Plea Bargaining in Federal Court Is Unonstitutional

If you are with me that the best reading of Article III, § 2, clause 3 of the US Constitution denies to the federal courts the power to conduct a non-jury criminal trial (post of 1/11/15), then the question for both of us is whether that provision also makes federal plea bargains unconstitutional.  At this time this is only a theoretical question, as the Supreme Court has resolutely resisted reading the Article III provision in its natural way. Were the Court, however, suddenly to see the light, perhaps by declaring federal bench trials to be unconstitutional, then the issue of plea bargaining would be brought front and center, and plea bargaining is a matter of immense practical importance. Guilty pleas now account for 97% of federal cases.

It may seem that the question is easily disposed. The operative constitutional language is “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.” Art. III, § 2, clause 3.  As any current participant in the criminal justice system will tell you, guilty plea dispositions are not trials. No judge, prosecutor, or defense counsel counts a guilty plea as a trial. Pleas go on a separate list, and you get less credit. (Guilty pleas do, however, go on the prosecutor’s conviction list right along with convictions after trial, and some defense counsel make their own lists of clients who were not convicted of the original top count, lists upon which plea cases are found right along with trial acquittals. We should be concerned about incentives when opposite sides can claim an outcome as a win.)

At least by the late nineteenth century, judicial and scholarly opinion would have rejected the possibility that guilty pleas were in violation of Article III.  Guilty pleas resulted in official judicial determination of guilt, a conviction of the defendant with all the same consequences as a conviction after trial, but it was not a “trial.” As Justice Douglas put it in 1969: “A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.” (Boykin v. Alabama, 395 U.S. 238 ).  

It is worth bearing in mind, however, that a statement of guilt by a suspect or defendant never has been enough by itself for a conviction.  The term “guilty plea” was not common to the old common law. There were confessions, which could, depending on the circumstances, go a short or long way towards a conviction. The confessions could be made out of court, and testified to by witnesses, or made in court by the defendant, himself. The same standards of evaluation of such confessions, in terms of the voluntariness and their consistency to facts otherwise established, were made in either case, by jury or by judge. The in-court confession morphed into the modern guilty plea. 

Not all statements made by defendants in the form of guilty pleas and with the intention to plead guilty ever were or are now in themselves convictions. They must first be “accepted” by the judge, and before accepting the plea the judge must make some important determinations. It is a constitutional requirement that the plea be voluntary, which the judge must assess by interrogating the defendant in open court. The defendant must "allocute" to conduct sufficient for each element of the offense, and the judge should not have any good reason to doubt the truthfulness of this allocution. Finally, the judge must determine that there is a factual basis for the plea, based on facts extrinsic to the allocution itself (although not necessarily admissible at trial.) 

There is really a fair amount of open court machinery involved in a guilty plea, and that machinery requires the judge to make determinations of fact, of credibility, and to weigh evidence. So, focusing on the late eighteenth century meaning of “trial,” it seems to me more than likely that current federal guilty plea process would have counted as an Article III trial, and hence all guilty pleas run afoul of the jury requirement.

There is, however, a stronger argument leading to this same conclusion. Harking back to my post of 12/15/14, I want to tender the question whether Article III permits a federal judge to reach a judgment of conviction on the basis of flipping a coin.  Does the jury trial requirement only require a jury if there is a trial, or does it require that there shall be no judgments of conviction by combat, coin flips,  agreement among the best and brightest, or any other means other than jury trial?  

It might be contended that the provision that rules out coin flip justice is the Due Process Clause of the Fifth Amendment.  But is it really plausible that an Article III judge had the constitutional power, until the Bill or Rights was ratified, to send someone to the gallows because a coin landed heads? 

Perhaps it was not the jury clause, but the Article III word “judges.”  Judges, at least in the official common law histories, never reached judgment by a coin flip. That would be decidedly “unjudicial.” This line of argument, however, runs into very strong evidence that bargaining with an accused over sentencing would also have been considered grossly unjudicial in the eighteenth century. That was then regarded as exactly the sort of involuntariness that would invalidate an in court confession, and certainly not anything a judge could be involved in or confirm.

The Supreme Court should take Article III as it is written and declare that the federal courts have no power to reach a criminal judgment by plea bargaining. The jury trial cannot be waived.