GUILTY PLEA: ACCEPTING THE PLEA

A guilty plea consists of a defendant admitting having committed one or more of the crimes charged and a court agreeing to accept that admission and to sentence the defendant. Ordinarily, a guilty plea occurs after defense counsel has bargained with the prosecution and obtained some concession—for example, a reduction of the charges, an agreement not to file other charges, or a stipulation with respect to the position the prosecution will take at sentencing. Nevertheless, defendants have a right to plead guilty without a prosecutor's agreement, provided that they plead to all the crimes charged. Defendants sometimes pursue this course in unwinnable or minor cases an which they believe a plea will encourage the presiding judge to impose a lenient sentence.

The nature of guilty pleas

The main purpose of a guilty plea is to produce a final conclusion to a criminal case. Once a defendant enters a guilty plea, the prosecutor has no further obligation to introduce evidence of the defendant's guilt. A pleading defendant waives the right to raise most objections to police, prosecutorial, or judicial behavior that could have been raised on appeal after a trial and conviction. However, the defendant may still appeal issues relating to the guilty plea process, to events that occur after the guilty plea (e.g., improprieties in sentencing), to the essential invalidity of the court's "jurisdiction," and to a limited number of constitutional violations. The Supreme Court has had difficulty identifying dividing lines for which constitutional issues may be raised post-plea. Appellate courts also have upheld the ability of prosecutors to demand, as part of a plea bargain, a waiver of the right to appeal some issues relating to sentencing. In general, the courts have shown a strong preference for maintaining the finality of guilty pleas.

In other respects, guilty pleas have the same consequences as guilty verdicts. The judgments of conviction carry the identical evidentiary value and ramifications for future proceedings—including the same potential for sentence enhancement and for forfeiture of assets. In many jurisdictions, a guilty plea or guilty verdict fore-closes defendants from suing their lawyers for malpractice.

Some jurisdictions recognize pleas that are not guilty pleas in the traditional sense. The most common alternative is the nolo contendere, "Alford," or "non vult" plea. It enables defendants to accept the consequences of a guilty verdict without admitting that they committed the offense. A nolo plea has most of the consequences of a guilty plea; the potential sentence is identical and the judgment is considered a conviction. The plea is useful when both sides want to dispose of a case in order to reduce their risks, but the defendant simply cannot admit guilt.

The nolo plea differs from a guilty plea in two significant respects. It may not be used against a defendant in a civil case as an admission or as proof that defendant committed the underlying crime. And the defendant can publicly continue to deny guilt. Because of these differences, a defendant has no right to enter a nolo plea unless the prosecutor and court agree to accept it.

In some jurisdictions, guilty pleas may be entered conditionally, by agreement with the prosecutor or under some institutionalized program. Typically, these pleas are suspended while the defendant is given an opportunity to satisfy conditions of the plea agreement. If the defendant fulfills the requirements, the plea is vacated and the charges dropped; if the defendant fails, the guilty verdict becomes final. The most common conditional pleas involve pretrial diversion programs and traffic programs requiring participation in traffic school.

A different form of conditional plea, which few jurisdictions recognize, entitles defendants to admit committing a crime but to preserve appellate issues that might preclude a conviction. The logic of these pleas is that, when only legal issues have potential merit, it is wasteful to proceed with trial just to preserve the defendant's right to appeal. Moreover, if legal issues raise matters of public importance—such as police misconduct in Fourth Amendment cases—the appellate courts should be able to hear them. In most states, a defendant wishing to concede guilt but to retain the right to appeal would need to obtain the prosecutor's agreement to a jointly "stipulated trial," in which both sides agree upon all the facts in a bench trial. Prosecutors, who engage in plea bargaining to reduce the risk of acquittals and to avoid expending resources on appeals, rarely agree to stipulated trials.

