at having to come to court to testify at trials. Officers seemed to take little interest in their cases once they sent them to the district attorney's office. When I first became a criminal lawyer, I thought prosecutors with whom I would deal would be getting pressure from police officers not to work out deals. I was surprised to lear (first as a defense lawyer and later on as a prosecutor) that the opposite was generally true. Officers usually had no interest in the cases that were "closed by arrest," and didn't like coming to court (often during times other than their official shifts) to testify.

No discussion of public defenders' motivations would be complete without an analysis of alienation. Rather than seeing their jobs as a calling, most public defenders in my office, like many other American workers, simply viewed their job as work and sought to accomplish their assigned tasks with as little pain and as much dignity as possible. Nearly all members of my office saw their positions as "doing time" before moving on to bigger and better things.

Part of "doing time" was having to put up with the constant stress and abuse heaped on us by ill-tempered and antisocial clients, whose sole audi- ence for their angry outbursts against "the system" was their public defenders, whom they often considered to be incompetent, hired cronies of the state.

One such client was Joseph Miller, a violent, career criminal who had been arrested repeatedly for severely assaulting people for no apparent rea- son. Miller hated human beings in general, and public defenders in particular, because they apparently could not keep him from being locked up time and time again. Nevertheless, we public defenders were obliged to represent him since he could not afford a private lawyer.

Soon after his arrest, Miller wrote my office a letter stating that he didn't want any of us "mother-fucking pieces of shit" to represent him. He further stated that since he couldn't afford a private lawyer, he would have

7. For a discussion of judges' attitudes toward plea bargaining, see Heumann, Plea Bar- gaining ch. 6. Heumann found that new judges quickly learn of and adapt to the extensive use of plea bargaining. They soon realize that the practice reduces their work, reduces the likeli- hood of appeals (and consequent embarrassment), and helps them "move" their business. In fact, Heumann noted that judges come to like plea bargaining so much that many say they would continue the practice even if smaller caseloads made it "unnecessary."




to settle for us but was very angry about it. He also threatened physical harm to various members of my office. These threats caused us some concern, since we knew Miller was so violent that he once had tried to choke to death a state highway patrol officer. (During the choking, the officer's part- ner, in a vain attempt to stop the attack, discharged all his service revolver's bullets into the ground near Miller's head. Miller ignored the bullets and only stopped his attack when the officer beat him over the head repeatedly with his now empty revolver.)

This was the sort of individual we public defenders were expected to represent to the best of our abilities. This was the sort of individual who caused us to become cynical about our role as "liberty's last champion" (the logo on our office's baseball team shirts) and who tended to alienate us from our work. This was the sort of individual who made us love plea bargaining.

Plea bargaining unfortunately plays right into the hands of alienated public defenders because it legitimizes their work avoidance. It makes cases "go away," taking with them some of the stress, work, combat, and (very important) the client-whose "companionship" one often wishes to mini- mize and whose guilt one often believes (correctly or incorrectly) to be so obvious. (Ironically, as stressful as the prolonged company of some defendants can be, trials are often not as stressful as "selling" plea bargains to reluctant clients. As I discuss later, few Washington County defense attorneys have the opportunity to come to this realization.)

In sum, it has been my experience that judges, lawyers, and even police officers often love plea bargaining. They love it not because it prevents the breakdown of the criminal justice system but because it helps them avoid work and stress.

WORKGROUP PATHOLOGIES

Individual laziness and coercive tendencies on the part of certain courthouse officials are cause for grave concern, but what is truly worrisome is that these individual traits can so easily turn into workgroup norms.8

Although there were many attorneys in the areas where I practiced law, the number who regularly practiced in criminal court was quite small. In effect, this group constituted a bar within a bar. Prosecutors and defense counsel got to know each other quite well, saw each other frequently, and developed bonds of mutual loyalty. Attorneys and judges who worked to-

8. For an extended discussion, see James Eisenstein & Herbert Jacob, Felony Justice: An Organizational Analysis of Criminal Courts (Boston: Little, Brown, 1977). Eisenstein and Jacob point out that criminal defendants do not really deal with individuals (such as their lawyer) but rather with workgroups consisting of prosecutors, defense lawyers, judges, and others who work together toward shared goals of disposing of cases, maintaining the cohesion of the workgroup, and lowering the group's stress and uncertainty.



