While there are many legitimate complaints about overuse of guilty pleas in federal court, it remains the fact that roughly 98 percent of all federal criminal cases end with a plea bargain. A guilty plea is tantamount to a jury or judge’s verdict of guilt.
In its first (or certainly one of its first) cases dealing with guilty pleas, the U.S. Supreme Court in 1927 in Kercheval v. United States held that: “A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a jury verdict, it is conclusive. More is not required; the court has nothing to do but give judgment and sentence. Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences.”
Enacted in 1944, Rule 11 of the Federal Rules of Criminal Procedure governs guilty pleas. The statute was enacted nearly two decades after the Kercheval decision as a safeguard to the use of guilty pleas; namely, to ensure that such pleas are knowingly and voluntarily entered and supported by an on-the-record factual basis, all of which were designed to promote fairness and efficiency in the guilty plea process.
More than four decades later, the Supreme Court in 1969 held that a guilty plea not entered “equally voluntary and knowing” violates due process of law. The following year, the court said that the standard for voluntariness is an “intelligent choice among the alternative courses of action open to the defendant.”
In response to these and other Supreme Court decisions, Rule 11 has gone through a series of congressional amendments designed to enhance the constitutional safeguard that guilty pleas be knowingly and voluntarily entered.
Writing in the Villanova Law Review in 2009, Kristen M. Hall detailed the history of these amendments:
· Amended in 1966: requiring the sentencing judge to 1) address the defendant personally; 2) ascertain that the plea was entered voluntarily and the defendant understood the nature of the charge against him; 3) determine the defendant comprehended the consequences of a guilty plea; and 4) ensure that there was a factual basis for the plea.
· Amended in 1974: to include a detailed list of advice the court must offer the defendant prior to accepting a guilty including the constitutional rights being waived, the mandatory minimum penalty, and the maximum penalty.
· Amended in 1982: requiring judges to advise the defendant of “the effect of any special parole term” resulting from a guilty or nolo contendere plea.
· Amended in 1983: with the provision that a “variance from the requirements of this rule is harmless error if it does not effect substantial constitutional rights.”
· Amended in 1985: to include the obligation of the judge to inform the defendant that restitution may be included as a component of the maximum sentence.
· Amended in 1999: requiring the judge to inform the defendant that a guilty or nolo contendere plea forfeits all appellate rights.
· Amended in 2002: increasing the judge’s requirements in accepting a guilty or nolo contendere plea to make sure defendant understands: (1) the constitutional rights being waived; (2) the nature of the charges; (3) the maximum penalty; (4) the mandatory minimum penalty; (5) any applicable forfeiture; and (6) the court’s role in determining an appropriate sentence.
The 2002 amendment, under the section of “Advising and Questioning The Defendant,” states that the defendant may be placed under oath and the court must personally address the defendant in open court to inform and determine that the defendant understands the following:
· the government’s right, in a prosecution for perjury or false statement, to use against the defendant any statement that the defendant gives under oath;
· the right to plead not guilty, or having already so pleaded, to persist in that plea;
· the right to a jury trial;
· the right to be represented by counsel, and if necessary, have the court appoint counsel at trial and at every other stage of the proceeding;
· the right at trial to confront and cross-examine adverse witnesses, to be protected from compelled self-incrimination, to testify and present evidence, and to compel the attendance of witnesses;
· the defendant’s waiver of these trial rights if the court accepts a plea of guilty or nolo contendere;
· the nature of each charge to which the defendant is pleading;
· any maximum possible penalty, including imprisonment, fine, and term of supervised release;
· any mandatory minimum penalty;
· any applicable forfeiture;
· the court’s authority to order fines and restitution;
· the court’s obligation to impose a special assessment;
· in determining a sentence, the court’s obligation to calculate the applicable sentencing-guideline range and to consider that range, possible departures under the Sentencing Guidelines, and other sentencing factors under 18 U.S.C. § 3553(a); and
· the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.
Congress, in its 1975 amendment, decided that Rule 11 needed to be fleshed out to implement the major constitutional standards the Supreme Court set out in 1969 in Boykin v. Alabama regarding the judicial taking of guilty pleas at the federal level. And with its 2002 amendment, Congress sought to put in place specific on-the-record safeguards to accommodate evolving judicial determinations aimed at ensuring the finality of guilty pleas; in other words, a clear record showing the voluntariness, understanding, and factual basis for the plea to limit successful post-conviction challenges to it.
he American Bar Association strongly recommends that defense counsel, in dealing with a guilty plea situation, should:
· Keep the defendant apprised of all plea discussions with the prosecution;
· Promptly inform and explain to the defendant all plea offers made by the prosecution;
· Should conduct an investigation and study of the case before advising the defendant about the acceptance of a plea deal;
· Advise the defendant of the alternatives before recommending the acceptance or non-acceptance of a plea deal;
· Conclude a plea deal only with the consent of the defendant, and only after ensuring the defendant that the final decision about the deal is theirs to make;
· Should not knowingly make false statements or misrepresentations to the defendant during plea discussions;
· Before any consideration of a plea deal, defense counsel should explore the possibility of a diversion from the criminal process if the law allows and the circumstances of the case permit; and
· Should make sure that the defendant understands all the collateral consequences of the proposed plea deal.
There are many legitimate complaints about the overall reliance on guilty pleas in both the state and federal courts. The decision about whether to face a trial or accept a guilty plea is a difficult one, and should never be made without the assistance of counsel who has strong trial experince and can evaluate strenghts and weaknesses of the case. It is the paramount duty and responsibility of a defense lawyer to ensure the plea is voluntary, supported by the facts, and knowingly entered into after all other options are acknowledged and discussed.
