The People’s Interest Or What?

Via Doug Berman’s Sentencing Law and Policy, Southern District of West Virginia Judge Joseph Goodwin took a very strong, very controversial stand against plea bargains in United States v. Stevenson.

On June 26, 2017, I rejected the proffered plea agreement in United States v. Charles York Walker, Jr. after determining that it was not in the public interest.  On October 10, 2017, I rejected the proffered plea agreement in United States v. Antoine Dericus Wilmore after determining that it also was not in the public interest.  In both opinions, I stated that it is the court’s function to prevent the transfer of criminal adjudications from the public arena to the prosecutor’s office for the purpose of expediency at the price of confidence in and effectiveness of the criminal justice system.

I have further reflected upon the near-total substitution of plea bargaining for the system of justice created by our nation’s Founders, and I FIND that I should give great weight to the people’s interest in participating in their criminal justice system when considering whether to accept or reject a proffered plea bargain in a particular case.  I FIND that the scales of justice tip in favor of rejecting plea bargains unless I am presented with a counterbalance of case-specific factors sufficiently compelling to overcome the people’s interest in participating in the criminal justice system.

Therefore, in each case, I will consider the case-specific factors presented to me and weigh those competing factors against the people’s participatory interest and then determine whether to accept or reject the plea bargain. Because I FIND that the presented justifications for the bargain in this case are insufficient to balance the people’s interest in participating in the criminal justice system, I REJECT the proffered plea agreement.

As Doug reacted, “Wowsa! #morejurytrials?” And, indeed, this was very much the subject of discussion at the Cato “Criminal Justice at the Crossroads” conference in October, 2017. Cato’s crim law honcho Clark Neily argues vehemently for the return of the criminal trial. I agree with him, but at what price?

Judge Goodwin’s rationale is that plea bargains, essentially dictated by the government through its charging decisions, mandatory minimums and the Sentencing Guidelines, deny “the people’s interest in participating in the criminal justice system.” To be blunt, I couldn’t care less about the people’s participation. This isn’t a game for the “people’s” amusement.

There are two concerns at stake in a criminal prosecution, the authoritarian interest of the government, which could be characterized as “the people” is one assumes that government reflects popular will, The other concern is that of the defendant, the person accused, because he’s the guy who will suffer the penalty should the prosecution make its case.

Does that mean the prosecution should be compelled to “make its case”? Sure. Why not? Well, there is a very real, very hard, very cold answer to “why not.” Because it will likely cost the defendant years, maybe decades, in prison.

The problem is that we’ve created a Rube Goldberg machine of fixes, each of which takes its toll on the system. One can argue the virtues of each fix standing alone, but the defendant in the trenches (and his lawyer) faces the impact of the totality of each bit of brilliance.

Trials are good? You bet they are. But most defendants will lose at trial. On the one hand, most are guilty, even if not as guilty as the government says. On the other, few defendants are well-positioned to go to trial even if they’re completely innocent. This is the sort of realism that criminal defense lawyers face but non-lawyers just can’t accept.

The government can wrap its case around upstanding federal agents, trained to testify so that they can pretty much wriggle out of any lie, or just fudge the edges as needed. They can bring in the heinous conduct of others under conspiracy, making the kid who runs for coffee at the barbershop come off as culpable as Tony Montana. So what if the evidence is mostly empty rhetoric and malarkey? It works. It works really well with you, dear jurors. We know this because you convict based on it all the time.

But what about the defendant? Doesn’t he deserve the chance to present evidence, to testify, to defend himself? Absolutely. Except the defendant will make a terrible witness. He can barely get his name right, will be goaded into outrage within seconds, will say the absolute stupidest thing possible no matter how many times you explain to him why he shouldn’t. Then there’s his priors, the 32 petty drug busts he did because he had to eat, but which will be used to conclusively prove he put his self-interest above society and would rape babies if he could.

Try a case and then tell me how this looks from your perch atop the unicorn prancing on rainbows. Try a dozen. Try a hundred. It all seems so sanitary from a distance, but it’s a royal mess up close. Defendants are rarely cut out for trial. And they can’t take the pressure.

But then, their plea deal goes from 121 months to 187 after trial. Or 292. Or forever. There is something worse than an innocent defendant spending ten years in prison, and that’s an innocent defendant spending his life in prison. But Judge Goodwin is worried about the public’s interest?

If defendants could go to trial and get the same sentence as was offered in the plea bargain, then it wouldn’t matter. But that can’t be, since there would be no incentive to cop a plea if you could take a shot at acquittal and pay no price for it. But if the price was only modest, say the plea term plus another 10% as the trial tax, defendants would take the chance. They would still lose, for the most part, and still bite the big one as witnesses, but the cost of trying wouldn’t be absurdly high.

