How to Make Plea Bargaining Work

...They interfere with court administration, since "bargains" are frequently struck after judges have allocated time for trials...

...the facts, unfortunately, are not): A few years ago, William Townes accosted a woman in the hallway of her building...

...Four decades ago the late Dean Roscoe Pound of Harvard wrote: "No legislative omniscience can predict and appoint consequences for the infinite variety of detailed facts which human conduct continually presents...

...Because he was allowed to plead guilty to second-degree robbery, it was not difficult for the judge to give him an indefinite term of no more than six years...

...Just as he was ordering her into the bedroom, footsteps were heard, so he snatched the watch from her wrist and fled...

...Concealing his handiwork was easy, since he received and reconciled the bank statements...

...Not only were the eight officers and many of the bar patrons prepared to testify and identify him, but he had made a full, and highly incriminating, statement to the police...

...Nonetheless, Wesley's mental state was so precarious that his doctors feared he would fall into psychosis if he had to stand trial...

...They contain information about the crime charged, some evaluation of the evidence, detailed summaries of the defendant's character, psychiatric make-up, and past history, including family life, employment records, educational background, and prior criminality, if any...

...In the early days of the English courts of equity, it was said that the disposition of cases varied with the size of the Chancellor's foot...

...And the only way to lure such pleas on the necessary scale is with bait: lesser pleas and lesser sentences...

...it was stipulated that in return for pleading guilty and saving the community the expense and uncertainty of trial, defendants ordinarily would be entitled to plead to one lesser degree of the crime with which they are charged...

...When genuinely triable issues exist, it is obviously wrong to penalize a defendant for going to trial...

...Upon returning, she screamed and he fled again—this time into the arms of waiting police...

...Agnew...

...He joined a black militant group, peddled its newspaper in his Harlem neighborhood for several weeks, then was recruited by one of the leaders to participate in the robbery, purportedly of a bar frequented by drug pushers, to raise money for the cause...

...His actual sentence was 15 months to two-and-a-half years, leaving him eligible for release in about 10 months, minus credit for time served while awaiting disposition of the charge...

...Others assert that the rich—armed with the diligence of privately retained counsel—may fare better than the poor...

...They produce inadequate sentences that do not permit sufficient rehabilitation time and effort, leaving society unprotected...

...In addition to making allowances for distinctions based on relevant data in a defendant's background, the degree of his participation in the particular offense and the prospect of his rehabilitation, plea bargaining facilitates favored treatment for defendants who help law enforcement by turning state's evidence...

...After his arrest, it was discovered that he had victimized at least four other businesses in the preceding 10 years...

...He played a passive role throughout, following the orders of this leader, who escaped in the confusion of the shoot-out...

...It relieves both the defendant and the prosecution of the inevitable risks and uncertainties of trial...

...Too often the big-city defense attorney uses courthouse "racing forms" for lawbooks...

...In part because of his combat experience, Wesley had become an alcoholic...

...Especially if he has been busy pursuing criminal activities to pay his lawyer and his bondsman, he may have two or three or more separate indictments pending against him by the time the first one is up for disposition...

...her undress, speeding the process by cutting part of her clothing from her body...

...Alarmed by the dangerous lenity of lesser-plea practices, a year ago the National Advisory Commission on Criminal Justice Standards and Goals (made up of two governors...

...In the eyes of the law, however, defendants who participate in a crime together are all chargeable with the acts of each...

...It is now the custom for prosecutors to indicate that such pleas are "in the interest of justice," or that they "provide adequate scope for sentencing...

...If a proscutor takes a lesser plea because of some uncertainty in his proof, or because of some factor in the defendant's background, or because of the defendant's minimal involvement in the crime, or because the defendant has rendered aid to the state in other cases, this should be explicitly noted in the court record...

...As a result, though, cases that would make the front pages if they went to trial are likely to be overlooked when a lesser plea is entered and minimal punishment imposed...

...In one of those cases, the amount also ran well into five figures...

...If intelligently employed, plea bargaining provides a sound means—and sometimes it seems the only one —of making the punishment fit the individual, rather than, Mikado-like, simply having it fit the crime...

