More than 97 percent of people convicted of a crime plead guilty in this country, often in exchange for a favorable sentencing recommendation or the dismissal of some other criminal charges. But even when prosecutors won’t offer much in return, most defendants are eager to plead guilty because defendants who go to trial and get convicted receive significantly longer sentences. These long post-trial sentences give prosecutors enormous power at plea bargaining.
One small check on that power resides with judges, who have the ability to reject plea bargains. This isn’t a power that they use very often. But occasionally we see judges tell the parties that they will not accept a plea agreement, such as when earlier this year a federal judge rejected the plea bargain that the federal government had reached with Travis McMichael and Gregory McMichael, the men who murdered Ahmaud Arbery. (Arbery’s family had objected to the deal as too lenient.)
In a case decided on Tuesday, though, the U.S. Court of Appeals for the 6th Circuit significantly limited the ability of judges to reject plea bargains, broadening the power of prosecutors beyond its already expansive reach. The case arose out of a prosecution of a defendant in Detroit who had been charged with drug and gun crimes that carried a combined mandatory minimum sentence of 20 years in prison. The U.S. Attorney’s Office in Detroit has adopted a policy of requiring all defendants to waive their right to appeal and post-conviction review. So when the prosecutor and defense attorney told the trial judge that they were engaged in plea bargain negotiations, the judge told the lawyers that it is his “practice” not to accept plea bargains that include these waivers, and that he would reject the plea bargain if it contained such a waiver.
The parties negotiated a plea agreement that dismissed some of the charges, reducing the mandatory minimum sentence to 10 years in prison. But the agreement included an appeal waiver, and so the judge rejected it.
In an opinion on the matter, the judge expressed concern that the waivers would prevent any judicial oversight of prosecutorial misconduct in the plea bargaining process, and that it would prevent the court of appeals from correcting any errors that the judge himself might make in sentencing the defendant. The judge also expressed concern that these types of waivers interfere with the development of criminal law more generally as part of the normal appellate process. Finally, the judge noted that the government had failed to offer any decent reason an appeal waiver was necessary in the case.
In striking down the trial judge’s ruling, the appellate judges gave two reasons for siding with the government. First, they said that the trial judge impermissibly “participated in the parties’ plea negotiations” by stating that he would not accept a plea bargain with an appeal waiver. While judges are prohibited from participating in plea bargain discussions, the reason is to prevent defendants from feeling pressured to plead guilty. If a judge participates in the plea bargaining discussion, the rules of criminal procedure notes explain, that “might lead the defendant to believe that he would not receive a fair trial” or that the judge might impose a “substantially longer or even maximum sentence” if the defendant ultimately refused the plea bargain and proceeded to trial.
In this case, though, the judge wasn’t creating any pressure on the defendant to plead guilty. He was telling the prosecutor not to include a term that would be against the defendant’s interests. As a factual matter, the judge was not “participating” in the plea bargain discussions of the parties, but he also wasn’t creating the sort of pressure that the rule is meant to prevent.
The second reason the 6th Circuit gave for overruling the trial judge is even worse. The appellate court said that a judge may only reject a plea bargain for case-specific reasons. In other words, the judge must be able to point to some specific fact that made the plea agreement unacceptable in this particular case; it cannot rely on reasons that apply more generally to a large number of cases.
Not only does this explanation find zero support in the rules of criminal procedure, but it also makes no sense: It would prohibit judges from rejecting agreements with terms that are universally unjust, limiting the power to the rejection of terms that might pass muster in certain circumstances. Imagine, for example, a plea agreement that required the defendant to burn the word criminal into his forehead in return for a favorable sentencing recommendation from the prosecutor. A judge should obviously reject that plea agreement, not because there is something about that particular defendant that makes the plea bargain inappropriate, but rather because the government should never be able to require a defendant to disfigure him- or herself. But according to the 6th Circuit, a judge could only reject that plea bargain if she can articulate some reason this particular defendant (rather than all defendants) should not suffer that indignity.
It is ironic that the appellate judges faulted the trial judge for adopting a categorical rule about appeal waivers because the trial judge adopted this rule in response to a blanket policy from federal prosecutors. Indeed, the trial court asked the government why such a waiver was justified for this defendant in this case—a question that the prosecutor failed to answer. But the 6th Circuit apparently requires an “individualized assessment” in plea bargaining only from judges, not prosecutors.
It is clear that the 6th Circuit—which invoked the separation of powers and stated that trial judges must exercise their power to reject plea bargains “with due regard to prosecutorial prerogatives”—wants to give more power to prosecutors. But giving prosecutors the power to unilaterally demand lopsided plea bargaining terms and curtailing the power of judges to reject those bargains doesn’t “separate” powers; it concentrates power in the hands of prosecutors. Limiting the ability of judges to reject plea bargains—especially plea bargains that are unfavorable to defendants—not only weakens judges’ ability to serve as a check on prosecutorial power, but it also infringes on the constitutional power of judges as the officials tasked with entering judgments.
Indeed, plea bargaining itself interferes with the separation of powers. Perhaps that is why American judges were so critical of the practice until the early 20th century. Historically, a number of state supreme courts prohibited plea bargaining, and the U.S. Supreme Court was quite hostile to the practice. In an 1878 case, the Supreme Court refused to enforce the terms of a plea bargain that allowed defendants to avoid the seizure of their property in return for pleading guilty. When the government later decided to seize the property anyway, the court let the seizure go forward, saying that the prosecutor had no authority to enter into the plea agreement.
The Supreme Court only recognized the constitutionality of plea bargaining in the 1970s. Since then, our country’s prison population has skyrocketed and criminal trials have all but disappeared. As I explain at great length in my new book, plea bargaining has warped the fabric of the criminal justice system. It gives prosecutors enormous leverage over defendants, and it allows them to be the sole arbiters of what is fair and just. This opinion not only accepts that status quo, but it makes things even worse.