The Sentencing Matters Substack Book Review: The Cost of Plea Bargains, Edited by Lucian Dervan, Russell Covey, and Thea Johnson
Reflections and Recommendations from the ABA Plea Bargain Task Force
In April 1996, President Bill Clinton sent a letter to the U.S. Attorney community about enforcement of immigration laws. “Although we support legal immigration,” he wrote, “America cannot tolerate an influx of criminal and illegal aliens.” The message to the Justice Department in the letter from the President was unmistakable. “As we restore the rule of law to our nation’s immigration system, our goal is to create a seamless web of enforcement from the border to the workplace.”
Alan Bersin, then the United States Attorney for the Southern District of California, had been designated by Attorney General Janet Reno as her Special Representative for Southwest Border Issues. Bersin was an innovator and proud of it. He had been a Rhodes Scholar and had degrees from Harvard and Yale. He liked to say that he turned the Southern District of California into a think tank where problem solving, restructuring, and change were paramount.
The greatest challenge facing Bersin’s management team as they tried to fulfill the President’s mandate “was the overwhelming volume of border-related offenses, principally federal immigration violations.” Bersin realized he had to do more without any substantial increase in resources for prosecutors, defense attorneys, detention space, judges, and probation officers. He thought the way the criminal justice process in the district was working “did not embody an efficient or sensible use of federal resources.” So, he instituted new policies, and within 24 months, the felony caseload increased nearly 140 percent, from just over 1,000 felony prosecutions in 1993 to just under 2,400 in 1995.
How did he increase the capacity of the system to process the larger number of defendants without new resources? Bersin instituted his big innovation: “fast-track prosecutions.” He proudly explained the concept: if each of the cases “involved a full set of motions and a full workup toward trial, the system obviously could not handle them. Our prosecutors, however, have developed a series of procedures in the context of this fast-track system that have resulted in virtually all these cases pleading out within six weeks.” How?
“Within 24 hours of arraignment, an entire discovery package is delivered to defense counsel and to probation, together with, depending upon the criminal background of the offender, a plea offer that expires on a certain date. The plea offer is structured under the Sentencing Guidelines to make acceptance of it virtually guaranteed.” (Emphasis added.) The plea offers required that the defendant not only plead guilty, but also waive all presentence reports, appear before an immigration judge for stipulated deportation, and waive appeal, all within a six-week period. “The custody sanction imposed is significantly less than what a post-trial conviction sentence would produce but sufficiently long to spare the community from the presence of these criminals while we continue to strengthen our control at the border.”
In an interview with the editor of the U.S. Attorney Bulletin, a DOJ publication, Bersin was asked if the fast-track program was about making “an offer that can’t be refused.” He replied, “Yes.” The result of the innovation was a 99% plea rate, according to Bersin. And as fast-track programs spread, the capacity of the system increased, the number of felony convictions increased, and the guilty plea rate increased. We still live today with Bersin’s innovation. And last fiscal year, according to the U.S. Sentencing Commission, 99.6% of all immigration cases were resolved by guilty pleas.
It is just this type of practice – making exploding plea offers that can’t be refused – that is at the heart of the book, The Cost of Plea Bargains, Reflections and Recommendations from the ABA Plea Bargain Task Force, edited by Professors Lucian Dervan, Russell Covey, and Thea Johnson. I was part of the Task Force, although I did not contribute to the book. And I was reminded of Alan Bersin, the origins of fast-track programs, and all this 30-year-old history as I read the book and simultaneously watched what’s been happening now in the opening months of the Trump Administration. On its first day, President Trump signed an Executive Order, “Protecting The American People Against Invasion” along with nine other Executive Orders on his new immigration policy. And one day later, the Acting Deputy Attorney General sent a memorandum to all Department of Justice employees that echoed President Clinton’s 1996 letter and foreshadowed an even greater reliance on plea offers that can’t be refused.
“[T]he Department of Justice will take all necessary steps to protect the public and secure the American border by removing illegal aliens for crimes committed within U.S. jurisdiction,” the Acting Deputy Attorney General said. Then he directed federal prosecutors to “pursue charges relating to criminal immigration-related violations when such violations are presented by federal, state, or local law enforcement or the Intelligence Community.” And just as the Southwest Border U.S. Attorneys had to in 1996, current U.S. Attorneys will need to force more cases through a system already operating at capacity. The Acting Deputy Attorney General understood that. So, his memo included this – “Each U.S. Attorney’s Office shall coordinate as appropriate with the federal courts to inform the courts of this interim policy and develop processes for handling the increased number of prosecutions that will result.” (Emphasis added.) No new resources for prosecutors, defense attorneys, the courts, detention space, or probation. Just find a way to push more prosecutions down the pipe.
Making exploding plea offers that can’t be refused was once considered anathema to foundational American values. In times gone by, a U.S. Attorney would be embarrassed to even suggest what Alan Bersin and the Acting Deputy Attorney General said so proudly out loud. The jury trial right has a long history that predates the founding of our country. Its principles are to “to guard against a spirit of oppression and tyranny on the part of rulers,” and “as the great bulwark of [our] civil and political liberties.” Story, Commentaries on the Constitution of the United States, 540-541 (4th ed. 1873). Trial by jury has been understood from pre-America common law days in England to require that “the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant's] equals and neighbours . . .” 4 W. Blackstone, Commentaries on the Laws of England, 343 (1769). See also, Duncan v. Louisiana, 391 U. S. 145, 151-154 (1968).
