The Perils of Federal Plea Bargaining

I am not sure that the drafters of the federal sentencing guidelines really intended to encourage hypocrisy. Indeed, I am fairly certain they did not. Yet the manner in which the Guidelines influence pleas yields great temptations to be dishonest.

Even though the Booker decision has made the Guidelines non-mandatory, here in the Second Circuit they still govern. The Crosby case told the judges of this Circuit to consider them. Translated into practical terms, that means the Guidelines still govern.

What has this to do with hypocrisy and incentives to lie?

The Guidelines make it impossible for a defendant to plea under the Alford doctrine, which our Supreme Court has held permits a defendant to plead guilty to a crime he did not commit as a means of avoiding the potential for a conviction and far worse sentencing consequences should the defendant go to trial and lose.

It is not as simple as a person being picked up off the street in some Kafkaesque nightmare and made to answer charges for conduct entirely foreign to him. I'm not speaking necessarily of cases in which a defendant is factually innocent of all crimes, yet pleads, although I do not exclude this possibility.

No, the typical scenario is far more subtle, and frightening. In a drug conspiracy case, for example, the Government may overcharge a person, and then permit a plea only to a selected count. That count may require a person to admit things he did not do. For example, a drug dependent person caught with a lot of crack may be required to plead to a conspiracy count, even if she did nothing conspiratorial.

In order to get acceptance of responsibility points under the Guidelines, the person must admit to the crime. And even if those points aren't forthcoming, a federal judge will not accept a plea to a count unless the judge is satisfied the person is in fact guilty. Federal judges almost never accept Alford pleas. Thus, to benefit from a plea deal, a client is given an incentive to lie, to tell the judge what he wants to hear.

I had a close call recently. My client, X, is a heroin addict. He served as a taster for a kingpin; in exchange for providing opinions about the quality of dope, my client got discount prices.

X was busted and had 5 grams on him -- enough for about 250 bags. The Government charged conspiracy to sell. Of course, my client never sold; I could not permit him to lie. So how could he plead?

We plead him to the minor role of serving as taster in a larger enterprise the scope of which he knew nothing about. That satisfied the judge, so long as my client recited that he was aware that the kingpin was selling, a true enough fact.

Even so, the colloquy between court and client was tense, and the plea seemed in peril at one point. We needed to plea because the arrest of my client was solid, and phone intercepts created circumstantial evidence of a far larger role, even though that evidence was susceptible to a benign interpretation.

I wondered as I watched the plea unfold why the federal courts insist on being such prudish tight-arses. People plead for all sorts of reasons. As Alford teaches, one of the principle reasons is minimization of risk. By insisting on something like confession at federal pleas, I wonder how many defendants are doing more time than their conduct warranted after failed plea canvasses and lost trials?

Let's bring the Alford plea back into federal criminal practice and put aside the fantasy that the Government always gets it right. Sometimes a plea is just a means of avoiding the risk of a far worse outcome.