Guest Blog: "Won't you pleas, pleas, help me" by Robert Sand

(With apologies to The Beatles and with gratitude to my students at Vermont Law School for inspiring and informing these reflections) 

The opinions expressed here are the author’s own and do not necessarily reflect the opinion or position of the ACLU of Vermont.

The criminal legal system has become a conveyor belt of plea agreements. Even though the right to trial by jury, enshrined in the Sixth Amendment, was meant to safeguard against tyrannical government exploits, this sacred right has all but vanished from contemporary criminal practice. 

Upwards of 97% of state and federal criminal charges result in a “negotiated resolution” more commonly known as a “plea bargain.” The prevalence of these agreements has turned the criminal court system into a processor of pleas. Judges, rather than serving as the arbiters of weighty legal issues and guardians of fair trials, have become fulfillment officers on the assembly line of convictions. 

Describing these outcomes as “agreements” or “bargains” is not particularly apt. Prosecutors have all the leverage in this process. They can indicate that without a pretrial resolution, additional charges may be filed. Prosecutors can threaten to seek the harshest penalties allowed under the law if a defendant does not give up the right to a jury trial and accept the plea proposal. And prosecutors can seek to hold individuals on monetary bail or without bail, placing increased pressure on an accused person to “plead out” and resolve the case.

For the few souls who dare to go to trial – to exercise their constitutionally protected right—in the event they are convicted, they receive punishment often vastly greater than what the government initially proposed to resolve the case before trial. Now, some say (as I did in my decades as a prosecutor) that the pretrial proposal “discounted” the appropriate sentence due to litigation risks – risks no longer present following a jury conviction. With the risk of litigation no longer an issue, prosecutors often argue for sentences vastly more punitive than what they initial proposed.  People who get convicted following a trial get punished for their conduct and for exercising their right to trial.   

To address the increased harshness imposed on those who go to trial, my students proposed:

  1. Requiring prosecutors to file their pretrial offers at court and then justify why they are seeking a harsher sentence following a jury trial; and,
  2. Expanding the change of plea dialogue to make even clearer the rights being waived by a person seeking to accept a plea agreement. 

Others have proposed additional responses for Vermont and elsewhere:

  1. Cap sentencing recommendations at the last plea offer;
  2. Ensure pre-plea open file discovery, giving defendants the opportunity to know all the evidence in the state’s possession, including evidence that would support the defendant’s case, before a plea agreement could be accepted;
  3. Guarantee defendants’ a right to appeal their case on legal grounds, even if they plead out;
  4. Release people during the duration of plea negotiations where they are held on monetary bail and do not present a substantial risk of flight
  5. Require prosecutors to take all steps possible to avoid immigration consequences of plea deals.

Here is an even more radical idea – eliminate plea bargaining entirely. What would flow from this drastic change? First, prosecutors would select more carefully the cases they file in court. The threshold to file a criminal case is very low. If prosecutors only filed charges they were prepared to bring all the way to trial, filings would decrease and referrals to community-based restorative justice programs would increase.  

Eliminating plea bargains would also recenter judges as the actual deciders of sentences. Since plea bargains drive the current system, prosecutors dictate the terms of the agreement, and judges almost always ratify the plea proposal, prosecutors are the principal drivers of the system. Perhaps the steering wheel should be returned to judges. 

Eliminating plea bargaining, while likely increasing the number of jury trials, would not mean all cases would go to trial. There would still be an opportunity for a person charged with a crime to accept responsibility and forgo a trial. Upon inquiry from the defense, a judge could suggest the range of outcomes the judge would impose (ideally informed by solid statewide data) upon the entry of a guilty plea. With this knowledge, an accused person could make an informed decision about whether to enter a guilty plea, consistent with the indications from the judge. Although these are sometimes known as “blind pleas” since there is no guarantee about the sentence, judges would certainly honor their indicated sentencing range. 

In a small state like Vermont, even a modest uptick in the number of jury trials would have a dramatic impact on the system, making it less efficient at securing convictions. Perhaps, though, efficiency is the enemy of justice.

Robert Sand is the Founding Director of Vermont Law School Center for Justice Reform, a former Windsor County State’s Attorney (1997-2013), and current High Bailiff for Windsor County, VT.