...Yet he was not deemed insane, and loss of cognition because of voluntary intoxication is no defense in New York...

...These defendants would either plead to the indictments against them, risking long sentences, or go to trial...

...Only the most primitive bodies of law are composed wholly of rules, and even in primitive codes there is a certain amount of traditional 'interpretation...

...ON October 10, 1973, that exchange in a Baltimore courtroom ended the political career of Spiro Agnew, who only minutes before had stood "a heartbeat away from the Presidency...

...The then Attorney General, Elliot Richardson, speaking in patriotic generalizations, explained the Justice Department's reasons for accepting a "no contest" plea to a single charge of Federal income tax evasion and recommended against imprisonment...

...Were Wesley convicted of attempted murder, or had he pleaded guilty to a crime of that gravity, no judge could have been expected to assume the onus of placing him on probation...

...But crimes are committed by people, whose motives and methods vary in innumerable ways...

...The first function—relieving the pressure caused by the massive volume of felony cases to be tried in our urban courts—is generally considered the prime justification for plea bargaining...

...Cullinan's concocted references had not been checked by his trusting employers...

...Today, dispositions vary too widely with the vicissitudes of assistant prosecutors...

...When an accused felon is sentenced, our urban newspapers should tell us what charge the grand jury levied and what crime the defendant pleaded to, as well as what sentence was imposed...

...From the moment he was hired, Cullinan systematically padded payrolls, wrote checks for his own use and destroyed the stubs, and raised the amounts of other checks once they were signed by his employers...

...ten assorted prosecutors, police chiefs, sheriffs, crime commission and correction board chairmen...

...At the same time, such reductions might be barred for those with long records of previous criminality, and greater reductions might be permitted when specified social factors called for them...

...Detailed studies of individual cases, randomly selected and independently investigated by compassionate reporters, might further assist readers in judging both the defendant's potential danger to his community and the prospects for his rehabilitation...

...I would suggest several steps that could be taken immediately...

...When Hendricks and Stiefel were finally threatened with bankruptcy, a full audit revealed that over $80,000 had disappeared...

...The real question, therefore, is not plea bargaining or no plea bargaining...

...And this focus on spinning the revolving doors of the courthouse, rather than on the defendant's rehabilitation or the public's protection, has severely distorted the value and objective of the practice...

...Accordingly, judges and court administrators should let it be known that remorse will be found in the cases of defendants who plead guilty, while it may not be recognized in the cases of those who—with no defense and in the face of unequivocal proof—gamble and lose at trial...

...But if profoundly reinspected and reworked, it can be fashioned into a humane tool for both rehabilitating wrongdoers and reducing the nation's intolerable crime rate...

...placed on probation, he paid the token restitution ordered by the court in part with the funds he was stealing from Hendricks and Stiefel...

...Eric Stiefel, was 78 and partly deaf...

...And why, in 1967, did the President's Commission on Law Enforcement and Administration of Justice, in its seminal report, The Challenge of Crime in a Free Society, favor the continuation of plea bargaining...

...On the other hand, remorse is a valid consideration in sentencing, and a reasonably prompt guilty plea is an indication of remorse, acknowledging wrongdoing...

...In practice, it has become a vehicle for getting rid of cases—accounting at present for over 90 per cent of the country's felony dispositions...

...When the victim went to use a neighbor's phone, Townes reentered her flat...

...All too commonly, he is then permitted to plead to a single, reduced count covering the aggregate of the individual charges that he, in his industry, has logged...

...The quality of justice in all cases would suffer if overloaded courts were faced with a great increase in the number of trials...

...Plea bargaining today is a form of nonsense that our judges, prosecutors and the public (insofar as it is informed) have gotten used to...

...It is frequently called upon to serve important law enforcement needs by agreements through which leniency is exchanged for information, assistance, and testimony about other serious offenders...

...It prevented the defense bar from delaying cases in the hope of finding more amenable prosecutors, and resulted in a manageable increase in trials of cases where appropriate and equitable lesser pleas could not be negotiated...

...In New York City, for instance, some 27,185 felony indictments were returned by grand juries during the year ending June 30, 1972...