A defendant's excuse for criminal conduct ordinarily is irrelevant to the defendant's plea. Excuses are raised as affirmative defenses at trial or left for sentencing. A few states, however, require defendants to identify particular affirmative defenses as part of the plea—requiring, for example, a plea of not guilty by reason of insanity.

The plea process

Early in any prosecution, a defendant is brought before a judicial officer for arraignment. There, the judge advises the defendant of the charges, appoints counsel if necessary, and requires the defendant to enter a guilty or not guilty plea. In serious matters, the judge ordinarily will not accept a guilty plea at the arraignment unless satisfied that the defendant has been advised by counsel to enter the plea.

A defendant may change a not guilty plea to guilty at any time. Guilty pleas usually occur before trial, because prosecutors will offer concessions to avoid the risky and resource-intensive trial process. Occasionally, however, pleas occur after both parties have reassessed their chances of success in light of trial developments.

There is some question about the disclosure obligation of prosecutors before a plea is entered. Defendants need not accept a bargain until discovery is complete. But prosecutors may not be willing to offer as good a bargain late in the process. There is a strong argument that disclosure of at least constitutionally mandated discovery—including exculpatory material—should be required if defendants are to make rational judgments about the risks they face.

Once a guilty plea has been entered, the defendant is sentenced just like someone convicted after trial. However, the plea agreement may include sentencing concessions by the prosecutor, such as a promise to propose a particular sentence or not to take any position at sentencing. Some plea agreements specify a sentence to be imposed. Because sentencing is the court's prerogative, the presiding judge has the option of agreeing to impose this sentence or rejecting the plea agreement.

After sentencing, pleading defendants have the same time to appeal as convicted defendants. The issues that they may raise on appeal are limited. Additional procedures exist for attacking pleas collaterally. But because of the system's interest in finality and the reality that many defendants regret their decisions to plead guilty once incarcerated, courts restrict the grounds for undoing pleas.

The elements of guilty pleas

Valid guilty pleas have three basic elements. The court accepting the plea must have jurisdiction. The defendant must be competent to make the decision to plead guilty. Due process requires that the decision be voluntary and reasonably well-informed.

Competence and voluntariness are linked. Because plea agreements are conceptualized as rational bargains, it is important for courts to satisfy themselves that defendants have exercised free will. A mentally incompetent defendant or one under the influence of drugs or alcohol is legally unable to enter a voluntary plea. The standards for mental incompetence are similar to the standards for competence to stand trial; namely, whether the defendant can understand the proceedings and has "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding."

The concept of voluntariness extends further. It is easier to list factors that may make pleas involuntary than to identify a general standard for voluntary pleas. When a defendant enters a plea because of terror, threats, or improper inducements, the plea is not voluntary. On the other hand, a defendant's fear of the real consequences of not pleading guilty or the defendant's desire to receive concessions will not vitiate a plea. Otherwise, most pleas would be invalid. The dividing line is elusive.

Equally complicated is the question of how well defendants must understand the consequences of pleading. At a minimum, defendants must be made aware of the main constitutional rights being relinquished. These include the privilege against self-incrimination, right to trial by jury, and right to confront one's accusers. Defendants also must understand the nature of the charges against them and the maximum possible sentence. But when a defendant turns out to have been confused or to have received bad advice regarding such matters as the likelihood of winning at trial or of receiving leniency, courts have not been generous in deeming pleas involuntary. The opinions weigh the need to provide due process against the system's need for finality in guilty plea judgments.

Extraneous factors may require rejection of superficially valid pleas. One example is prosecutorial misconduct. The courts have rejected guilty pleas induced by threats, misrepresentations, overcharging, and broken promises by prosecutors. However, plea negotiations often involve posturing and puffing by the lawyers on both sides. The degree of compulsion created by such prosecutorial conduct is key to the decision of whether the conduct rendered a plea involuntary or violated due process.