The ImpLopriety of Plea Agreements 123

gether also developed close relationships. Under these circumstances, it is naive to think that a public defender or a private attorney would be an aggressive adversary on behalf of a nonpaying or poorly paying client. The price of such a strategy-a professional life of conflict and unpopularity- was simply too high to make it worthwhile. Defense attorneys universally collected their fees up front,9 public defenders were paid a set salary, and salaried prosecutors and judges all got paid no differently whether a case was settled in a 60-second negotiation or disposed of by a trial. So, unlike the medical specialist, who is paid handsomely for the stress and work of an intense surgical procedure, and who is rewarded and admired by a professional peer group as well, the attorney pushing for trials received no finan- cial or professional rewards of any kind. Indeed, the opposite was true. Defense attorneys all knew that if they brought too many cases to trial, they would be seen as either unreasonable and worthy of professional ostracism or as a fool who was too weak to achieve "client control."10

Many attorneys I knew became masters of the fine art of controlling their clients. Some liked to engage in "chair therapy," in which a client who insists on a trial is made to sit in the hall of the courthouse (or in the courthouse lockup) for days on end during courthouse trial terms, waiting for his day in court, until he accepts a deal. Some (usually unintentionally) resorted to "good cop/bad cop" routines, in which a resistant defendant is subjected to the screams of his or her attorney, followed by the lawyer's associate, who tries to calmly help the accused to see the light. Usually, however, defense attorneys, aware that incredible trial penalties were at- tached to the "right" to a jury trial, only needed to tell a defendant of the unconscionable sentences that had been meted out to others who dared to create work for a judge.1

As loyal members of the workgroup team, prosecutors did not take advantage of the predicament in which judges put defendants but instead con- sistently offered a carrot to contrast with the judge's brutal stick. They knew that they, too, would lose professional face were they to force trials by not offering generous deals. It was this interplay between carrot and stick that almost invariably coerced the small but significant minority of defendants who were attempting to hold out for a trial.'2

9. No defense attorney in his or her right mind would ever wait for disposition of a case to attempt to collect a fee. In fact, judges will often grant a continuance on the basis of a defense attorney's vague, in-court reference to "Rule 1" (code for "I haven't been paid yet").

10. Not having "client control" is the ultimate loss of face. The very fact that such a term exists and is commonly used is another indication of the coercive pressures many attorneys placed on their clients.

11. It is virtually futile to argue an excessive sentence on appeal. Appellate courts in my jurisdiction hated such arguments and were loath to disturb a trial court's sentence.

12. See also Conrad G. Brunk, "The Problem of Voluntariness and Coercion in the Negotiated Plea," 13 Law & Soc'y Rev. 527 (1979), who suggests that a genuine lack of coercion requires the presence of real choice and that having "the book thrown at you" for electing a trial is hardly conducive to real choice.




My observations regarding the corrupting influence of the workgroup to a large degree parallel those made years ago by another former criminal courtroom regular. Abraham Blumberg, a criminal defense attorney turned sociologist, argued in a 1967 article against the myth, still accepted by many today, that attorneys see their role as an adversary to the opposing side. After years of criminal legal practice, he concluded that such assumptions "do not square with social realities"; instead, "the accused's lawyer has far greater professional, economic, intellectual and other ties to various ele- ments of the court system than he does to his own client." In Blumberg's view (even more caustic than my own), the defense attorney is merely a "double agent," deceiving his client into trusting in his skill, while all he wants is to collect a fee and for his client to plead guilty.13

In one of the pettier instances of fee-grabbing workgroup deception I witnessed, a defense attorney telephoned the prosecutor assigned to a case to make sure that a "sweet deal" was going to be offered before he agreed to represent a particular client. Only after being assured that no trial was likely and that the case would generate good pay for almost no work did he tell his prospective client that he would accept the case.

