Part 3 – A Proposal for Reform of Coercive Plea Bargain Practices

A large discrepancy between the charged crime and a plea offer indicates a situation in which the prosecutor is overcharging. In these cases, it is likely that the charge is a coercive tactic, designed to force the defendant into taking a plea deal. Under present conditions, a defendant in such a case has no legal recourse short of risking a full trial and heightened penalties. I propose that defendants in such cases should be able to assert a defense of duress, and move for a preemptive hearing on the issue before the conclusion of plea negotiations.

The Supreme Court has already recognized a duress defense in cases where a party voluntarily waives his rights. In Union Pac. R. Co. v. Pub. Serv. Comm’n of Missouri, the Court stated “It always is for the interest of a party under duress to choose the lesser of two evils. But the fact that a choice was made according to interest does not exclude duress.” In the Aaron Swartz case, the threatened sentence was 700 times greater than the plea offer. When faced with such a discrepancy, a rational actor could reasonably decide to take a plea, even if he feels that his chances of acquittal are much higher than 50%. Although on the surface it appears that the defendant has made a voluntary choice to accept a plea, it is clearly the product of coercion. It is exactly like the “choice of two evils” discussed by the Court in Union Pacific.

Prosecutors should be subject to judicial scrutiny during plea negotiations when the ratio of the maximum sentence they are seeking, versus the plea offer, is extremely high. Although there should be no bright line ratio for when a plea offer becomes coercive, situations like the one in the Swartz negotiations demonstrate that there are times when the discrepancy is so pronounced as to clearly amount to coercion. When the discrepancy is great, the court should have the ability to revise the maximum threatened sentence downward.
However, the court should not simply look to the bare ratio without examining other factors. Doing so would only encourage prosecutors to raise the stakes and request higher sentences in plea deals, making the ratio less pronounced. Instead, the court should look to extrinsic evidence to determine the typical sentence received in similar cases. The judge should weigh a number of factors, such as the amount of harm caused by the crime, the intent and likelihood of recidivism on the part of the defendant, as well as the victim’s desire for justice.

In Swartz’ case, his intent was not personal gain, recidivism was unlikely, the harm was extremely slight, and the victim – Harvard University – expressed that it did not wish to pursue charges. In such a case, 35 years of prison time is excessive, and clearly a coercive measure to encourage a plea. Under this proposal, Swartz’ lawyers should have been able to preemptively request a judicial hearing during plea negotiations. A judge could review the facts, and require the prosecutor to lower the maximum threatened sentence. Only by lowering the maximum sentence to a level that the reasonable actor would consider it a legitimate choice, can the waiver of trial be truly voluntary.

There is currently no option for judicial review of plea negotiations, except in very rare cases. If the option to go to trial is not a rational option, then a rational defendant has no choice at all. He is left to deal with the prosecutor alone as judge, jury, and executioner. Under my proposal, the status quo would remain unchanged in the vast number of cases. However, the threat of judicial intervention would serve to limit overzealous prosecutors, by forcing them to keep their maximum requested sentences in check. It would serve as a balance on their coercive power. It would also allow a defendant some judicial recourse without forcing a lengthy and risky trial.

Allowing for greater judicial intervention in the plea bargaining process would not come without costs. With lower maximum threatened sentences, more defendants may wish to roll the dice, and opt for a full trial. This would lead to additional resources being spent, and reduce the over-all efficiency of the judicial system. Prosecutors would almost certainly oppose the measure as a loss of autonomy in seeking justice for the state. It may also lead to frivolous motions brought by defendants seeking to delay their adjudication or better their bargaining position.
Even with the added expenditures for courts, it is in the interest of justice to allow defendants to seek the recourse of an impartial judge, rather than a zealous prosecutor. If a prosecutor is willing to accept a 6-month sentence as an appropriate punishment for a crime, then she should not be allowed to threaten the defendant with 35 years.

The pendulum has swung too far in the name of efficiency, and away from justice. Further, under my proposal, the mere threat of judicial oversight will cure the lion’s share of overcharging and coercion on the part of prosecutors, enabling a reduction in coercive practices without a corresponding reduction in efficiency.  We should not allow concerns of efficiency to override justice.


0218_carmen-ortizDOJ Prosecutor Carmen Ortiz faced scrutiny for her prosecution of Aaron Swartz.  Should there be more judicial oversight for prosecutors during pretrial negotiations?



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