The presence of competent defense counsel is relevant to an assessment of both voluntariness and defendant's separate constitutional right to effective assistance of counsel. When a defendant proceeds pro se or when the defendant's lawyer represents the defendant poorly (or is constrained by a conflict of interest), prosecutorial misconduct is more likely to force a plea and render a defendant's decision uninformed. As a result, courts hesitate to accept a guilty plea unless competent counsel is present. At a minimum, a court must assure itself that a defendant understands the right to counsel before accepting a waiver of counsel in connection with a plea. Conversely, the presence of active counsel may mitigate a court's sense that threats or fear prevented a defendant from making a voluntary, rational choice.

Judicial misconduct also can undermine plea agreements. Judges have statutory obligations in accepting pleas. Failure to fulfill these obligations does not automatically justify withdrawal of a plea. On the other hand, a judge's overinvolvement in plea negotiations may coerce defendants into accepting bargains, fearing retaliation for failure to do so. Some jurisdictions forbid any judicial involvement in negotiations. Even where no clear rule exists, judicial interference increases the possibility that a plea will later be deemed involuntary.

Statutory and procedural requirements

Numerous protections against faulty pleas exist. Most important are the right to counsel and the requirement of judicial supervision of plea agreements. To avoid guilty pleas becoming subject to collateral attack, most jurisdictions have adopted prophylactic procedures governing the plea process. These typically require judges to provide defendants key information and to satisfy themselves that each plea is voluntary and intelligent. Failure to implement the statutes may open a plea to subsequent attack. However, because the statutory requirements often exceed constitutional requirements, reviewing courts may overlook technical flaws in the proceedings as harmless error.

Guilty plea proceedings consist of an inquiry into the voluntariness of the bargain and the factual basis for the conviction. The presiding judge must inquire into the nature of the bargain, including all inducements, and into the facts that the prosecution could prove to support the charges. The best procedures require courts to engage in a dialogue with defendants through which defendants themselves show their understanding of the charges, the elements of the crime, the nature of the bargain, and the range of possible consequences of pleading guilty. In the course of this inquiry, the court also must satisfy itself that defendant is competent and understands the extent and nature of the rights being waived.

Following these procedures insulates most guilty pleas from subsequent challenge. They help ensure that a court will not accept a plea when there are indications that defendant is incompetent, the plea is involuntary, or a factual basis for conviction is lacking. When defense counsel appears to suffer from a conflict of interest or appears ineffective, the court must inquire into those deficiencies as well. Thus, by the time a subsequent court is asked to review the plea, the record usually is clear that the plea was voluntary, intelligent, and—though regretted by the defendant—a product of fair bargaining.

Subsequent challenges

Courts and legislatures hesitate to allow defendants who later find themselves dissatisfied to undo plea agreements. Nevertheless, occasions exist in which fairness demands reconsideration. Three mechanisms for challenging pleas exist. Defendants may seek to withdraw pleas, before sentencing or thereafter. Defendants may challenge pleas or sentences on appeal. Defendants may raise legal objections after the time for appeal has elapsed, through habeas corpus or other statutory procedures.

It is easier to withdraw a guilty plea before sentencing than thereafter. Federal and some state statutes authorize only pre-sentencing withdrawal. Their logic is that plea withdrawals before sentencing put the parties in the same position as before an agreement was reached. Thus, defendants are likely to request withdrawal only for a good reason. After sentencing, on the other hand, all defendants dissatisfied with their sentences will seek to undo their pleas. The longer the period that has passed, the more difficult it becomes for the prosecution to prove its case.

Accordingly, defendants may seek presentencing withdrawal for any "fair and just reason." A few courts have interpreted this standard as permitting automatic withdrawal unless the prosecutor shows prejudice. Most, however, require defendants to present some substantial justification for withdrawal. Jurisdictions that allow post-sentencing withdrawal impose a higher standard: defendants must show that "manifest injustice" will occur if withdrawal is refused.

