Amdt5.4.8.2.1.1.2 Plea Bargaining

Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

A defendant may plead guilty instead of insisting that the prosecution prove him guilty. Often the defendant does so as part of a plea bargain with the prosecution, where the defendant is guaranteed a light sentence or is allowed to plead to a lesser offense. 1 Although the government may not structure its system so as to coerce a guilty plea, 2 a guilty plea that is entered voluntarily, knowingly, and understandingly, even to obtain an advantage, is sufficient to overcome constitutional objections. 3 However, some constitutional challenges may survive a plea if they go to "'the very power of the State' to prosecute the defendant."  4 The guilty plea and the often concomitant plea bargain are important and necessary components of the criminal justice system, 5 and it is permissible for a prosecutor during such plea bargains to require a defendant to forgo his right to a trial in return for escaping additional charges that are likely upon conviction to result in a more severe penalty. 6 But the prosecutor does deny due process if he penalizes the assertion of a right or privilege by the defendant by charging more severely or recommending a longer sentence. 7

In accepting a guilty plea, the court must inquire whether the defendant is pleading voluntarily, knowingly, and understandingly, 8 and the adjudicative element inherent in accepting a plea of guilty must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that, when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.9

Footnotes

  1.  Jump to essay-1 There are a number of other reasons why a defendant may be willing to plead guilty. There may be overwhelming evidence against him or his sentence after trial will be more severe than if he pleads guilty.
  2.  Jump to essay-2United States v. Jackson, 390 U.S. 570 (1968). Release-dismissal agreements, pursuant to which the prosecution agrees to dismiss criminal charges in exchange for the defendant's agreement to release his right to file a civil action for alleged police or prosecutorial misconduct, are not per se invalid. Town of Newton v. Rumery, 480 U.S. 386, 394 (1987).
  3.  Jump to essay-3See Tollett v. Henderson, 411 U.S. 258, 265–66 (1973); North Carolina v. Alford, 400 U.S. 25, 38 (1970); Parker v. North Carolina, 397 U.S. 790, 795 (1970); McMann v. Richardson, 397 U.S. 759, 771 (1970); Brady v. United States, 397 U.S. 742, 758 (1970).
  4.  Jump to essay-4Class v. United States, 138 S. Ct. 798, 809 (2018) (quoting Blackledge v. Perry, 417 U.S. 21, 30 (1974)) (holding guilty plea did not bar defendant "from challenging the constitutionality of the statute of conviction on direct appeal"). See also Menna v. New York, 423 U.S. 61, 62 n.2 (1975) (per curiam) (holding guilty plea did not waive defendant's claim on direct appeal that double jeopardy prohibited his prosecution); Blackledge, 417 U.S. at 31 (holding guilty plea did not foreclose defendant in habeas challenge from arguing that due process prohibited his prosecution). The state can permit pleas of guilty in which the defendant reserves the right to raise constitutional questions on appeal, and federal habeas courts will honor that arrangement. Lefkowitz v. Newsome, 420 U.S. 283, 293 (1975).
  5.  Jump to essay-5Blackledge v. Allison, 431 U.S. 63, 71 (1977).
  6.  Jump to essay-6Bordenkircher v. Hayes, 434 U.S. 357 (1978). Charged with forgery, Hayes was informed during plea negotiations that if he would plead guilty the prosecutor would recommend a five-year sentence; if he did not plead guilty, the prosecutor would also seek an indictment under the habitual criminal statute under which Hayes, because of two prior felony convictions, would receive a mandatory life sentence if convicted. Hayes refused to plead, was reindicted, and upon conviction was sentenced to life. Four Justices dissented, id. at 365, 368, contending that the Court had watered down North Carolina v. Pearce, 395 U.S. 711 (1969). See also United States v. Goodwin, 457 U.S. 368 (1982) (after defendant was charged with a misdemeanor, refused to plead guilty and sought a jury trial in district court, the government obtained a four-count felony indictment and conviction).
  7.  Jump to essay-7Blackledge v. Perry, 417 U.S. 21 (1974). Defendant was convicted in an inferior court of a misdemeanor. He had a right to a de novo trial in superior court, but when he exercised the right the prosecutor obtained a felony indictment based upon the same conduct. The distinction the Court draws between this case and Bordenkircher and Goodwin is that of pretrial conduct, in which vindictiveness is not likely, and post-trial conduct, in which vindictiveness is more likely and is not permitted. Accord, Thigpen v. Roberts, 468 U.S. 27 (1984). The distinction appears to represent very fine line-drawing, but it appears to be one the Court is committed to.
  8.  Jump to essay-8Boykin v. Alabama, 395 U.S. 238 (1969). In Henderson v. Morgan, 426 U.S. 637 (1976), the Court held that a defendant charged with first degree murder who elected to plead guilty to second degree murder had not voluntarily, in the constitutional sense, entered the plea because neither his counsel nor the trial judge had informed him that an intent to cause the death of the victim was an essential element of guilt in the second degree; consequently no showing was made that he knowingly was admitting such intent. A plea may be involuntary either because the accused does not understand the nature of the constitutional protections that he is waiving . . . or because he has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt. Id. at 645 n.13. However, this does not mean that a court accepting a guilty plea must explain all the elements of a crime, as it may rely on counsel's representations to the defendant. Bradshaw v. Stumpf, 545 U.S. 175 (2005) (where defendant maintained that shooting was done by someone else, guilty plea to aggravated manslaughter was still valid, as such charge did not require defendant to be the shooter). See also Blackledge v. Allison, 431 U.S. 63 (1977) (defendant may collaterally challenge guilty plea where defendant had been told not to allude to existence of a plea bargain in court, and such plea bargain was not honored).
  9.  Jump to essay-9Santobello v. New York, 404 U.S. 257, 262 (1971). Defendant and a prosecutor reached agreement on a guilty plea in return for no sentence recommendation by the prosecution. At the sentencing hearing months later, a different prosecutor recommended the maximum sentence, and that sentence was imposed. The Court vacated the judgment, holding that the prosecutor’s entire staff was bound by the promise. Prior to the plea, however, the prosecutor may withdraw his first offer, and a defendant who later pled guilty after accepting a second, less attractive offer has no right to enforcement of the first agreement. Mabry v. Johnson, 467 U.S. 504 (1984).