Many of the criminal defendants I saw seemed to intuitively sense the corrupting power of the workgroup and the collusion that often takes place within it. I have witnessed countless defendants who claimed they were being "sold out" by their lawyers. Many asked the court, almost always unsuc- cessfully, to appoint new counsel. Some later filed collateral attacks, alleging coercion, to the entry of their guilty pleas. These allegations were almost always found to be unsubstantiated. Like mental institution inmates yelling "conspiracy," prison inmates yelling "conspiracy" were never taken credibly, even though the similarities of their tales of woe should have made most people wonder.14

In my opinion, a criminal defendant has only one real guarantee of achieving some degree of adversariness in his or her defense. This guarantee comes from the very thing that plea bargaining is designed to supplant-the jury trial. Having engaged in dozens of jury trials, I eventually learned that the winner-take-all nature of these ordeals forced workgroup players to be-

13. Abraham S. Blumberg, "The Practice of Law as a Confidence Game: Organizational Cooptation of a Profession," 1 Law & Soc'y Rev. 15, 18 (1967).

14. What I find surprising in my review of the academic literature is the lack of interest among researchers in exploring coercion from defendants' viewpoints. One English study found that defendants often believe themselves to have been "ordered," "forced," or even "terrorized" into pleading guilty. See John Baldwin & Michael McConville, "Plea Bargaining and Plea Negotiation in England," 13 Law & Soc'y Rev. 287, 296 (1979). Such studies are apparently rare in the United States, although one exception was Jonathan Casper's American Criminal Justice: The Defendant's Perspective (Englewood Cliffs, N.J.: Prentice-Hall, 1972) ("Casper, American Criminal Justice"). Casper noted that a defendant does not see the decision about the punishment received as being based on "abstract notions of morality," but rather as the result of a game in which courthouse actors use the same "hypocritical and manipulative ways" that the defendants themselves use in dealing with people. Id. at 80-81.




come true professional adversaries. Perhaps this is why trials are so disliked. The constitutional interests of an accused are best served when the system works as it was designed: the formal presentation of evidence before a panel of 12 individuals who have absolutely nothing to do with courthouse machi- nations. In such a contest, attorneys feel that they have no choice but to go all out, and a real clash of competing interests can be presented to unjaded, lay fact-finders. But in much of present-day America, this apparently is not meant to be.

THE PROSECUTOR AS JUDGE, JURY, AND SENTENCER

After spending three years as a public defender, I began to tire of the abuse heaped on me by clients who resented not having a private (or "real") lawyer and the stress produced by judges who punished lawyers and their clients when they asked for a trial. I wanted some type of change, and when a job as an assistant district attorney opened up in nearby Lincoln County, I applied and was hired.

To my great relief, being a prosecutor was much less stressful than being a public defender had ever been. In fact, no longer having to deal directly with antisocial clients cut my stress level to a small fraction of what it had been. In addition, most of the evidence was now on my side, and I could also decide most things without having to consult with clients or with anyone else. I had always thought that prosecutors' jobs were just as stressful as those of public defender. But to my surprise, I soon learned that this simply was not the case at all. The police, the public, my boss-even victims, for the most part-left me alone to do as I pleased.

I quickly learned that prosecutors in Lincoln County were the real judges when it came to sentencing decisions. By allowing plea bargaining (though it was not accompanied by the coercion employed by the judges in Washington County), Lincoln County judges successfully dumped the bur- dens of sentencing most criminal defendants onto prosecutors. How did prosecutors in Lincoln County handle this sentencing burden? The answer, I soon learned, was "any way they wanted to." There were no official rules that bound me or my fellow prosecutors in the making of plea-bargaining offers. And though some counties here and there do have them, there were no internal office guidelines in Lincoln County either. (The only unwritten rule was to avoid creating bad public relations, either with the press or with the judiciary). Prosecutors, then, had nearly complete discretion in deciding what offers to make to defense counsel.