The Cost of Plea Bargains is the reminder we need both of the history of plea bargaining and its implications for the finding of truth and the delivery of justice. The story of Alan Bersin is largely the story of plea bargaining in the United States. As the Editors and writers point out, it is the story of the “rise to dominance . . . of an American invention growing in the shadows of the criminal justice system against a backdrop of common law precedent that rejected the use of threats of further punishment or promises of leniency to induce pleas of guilty.” The Supreme Court recognized this in 2012, when it declared that “criminal justice today is for the most part a system of pleas” and maybe just hinted at some new scrutiny of the practice. The book tries to make sense of how we got to where we are with plea bargaining in America and then to explore ways to move back – at least a bit – towards the founders’ moral code and standards of a free people’s government.
As Professor Dervan discusses in his chapter, The Historic Rise of Plea Bargaining, plea bargaining is not a common law practice with deep roots. He tracks how widespread use of plea bargaining began only in the era of Prohibition, when just like in the Clinton Administration and now, a political imperative to increase enforcement emerged along with the expansion of criminal laws that together overwhelmed criminal dockets. The courts, Dervan explains, first examined the practice of plea bargaining “with great skepticism” typically ruling that it interfered with the fundamental constitutional right to trial. But eventually, the United States Supreme Court – and state courts too – capitulated, and plea bargaining spread far and wide to now dominate the criminal justice process.
The book reviews in considerable depth the social science research around plea bargaining, including the psychological studies that shed light on how incentives work on prosecutors, defendants, defense attorneys, and judges to influence decision-making and drive all involved to a plea-dominated system. These studies help explain why even an innocent person – or someone with a reasonable claim of innocence – might nonetheless plead guilty when faced with a certain plea offer. Being jailed while awaiting trial can be a big part of the calculus, but so can other pressures, including the availability of information about the case, the possibility of charges carrying mandatory minimum sentences, and the extent of the sentencing discount offered in return for a guilty plea.
There are chapters that share personal reflections on plea bargained cases, that explore procedural concerns around the bargaining process, and that discuss how the plea-bargaining reform movement has gathered momentum across the political and ideological spectrum. And perhaps most importantly, the book is about solutions; how to reform a criminal justice system to better embody the framers’ wisdom about the importance of the jury trial and why that’s not just a good idea, but essential in a free society. The solutions offered in the book are designed to avoid guilty pleas by the innocent, retain much of the efficiency of the current criminal justice process, and overall lead to more justice.
The solutions start with the 14 Principles adopted by the ABA Plea Bargain Task Force. They are based on a belief that a “vibrant and active docket of criminal trials . . . is essential to promote transparency, accountability, justice, and legitimacy in the criminal justice system.” The main thrust of the Principles is that guilty pleas should not result “from the use of impermissibly coercive incentives.” Of course, that begs the question, in a criminal justice system that is necessarily based top to bottom on the use and threatened use of force – from arrest to summons to subpoenas to trials to sentencings to imprisonment – of what is permissible coercion and what is impermissible. Most of the remaining principles try to draw that line, laying out both the necessary procedures to ensure fair access to the trial process and a core substantive principle too: “while some difference between the sentence offered prior to trial and the sentence received after trial is permissible, a substantial difference undermines the integrity of the criminal system . . .”
Thankfully, the book goes beyond spelling out principles and gets very specific with ideas to improve the system and take steps towards a greater embrace of the jury trial right. In his chapter of the book, Plea Formalization, Professor Covey explains how and why we might try to take the current plea-bargaining system, which is “characterized by informality and ad hoc-ness,” and turn it “into a more formal process akin to other aspects of criminal procedure subject to far greater regulatory parameters.” Doing so, Covey argues, would include requiring plea offers to be written and filed in court, standardizing plea agreements, and imposing limits on sentencing differentials.
Clark Neily’s chapter, Three Cures for Coercive Plea Bargaining, goes even further. Recognizing that innovation may be the antidote to improper plea bargaining just as it was what birthed it, Neily suggests some out-of-the box ideas worth considering. One is a trial lottery system in which randomly selected cases that were resolved by plea bargaining would be tried to a jury. As Neily writes, “a key virtue of trial lotteries would be to clarify whether illegitimate guilty pleas . . . are vanishingly rare, as some scholars contend, or instead more common.” Audits have been used to identify the scope of errors in medicine, manufacturing, aerospace, and could be used in criminal justice too.
Of course, I don’t anticipate that the new Administration will take up any of these ideas or engage in any consideration of plea bargaining and its costs. The Acting Deputy Attorney General’s January 21st memorandum suggests quite the opposite. But for those who cherish the core underpinnings of our free society – especially at a time of greater political involvement in prosecution decisions – this is an important issue. That might include the courts, and I want to believe it to be the case.
A few months ago, Professor Berman, in an essay on this Substack, recognized that “[w]ith many current Justices professing originalist commitments, it is timely and important to consider just what originalism might entail generally for various criminal law issues and doctrines.” An originalist take on plea bargaining would not likely bode well for many current plea bargaining practices. For those who might consider putting this issue before the courts, for those pushing policy change around the criminal justice process, and for those who just care about our democracy, its origins, and how the criminal justice system is – or isn’t – living up to the Framers’ vision, The Cost of Plea Bargains is a great primer. And the 14 Principles are a great benchmark.