...Thus, on the same day that a New York Times editorial approvingly commented, "The settlement in the Agnew case represents an acceptable resolution of an awkward, unprecedented difficulty," Times columnist Tom Wicker protested, "For millions of Americans the lesson of the Agnew case is merely the confirmation of their bitter belief that prison is for the poor and the powerless, while mercy is for those who can swing it...

...To illustrate this point, let me cite two more cases: O'Neal Johnson and two others were holding up a bar when the police appeared...

...First, there should be a vast increase in the use of so-called prepleading investigations...

...As important as the accceptance of lesser pleas may be in keeping the wheels of justice moving, more important is the "flexibility" that plea bargaining affords —its use to "mitigate harshness," in the words of the Presidential Commission...

...Furthermore, he agreed that the Federal Government would not prosecute Agnew for acts of extortion and bribery committed while he was Governor of Maryland and Vice President of the United States...

...Although a year and a half earlier the nation had watched and laughed along with the plea arrangements in the opera buffa involving Clifford and Edith Irving's sale of their "authentic" Howard Hughes memoirs, the Agnew case presented something different...

...But in our largest cities, where crime is an ever-increasing problem, this happens every day...

...WHY, GIVEN ALL the negatives of plea bargaining, does it continue...

...Americans questioned whether the ignominy of resignation from high office was punishment enough for an elected official, or whether the penalty for abusing the public trust should be massive and unforgiving...

...Such statements say nothing...

...If there is no affirmative reason for the reduction, one that can be openly stated, it should not be permitted...

...Tremendous investments of time, talent, and money, all of which are in short supply and can be better used elsewhere, would be necessary if all cases were tried...

...Second, urban prosecutors' offices should work out consistant policies and set them down in writing, so that plea practices would cease to vary from one assistant prosecutor to another...

...But when he accepted the lesser plea to unlawful possession of a gun, the prosecutor was able to join in the recommendation of probation, permitting Wesley's hospitalization to continue...

...FOR THE PROFESSIONAL lawbreaker plea bargains are a particular boon...

...Alan Dershowitz, Professor of Law at Harvard and a leading militant against the death penalty and for the rights of defendants, has opposed plea bargaining on this discriminatory basis...

...Of these, only 965—less than 3 per cent—were tried through to completion...

...What need is there to understand the motivation of crime and the potentials for rehabilitation when certain judges and prosecutors will take set "markdowns" on certain charges as a matter of course...

...Today, amazingly, most plea bargains are struck by prosecutors whose knowledge of the crime involved is limited to a summary of less than a page hurriedly dictated by a colleague who himself spent no more than a half-hour on the presentation of the case to the grand jury...

...it is how we can substitute sensible judgment and sensitive evaluation for the current mass processing of pleas...

...one mayor...

...Significantly, New York State's tough 1973 drug law, while severely curtailing plea bargaining and imposing stiff mandatory sentences, expressly countenances breaks for informers...

...two judges...

...The Commission (chaired by former Attorney General Nicholas deB...

...Cullinan had established a consistent pattern of conscientiously fleecing his employers...

...Frederic N. Cul-linan, a confirmed and successful embezzler, was employed more than three years as a bookkeeper by two elderly gentlemen who had owned and operated a small wholesaling corporation for a half-century...

...Why did a distinguished American Bar Association (ABA) committee just five years ago formulate a code preserving lesser pleas...

...his associate...

...In short...

...When the confession tendered is to something far less serious, scarcely resembling the original charge, scorn and disrespect for the seeming folly of the law is the most likely result, not a genuine resolve to reform...

...JUDGE: ft is the full equivalent of a plea of guilty...

...From the defense viewpoint, Johnson's case was not even triable...

...Had he pleaded to the multiple counts of murder in the indictment, not a judge in New York or elsewhere would have dared to impose anything less than a very lengthy prison sentence...

...Charged with first-degree robbery and cognate crimes (making him then subject to imprisonment for a minimum of 10 years and a maximum of 30), as a first felony offender he was permitted to plead guilty to attempted grand larceny in the second degree (with a maximum term of two-and-a-half years in state prison...

...At knife-point he forced her to admit him into her apartment, where he made RICHARD H. KUH, a partner in the law firm of Kuh, Goldman, Cooperman and Levitt, served as an assistant district attorney and administrative assistant to New York County Prosecutor Frank Hogan from 1953-64...