Unlike judges, who in Lincoln County were required by law to con- sider sentences in light of official guidelines developed by the state legisla- ture, Lincoln County prosecutors merely used such guidelines as general




starting points. If their "gut" told them that the guidelines weren't appropriate, they could ignore them entirely, or else relabel one crime as something else, so that it would fit neatly into the sentence guideline range they de- sired. There were many instances in which prosecutors would decide the appropriate sentence; offer it to defense counsel who then accepted; then search the crimes code for some offense that would produce the "correct" sentence.

This is not to say that prosecutors spent long periods of time agonizing over appropriate sentences. A prosecutor would often work through a pile of cases in machine-gun fashion, making snap decisions as to appropriate punishments in just a few minutes per case.15 These few minutes (perhaps 3 or so for misdemeanors and 10 for serious felonies) included all the time de- voted to (1) examining police reports and all the evidence; (2) reviewing the defendant's prior criminal history; (3) deciding the defendant's fate as to sentencing; and (4) putting the plea offer into a form letter to be sent to defense counsel.

The speed at which assistant district attorneys decide sentences, often involving substantial periods of incarceration, was amazing. But what was also noteworthy was the surprising lack of training we prosecutors received for our sentencing roles.16 Given no official training, new prosecutors (and almost all prosecutors I encountered were relatively "new" in the sense that most saw the district attorney's office as merely a career steppingstone) were forced to go by their instincts or by the instincts of benighted others around them.

There were, in fact, people who were equipped to help the court decide appropriate sentences-presentence investigators who constituted a special- ized unit within the probation office. They would, when asked, carefully prepare sophisticated, lengthy presentence reports on a defendant awaiting sentencing. These reports included detailed background information on the defendant, including childhood experiences, education, familial ties, drug and alcohol dependency, mental health concerns, sentencing recommenda- tions, and other vital information. But these reports were typically prepared only when judges were going to be doing the sentencing. Since prosecutors did most of the real sentencing, this crucial resource was grossly underutilized.

15. See also Lynn Mather, Plea Bargaining or Trial? (Lexington, Mass.: Lexington Books, 1979). Mather notes that "one important consequence of this simultaneous consideration of the guilt and sentencing issues is that information which is only supposed to pertain to one issue may become relevant to the other." Id. at 141.

16. See Sam W. Callan, "An Experience in Justice without Plea Negotiation," 13 Law & Soc'y Rev. 327 (1979). Callan, a jurist, points out that "there are many seminars on sentencing policies for judges. But prosecutors, who actually determine sentencing policies, don't spend much time at seminars, or anywhere else, considering the proper methods of controlling criminals." Id. at 328.



The Imptoptiety of Plea Agreements 127

ADAPTING TO A "HEAVY" TRIAL LOAD

Even though most cases in Lincoln County were disposed of with plea bargains, there were nevertheless an unusually high number of jury trials in the jurisdiction. As mentioned earlier, Lincoln and Washington counties had almost the same volume of cases, but Lincoln County actors in effect processed 11 times more jury trials.17 In fact, except for one small, rural county of only a few thousand inhabitants, Lincoln County-according to the official state statistics-had a higher percentage of its criminal cases disposed of by jury trial than any other county in the state.18

When I first came to Lincoln County and saw all the trials going on, I was shocked. I assumed that this was the real world and my old (nearly trialless) county a bizarre aberration. I soon learned, however, that this new county was the strange one, and my former county was much more represen- tative of the norm. At seminars, other attorneys from around the state would be stunned when members of my office would mention how many criminal trials were taking place in Lincoln County.