If Judge Goodwin wants to protect the public’s interest in participating in the criminal justice system, that’s great. But fix the back end for defendants first, so they aren’t paying the price. The cost of public participation shouldn’t be the defendant’s life. Wowsa.

11 thoughts on “The People’s Interest Or What?

  1. Richard Kopf


    Your readers might wish to read or reread my post on Simple Justice entitled Kopf: A Contrarian’s View Of The Vanishing Federal Criminal Jury Trial (Dec 27, 2017). In that post, I suggest that as a normative matter the hand-wringing over the absence of criminal jury trials in the federal courts is both overwrought and poorly thought out.

    Moreover, in 99 out of 100 cases, judges have no business rejecting plea agreements* simply because they want to force a jury trial so as to promote the public interest (whatever the hell that means). The poor schmuck who stands accused should be the center of the judge’s focus rather than some silly abstraction fabricated by a geezer like me who has a love affair with a bygone era. If the accused wants to waive a jury trial and plead guilty, in all but the most extraordinary cases, the judge ought to leave that decision to the defendant and his counsel.

    All the best.


    * Rule 11(c)(1)(C) plea agreements (where the parties pick the sentence or the sentencing factors that a judge must follow) are a minor exception. A judge should reject those when fact bargaining is evident and the purpose of the Guidelines is subverted.

    1. SHG Post author

      I suspect the readers here already have, since they much prefer reading you to me. But this is a complicated dance, and Judge Goodwin’s decision will be applauded by too many people who haven’t given it nearly enough serious thought.

  2. Clark Neily

    Jury trials are both central and essential to the administration of justice in America. At least they were meant to be—it is no accident that the bill of rights devotes more ink to the subject of juries than any other topic. And it is no accident that the government has done its level best to discourage people from exercising their constitutional right to a criminal jury trial through a combination of increasingly complex procedures, asymmetrical resource allocation between defense and prosecution, and the whole suite of extraordinarily coercive tools, including but not limited to grossly disproportionate mandatory minimums that serve roughly the same function in our criminal justice system that the rack and other instruments of torture served the Spanish Inquisition.

    Plea bargaining was unknown at the founding, but now 95% or more of criminal convictions are obtained through guilty pleas. Why on earth would so few people choose to exercise one of the most hallowed, hard-won, and uniquely American rights in the Constitution? As a thought exercise, think how you might go about it if you were given the assignement of discouraging as many defendants as possible from exercising their right to a jury trial. You could scarcely do better than we have already done with our own system.

    Among other things, juries help provide transparency, accountability, and feedback, all of which are almost entirely absent from our criminal justice system today. And again, that is not remotely an accident. Simply put, the fewer jury trials there are, the easier the jobs and lives of those who run our criminal justice system: prosecutors.

    As a working criminal defense attorney, Scott may properly focus exclusively on the best interests of his clients. But the rest of us have a civic duty to consider the integrity of the overall system as well—and perhaps even prioritize it.

    1. SHG Post author

      Why on earth would so few people choose to exercise one of the most hallowed, hard-won, and uniquely American rights in the Constitution?

      There’s a remarkably easy answer to this question: because under the existing trial regime, they’re going to be slaughtered, and get sentenced to life plus cancer. Most defts don’t want to die in prison, especially the innocent ones.

      But the rest of us have a civic duty to consider the integrity of the overall system as well—and perhaps even prioritize it.

      As a theoretical construct, this sounds fine. Let’s try cases. Let’s let juries decide. Let the chips fall where they may, but openly, transparently and with all the rights the Constitution provides. And we will pat ourselves on the back about all those nice people being convicted and sentenced forever and ever. And ever. Because our civic duty has prevailed at the expense of their lives.

      Like you, I would love a system where government was put on trial, put to their proof. But that’s not the system we have in any respect, and my love of trials can’t come at expense of the accused.

  3. wilbur

    Whether civil or criminal, if you want more trials, you need more judges, bailiffs, clerks etc., whose presence requires money. Not to mention the cost in time and money to jurors.

    So who wants their taxes raised? A little? A lot? Show of hands?

    Is the public interest served by everyone being called to jury duty once a year? Maybe it is, and the general public would love annual jury duty.

    And let’s not forget those unintended consequences.

  4. Ross

    I didn’t see it in the links, but is it even possible for Federal judges to currently impose a sentence of the plea offer plus 10% after trial, or do the sentencing guidelines prevail? This is the sort of thing I like to include in letters to my semi-competent Members of Congress when sending comments on potential legislation, not that it does any good.

    1. SHG Post author

      Some law schools have semester long courses in sentencing law. You just have to make it through the first two years before you can get to it. The short answer is yes and no. The long answer will require law school tuition.

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