...A guilty plea constitutes such acknowledgment, but to be meaningful it must bear some relationship to the crime committed...

...and a half-dozen distinguished private citizens) called for the end of all plea bargaining in this country within the next five years...

...The group held that "negotiated pleas" (its euphemism for lesser or bargained pleas) facilitate a number of evils: They endanger defendants' rights by waiving constitutional safeguards—jury trial, confrontation of witnesses, verdicts rendered on evidence found convincing beyond a reasonable doubt—and by occasionally Inclining innocent persons to plead guilty rather than run the risk of being convicted of more serious crimes...

...The criminal lawyer's role in the plea-bargain-basement-forum is that of a sycophant who knows the prosecutors and judges, who is familiar with their aversions and weaknesses, and who has mastered the art of delay so that he can come before the right judge and the right prosecutor at the right time to get the right plea...

...COUNSEL: On behalf of the defendant, your Honor, I enter a plea of nolo contendere...

...Robert Wesley was also charged with attempted murder, but not of a policeman, so he faced a maximum of 25 years' imprisonment...

...FINALLY, BIG-CITY newspapers should take a leaf from their small-town counterparts and report bargained pleas on a regular basis...

...For at best criminal statutes can only define broad categories of crime—e.g., murder manslaughter, assault, robbery, burglary—and differentiate two or three degrees of each, dependent upon such aggravating factors as the use of weapons or accomplices and the intent of the wrongdoer...

...He was offered a misdemeanor plea punishable by a maximum of one year's imprisonment (a felony conviction would have made him a multiple felony offender, subject to mandatory punishment of at least several years duration...

...Townes' prior record included 19 arrests over a 20-year period, an appreciable history of addiction, and at least three previously reduced felonies...

...Take the following typical cases (the names throughout are fictional...

...Katzenbach, and including among its 19 members another former attorney general, the president of Yale, a former and a future ABA president, a future Supreme Court Justice, and others similarly distinguished) concluded: "The negotiated guilty plea serves important functions...

...As a practical matter, many courts could not sustain the burden of having to try all cases coming before them...

...Even were judges, court officers, prosecutors, and defense attorneys to try much harder than they are accustomed to, there is no way they could handle the tens of thousands of big-city indictments without guilty pleas...

...The horrible thing about all legal officials, even the best," said Gilbert Keith Chesterton in another age, "about all judges, magistrates, barristers, detectives, and policemen, is not that they are wicked (some of them are good), not that they are stupid (some of them are quite intelligent), it is simply that they have got used to it...

...Under this provision, the defendant who otherwise faces a life sentence may be granted lifetime probation if he supplies "material assistance in the investigation, apprehension, or prosecution" of other felony offenders...

...As Agnew made us acutely aware, plea bargaining is not limited to crimes of violence...

...To be sure, in most small towns, if a migrant who had broken into a haberdashery and assaulted the proprietor were given a mere misdemeanor plea, the local press would instantly inform the citizenry...

...The encouragement such a light penalty afforded Cullinan's criminal inclinations, and what might happen to his future employers, were apparently not taken into consideration...

...On the other hand, they were optimistic that with long-term hospitalization he might again be a useful citizen...

...The widespread practice is generally ignored because it is essentially an agreement among defendant, prosecutor and judge, and lacks the compelling element of dramatic conflict inherent in trials...

...Cullinan's record did not outweigh the big-city rule of thumb that embezzlement, a nonviolent crime, does not ordinarily lead to jail...

...If judges and prosecutors had this knowledge when the bargaining was being conducted, they might fathom what justice requires...

...Yet by the time all this is usually made available—in some instances following a preliminary agreement as to sentence—it is obviously wasted information...

...IN THEORY, the purpose of plea bargaining is to separate society's wheat from its chaff...

...Indeed, were it not for informers—and informers more often than not are defendants seeking to get some break for themselves—drug enforcement would be still less effective than it is...

...In cases involving died-in-the-wool criminals, whose reports reflect their constant danger to society, lesser pleas would not be forthcoming...

...DEFENDANT: That is my plea, your Honor...