In Washington County, trials had been rare and precious events, like Christmas, or one's wedding day, or going off to war. Public defenders and prosecutors typically only stayed in their jobs for two or three years before moving on. They usually spent their first year or longer doing nothing but preliminary hearings. Even when they moved up to the status of "trial attorney," they usually only conducted a few jury trials before leaving their jobs, and therefore found it tempting to avoid fear-inspiring trials by making too many bargains. This fear of trials not only causes attorneys to talk clients into plea bargaining when their clients really want to go to trial but also can negatively affect their ability to negotiate, since they know in their hearts that they fear going to trial.

In Washington County, trials were so infrequent that none of the defense attorneys ever quite got over being afraid when we did one. But in Lincoln County, my awe of the jury trial completely disappeared. By doing many trials, I found they became easy, both for myself and for my office. Doing a jury trial soon became much less stressful than had been the job as a public defender of having to "sell" deals to my reluctant clients. The awe of trials, I came to believe, leads many attorneys to pressure clients into bargains the clients do not want.

One case I handled as a prosecutor in Lincoln County dramatizes how lack of practice can cause a fear of trials. A thief with a rap sheet of petty thefts five pages long came from the big city to Lincoln County and while there was caught prying open a laundromat bill-changing machine. He refused my offer of four months' jail time, fired his local lawyer, and brought

17. See note 4 above. 18. Id.




in his usual lawyer from the big city. The city lawyer also refused my offer (which I had refused to reduce) and claimed he would go to trial. On the day scheduled for the trial, he and I were in the courthouse hallway discussing the case, and he continued to maintain his front that he would go to trial unless I reduced my offer. What he didn't realize was that trials were nothing special in Lincoln County. Rather than arguing with him about the deal, as he expected, I simply and calmly told the bailiff to bring the jury panel into the courtroom for voir dire. The big city lawyer couldn't believe that there was actually going to be a jury trial over the theft of some coins from a machine. When he realized that a trial was actually going to take place, he became visibly frightened and told me he couldn't do a jury trial because he had never done one before. He told me that he had no idea of what to do since jury trials were so rare where he came from. I suggested he had better persuade his client to accept my offer. He quickly approached his client and somehow managed to convince him to do just that.

Not only does practice improve an individual's ability to conduct trials; the development of a routine also strengthens the system's capacity to do them. In Washington County, everyone was so concerned with avoiding trials that defense attorneys would receive 90% percent of their stress from the 15% or so of their clients who really did not wish to accept a plea bargain. These were the people who wanted a trial no matter what was offered them and who were the focus of all the coercive forces brought to bear by the Washington County courthouse work teams.

In Lincoln County, by contrast, the small group of defendants wanting trials was simply allowed to have their trials. When I first moved to Lincoln County, I asked people in the courthouse why there were so many trials there. The answer was that Lincoln County judges never punished anyone for having a trial. I found this to be the case. Rather than coercing the small group of defendants who really didn't want to accept a bargain or plead guilty-or attempting to coerce their lawyers into coercing them-Lincoln County judges (though they might attempt some mild persuasion here and there) simply made peace with the idea of having many more jury trials.

The system in Lincoln County adapted to this reality. Each public defender and each prosecutor typically would do multiple trials during a two- week trial term, while those not in trial on any particular day would take turns in "plea court." There, a single judge-all day long, day after day- would process the great bulk of cases that were guilty pleas. All other criminal court judges were thereby freed to conduct trials.

Unlike Washington County courtrooms, which sat mostly empty during criminal trial terms,19 Lincoln County courtrooms and judges were busy

19. For a suggestion of how much excess capacity can exist in courts, see Peter W. Nardulli, "The Caseload Controversy and the Study of Criminal Courts," 70 J. Crim. L. & Criminology 89, 96-97 (1979). This study showed that Chicago judges spent only two to three



The Imptopriety of Plea Agreements 129

with trials. In fact, even though Lincoln County judges were handling many more jury trials than their Washington County counterparts, they routinely reported to the district attorney's office administrator that they could handle many more trials. In fact, judges constantly encouraged members of my office to bring trials to them.