After sentencing, a defendant may challenge the plea or sentence on direct appeal, provided that the appeal is filed within statutory time limits. Direct appeal offers advantages over other forms of collateral attack, because defendants may raise all legal and constitutional objections to the plea process without having to overcome jurisdictional hurdles. The grounds for successful appeal are, however, limited. Most claims of pre-plea police misconduct and evidentiary deficiencies are not cognizable.

In practice, most challenges to guilty pleas occur after the time for appeal has expired. They typically take the form of habeas corpus petitions, motions for new trials, or other statespecific post-conviction relief mechanisms. In deference to the government's interest in finality of judgments, these remedies all impose procedural obstacles to successful prosecution. Even if a petition survives these, courts ordinarily will not reverse guilty pleas unless a defendant can establish that a significant constitutional error has occurred and that maintaining the plea would produce manifest injustice.

Fred C. Zacharias

See also Appeal; Arraignment; Counsel: Right to Counsel; Counsel: Role of Counsel; Criminal Justice Process; Guilty Plea: Plea Bargaining; Prosecution: Prosecutorial Discretion.

BIBLIOGRAPHY

Adelstein, Richard P. The Negotiated Guilty Plea: An Economic and Empirical Analysis. New York: Garland, 1985.

American Bar Association. Standards for Criminal Justice Prosecution Function and Defense Function, 3d ed. Washington, D.C.: American Bar Association, 1993, 3–4.1 to 3–4.3; 4–6.1 to 4–6.2.

Alschuler, Albert W. "Plea Bargaining and its History." Columbia Law Review 79 ( January 1979): 1.

Bond, James E. Plea Bargaining and Guilty Pleas, 2d ed. New York: Clark Boardman & Co., 1982.

Kamisar, Yale; Lafave, Wayne R.; and Israel, Jerold. Modern Criminal Procedure, 8th ed. St. Paul, Minn.: West Publishing Co., 1994.

LaFave, Wayne R., and Israel, Jerold. Criminal Procedure §§ 21.1–21.6, 2d ed., St. Paul, Minn.: West Publishing Co., 1992.

Langbein, John H. "Understanding the Short History of Plea Bargaining." Law and Society Review 13 (1979): 261.

Schulhofer, Stephen J. "Plea Bargaining as Disaster." Yale Law Journal 101 (1992): 1979.

Scott, Robert E., and Stuntz, William J. "Plea Bargaining as Contract." Yale Law Journal 101 ( June 1992): 1909.

Zacharias, Fred C. "Justice in Plea Bargaining." William & Mary Law Review 39 (March 1998): 1121.

CASES

Blackledge v. Perry, 417 U.S. 21 (1974).

Bordenkircher v. Hayes, 434 U.S. 357 (1978).

Boykin v. Alabama, 395 U.S. 238 (1969).

Brady v. United States, 397 U.S. 742 (1970).

Godinez v. Moran, 509 U.S. 389 (1993).

Henderson v. Morgan, 426 U.S. 637 (1976).

Hill v. Lockhart, 474 U.S. 52 (1985).

Hollaway v. Arkansas, 435 U.S. 475 (1978).

Kercheval v. United States, 274 U.S. 220 (1927).

Lefkowitz v. Newsome, 420 U.S. 283 (1975).

McCarthy v. United States, 394 U.S. 459 (1969).

Menna v. New York, 423 U.S. 61 (1975).

McMann v. Richardson, 397 U.S. 759 (1970).

North Carolina v. Alford, 400 U.S. 25 (1970).

Parker v. North Carolina, 397 U.S. 790 (1970).

Ricketts v. Adamson, 483 U.S. 1 (1987).

Santobello v. New York, 404 U.S. 257 (1971).

United States v. Hyde, 520 U.S. 670 (1997).

United States v. Timmreck, 441 U.S. 780 (1979).

Tollett v. Henderson, 411 U.S. 258 (1973).

United States v. Broce, 488 U.S. 563 (1989).

White v. Maryland, 373 U.S. 59 (1963).

STATUTES

Fed. R. Crim. P. 11.

Fed. R. Crim. P. 32(e).