...It would be a serious mistake, however, to assume that the guilty plea is no more than a means of disposing of criminal cases at minimal cost...

...In 1970, the former New York County District Attorney Frank S. Hogan, widely regarded as the dean of public prosecutors, noted: "It can readily be appreciated that if merely 50 per cent of the 7,000 defendants accused of crimes in Supreme Court, New York County, in 1969 had demanded trials, the situation would have been completely unmanageable...

...Two smaller similar complaints had been "settled" with no criminal charges filed...

...His crime, too, occurred in a bar, late at night, before a host of witnesses...

...But in appropriate cases—with these reports to back them up —prosecutors should have the courage to offer greatly reduced pleas, and even to dismiss charges, without regard to the proof of guilt...

...He had gotten into an argument over trivia with another drinker...

...Consequently, the chances of that occuring are extremely remote, unless an unusually palatable justification can be articulated...

...Third, rules of court should be established or legislation enacted requiring that lesser pleas be announced and justified—quite specifically—in open court before being formally accepted...

...An intelligent young man and a much decorated war hero, he used alcohol to blot out the memories of heads blown open and comrades killed...

...At the time they discovered Cullinan's peculations, the senior partner...

...The major way of collecting evidence against persons above the street level in the narcotics trade is through the cooperation of lower lights: in return, they are given reduced pleas, and special consideration on sentencing...

...Fourth, judges should be willing to face up to their own role in precipitating guilty pleas...

...Some years ago a similar "code" was applied with great success in the New York County District Attorney's Criminal Court bureau...

...Full reports are mandated after guilty pleas are entered, just before defendants are sentenced...

...Plea bargaining can also serve to mask the indolence, timorousness and incompetence of both prosecutors and defense attorneys...

...Experienced psychiatrists at city hospitals who saw him after the shooting, and treated him for many months, were wholly satisfied that his alcoholism and the developing borderline psychosis accompanying it had stripped his memory of the shooting...

...The New York Times, for example, might find that more of its readers are interested in major crime in Fun City than they are in daily features like "Buyers in Town," "Insiders' Stock Holdings," "Federal Reserve Statistics," "Charts of Races at Aqueduct," "Shipping Mails," and "Weather Reports Throughout the Nation and Around the World...

...Such consideration, apparently, was pledged to the Maryland engineers who were prepared to testify to the monies they had paid the then Vice President Agnew...

...Criminologists critical of plea bargaining point out that the first stage in rehabilitating a wrongdoer is getting him to admit he has done wrong...

...Jan Hendricks, was 79, diabetic and going blind...

...A still earlier embezzlement in another state had led to a warrant for his arrest, but it was never executed...

...It imports a degree of certainty and flexibility into a rigid, yet frequently erratic system...

...A recently returned Vietnam war veteran, Wesley carried a souvenir pistol, illegally possessed, and used it to terminate the argument, firing several nonfatal shots into his adversary...

...After a brief shoot-out— fortunately, none of the eight patrolmen on the scene was injured—they were captured and charged with eight separate counts of attempting to murder a police officer, as well as numerous counts of robbery, assault and larceny...

...The guilty plea is used to mitigate the harshness of mandatory sentencing provisions and to fix a punishment that more accurately reflects the specific circumstances of the case than otherwise would be possible under inadequate penal codes...

...Whatever the ultimate resolution of the debate stirred by the ex-Vice President's predicament, there can be no doubt that it has drawn attention to plea bargaining...

...Yet the prosecutor, a New York case-hardened specialist in frauds, big frauds involving hundreds of thousands of dollars, was all but unconcerned...

...JUDGE: Is that your plea, Mr...

...Johnson, a somewhat dull-witted 17-year-old black dropout with no prior record, had become embittered some months earlier when hij mother died within 24 hours of being denied admission to a "white" hospital...

...In New York State, attempted murder of a policeman carries a life sentence...

...They encourage police and prosecutors to "puff" charges, or overcharge, in the hope that this will induce defendants to plead guilty to lesser crimes rather than stand trial...

...Plea bargaining thus becomes a necessity because prosecutors, judges, courtrooms and defense counsel are too few to staff the number of possible trials...

...It would clearly be preferable if...