Despite its willingness to conduct jury trials, Lincoln County was nevertheless only doing a fraction of the trials it could have conducted had it instituted a few reforms. By hiring only a few more judges, prosecutors, and other personnel, the number of criminal trial weeks could easily have been increased from 14 or so per year to double that number. As was the case in Washington County, much of the work on criminal cases got done in the relatively short periods that constituted criminal trial terms, and Lincoln County courthouse actors had plenty of time on their hands between these sessions.

WHY THE DIFFERENCES?

A reader might wonder why Washington County and Lincoln County were so different. Were courthouse actors in Lincoln County intrinsically more ethical people? Despite the harsh tone of some of my accounts, I am convinced that they were not. Like almost everyone involved in the admin- istration of criminal justice, I found that I had been sincerely converted to plea bargaining when I worked in Washington County. But I was reshaped into a trial attorney when I moved to Lincoln County.

I came to realize that the legal culture greatly shaped individual behav- ior in the two counties. Lincoln County seemed to be stuck back in time when jury trials were much more plentiful. (Indeed, I had heard from older lawyers in Washington County that trials had also been much more com- mon there about 15 years or so before my arrival.) Lincoln County judges (not all of them-just the opinion leaders) had continued to set a pro-trial tone for the courthouse workgroups. Most prosecutors and most public defenders were quite young and only remained in their positions for a short time. They naturally looked to judges as leaders of the workgroups, since judges were older, had higher prestige, and more experience. In Lincoln County this meant that most prosecutors and most public defenders had a trial ethic because they took their cues from judges who had one.

Not everyone took this pro-trial stance, of course. A few members of the district attorney's office complained that there were too many trials in Lincoln County because judges "did not punish" defendants who insisted on

hours per day on the bench and did not do much work thereafter. The 16 courtrooms looked at over a two-year period produced an average of only one disposition per day, even though 70% of the dispositions were dismissals or guilty pleas.




trials. And at least one judge seemed very annoyed whenever anyone brought a trial to his courtroom. But he was not perceived as an opinion leader in the courthouse.

The strong judges-the opinion leaders we all looked up to-still encouraged trials. Just as a few strong members of a jury can have a powerful effect on the rest, so did a few strong judges appear to powerfully affect an entire courthouse culture.

In Washington County, by contrast, the judges set no pro-trial tone in the courthouse. At best, some of the judges were neutral. But the most in- fluential judges demonstrated a strong antitrial philosophy by handing out very harsh sentences to those convicted pursuant to trial. This was the county where one judge went for over a year without a single criminal trial, despite having processed hundreds of guilty pleas. It was a county where the plea-bargaining culture was deeply entrenched and where adaptations con- sistent with that culture more heavily developed.20

OTHER NEGATIVE ASPECTS OF PLEA BARGAINING

Although quality of defense counsel, in my opinion, never seemed to make much difference during trials (the witnesses, after all, do most of the talking), defense counsel quality seemed to make an enormous difference in plea bargaining. Some attorneys were skillful at power-coercive brinkman- ship. Others were completely incompetent at negotiations. One defense attorney in particular was so bad that he would instantly agree to anything that we prosecutors would offer him. We felt so sorry for his clients that some of us adopted a policy of giving him the same sort of offers up front that we eventually would have given a competent negotiator after some discussion. But not all prosecutors were quite so liberal.

This defense attorney, like some others I dealt with as a prosecutor, was a poor negotiator. Although civility and intelligence are usually assets in most professions, plea bargaining tends to exalt the negative traits of human character. Some of the most effective negotiators were arrogant, aggressive, unreasonable, and even ill informed as to the law. These attorney traits

20. Some may wonder whether elected judges wouldn't run a risk of being labeled soft on crime were they to fail to hand out harsh sentences after trials. However, political consid- erations-at least in my jurisdictions-did not seem to play much of a role at sentencing. First, most cases attracted little or no press coverage. Second, judges in my state (as in many states) were elected for extremely long terms. Third, once elected, judges (like members of Congress) were almost always retained election after election. Fourth, few voters seemed to care about or even know the names of their county judges and relied on party loyalties to decide how to vote. (Once I told a close friend not to vote for a particular judge who was running for reelection. After a discussion, my friend became convinced that this judge should not be voted for. On election day, however, my friend (a highly educated person) was con- fronted with a list of names and couldn't remember who not to vote for. He wound up guess- ing but guessed wrong.)



The Inpropriety of Plea Agreements 131

formed part of the calculus that prosecutors used in deciding what to offer. Fortunately (for the workgroup) most attorneys chose to be reasonably pleasant, but the more crude, hot tempered, and unreasonable an attorney was, the more many felt obliged to appease him or her with a better deal. Plea bargaining thus made the practice of criminal law one in which legal knowledge and civility took a back seat. One must question a system that exalts such negative characteristics and that places so much importance on defendants' skill or luck in choosing attorneys with the right mix of person- ality quirks rather than those with knowledge of rights and of the law.

This is not to say that adversariness in and of itself is the problem. Trials, in which hostility is checked by a fair and neutral magistrate and by rules of evidence and procedure, usually create environments conducive to constructive adversariness. Plea bargaining, on the other hand, takes place in secret where no rules of decorum prevail. Distasteful and irrational adversariness, requiring appeasement, can more readily develop.

That plea bargaining has little to do with practicing a learned profession can be illustrated in a different way through the story of someone I shall refer to as Bill White, who was the office manager of the Lincoln County District Attorney's Office. Although he never attended a day of law school, White was offering plea bargains to defense attorneys just three months into his job. In court, judges would sometimes ask, "Who made that deal?" If a defense attorney answered, "Bill White," it was accepted by all parties as completely legitimate. Ironically, Bill White was one of the most competent people I have ever known and an excellent plea bargainer. The fact that he lacked any legal education or a license to practice law was of little practical consequence. I am convinced that the average car salesman or real estate agent with a few days of instruction could become an adequate plea bargainer. This is so because the institution of plea bargaining has turned our criminal courts into centers of hustling, more worthy of an open- air market than a courthouse, and far distanced from the ideal versions of the rule or practice of law.

CONVICTING THE INNOCENT

In the final analysis, perhaps the biggest problem I have with plea bargaining is the fear that some innocent people might be pleading guilty, especially in places like Washington County. Even more frightening is what the future might hold for basic rights as plea bargaining continues to become more entrenched as an institution.

If I were innocent of a crime but appeared to be guilty, I would hate to have to decide whether to accept probation for something that I did not do, or else expose myself to the risk of a draconian jail sentence if I went to trial and somehow lost. I would be especially nervous at such a decision if I were




black, poor, and had a public defender who, anticipating a quick resolution of the case by a plea bargain, introduced him or herself to me minutes before my time in court21 and who obviously was ill prepared to go to trial. (One public defender I knew in Washington County was famous for prepar- ing his trials in the elevator on the way to court.)

Criminally accused but innocent people are more likely to plead guilty as sentencing offers made to them become less and less painful relative to what they are threatened with should some jury convict them.22 Our system is designed to give some protection against the conviction of innocent people by requiring proof beyond a reasonable doubt. But arresting a person only requires "probable cause" (a much lower standard), and accepting a guilty plea generally only requires the low evidentiary standard of "factual basis." Because of plea bargaining, "factual basis" has almost universally re- placed "beyond a reasonable doubt" as the standard for obtaining criminal convictions in the United States.

The danger of convicting an innocent person pursuant to a plea bargain, then, is real. For reasons I have never fully understood, many prosecutors are loath to risk losing a case at trial. They will therefore resort to offering incredibly lenient punishments to assure the entry of guilty pleas in those weak cases that probably would and should be lost at trials (in which the reasonable doubt standard would necessarily come into play). For in- stance, I have witnessed cases in which the charge of rape was ultimately reduced to harassment; armed robbery that should have called for a five-year sentence reduced to a sentence of a few months; and countless cases calling for some jail time reduced to probationary cases. In such situations, no good is done. The guilty get off so easily that they can only lose respect for the system. And the few innocent here and there (those the system was origi- nally designed to protect but probably no longer does) are stigmatized by a criminal conviction and must feel constitutionally abandoned. One might say that the innocent could insist on their day in court. But with their own lawyer forcefully urging them to accept an offer, and given the typically outrageous generosity of the offer coupled with the typically outrageous pen-

21. Apparently little has changed over the past few decades. See Casper, American Crim- inal Justice 106, who reports that "the typical defendant [in the early 1970s] reported that he spent a total of five to ten minutes conferring with his [public defender], usually in rapid, hushed conversations in the courthouse."

22. This observation was made as well by another former prosecutor-D. Heilbroner, Rough Justice: Days and Nights of a Young D.A. 243 (New York: Pantheon Books, 1990). The author, a former Manhattan prosecutor, notes that "the threat of heavy sentences and the promise of one-time lenient offers must have coerced some innocent men and women into pleading guilty." To my disappointment, however, Heilbroner goes on to embrace the conven- tional wisdom that-at least in his highly urban court-such sacrifices of the innocent were necessary "since our deals helped keep the criminal justice system from falling apart." Id. at 244. Since I have no experience in highly urban courts, I cannot really comment on whether he is correct.




alty if they go to trial and lose,23 only the most courageous among them would refuse this safe but dehumanizing way out. As Albert Alschuler wrote, "to turn a substantial portion of a defendant's punishment on a single tactical decision is ... to assign to the defendant a responsibility that he cannot fairly be required to bear."24

CONCLUSION

In sum, plea bargaining fosters all the wrong values among courthouse actors and almost certainly damages the integrity of our criminal courts. Unless my experiences are atypical, plea bargaining invites work avoidance, coercion, workgroup cooptation, and lack of proper sentencing standards. It exalts hyperaggressiveness and diminishes the importance of legal knowledge. Worst of all, it betrays the truly innocent on the altar of supposed practicality.

It may be possible to abolish plea bargaining almost entirely in many jurisdictions (especially those similar in size to the ones in which I practiced law).25 But even if this is not true, my sense is that plea bargaining can and should be used much less universally than it now is. The danger is that plea bargaining may become an end unto itself, rather than an unsatisfactory means of keeping the judicial system afloat. It is a siren song that seduces courthouse actors into unnecessary dependency, and one that ultimately leads to injustice.

23. For an article discussing the existence of a substantial trial penalty, see David Brer- eton & Jonathan Casper, "Does It Pay to Plead Guilty?" 16 Law & Soc'y Rev. 45 (1981-82). Analyzing thousands of cases in multidimensional contingency tables, the authors found a substantial "trial tax."

24. Albert W. Alschuler, "The Changing Plea Bargaining Debate," 69 Cal. L. Rev. 652, 668 (1981).

25. Some studies (though performed in unusual jurisdictions or of rather weak design) suggest that in some areas plea bargaining could be abolished; see, e.g., Michael L. Rubinstein & Teresa J. White, "Alaska's Ban on Plea Bargaining," 13 Law & Soc'y Rev. 367 (1979); and Bruce Weninger, "The Abolition of Plea Bargaining: A Case Study of El Paso County, Texas," 35 UCLA L. Rev. 265 (1987). Other studies suggest quite the opposite (at least as to large urban areas); see, e.g., Milton Heumann & Colin Loftin, "Mandatory Sentencing and the Abolition of Plea Bargaining: The Michigan Felony Firearm Statute," 13 Law & Soc'y Rev. 393 (1979), which reports that the Detroit District Attorney's attempt to abolish plea bargaining in felony cases involving guns failed because other practices (such as bench trials cleverly done and creative sentencing practices) developed which effectively simulated plea bargains. My own view is that in those midsized counties where I practiced law, plea bargaining certainly could have been and should have been greatly reduced, and perhaps could have been even nearly abolished, though this would have required a few reforms, some collective will, and some normative leadership.



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The Impropriety of Plea Agreements: A Tale of Two Counties