In Rejecting Plea Deal, Federal Judge Laments ‘Pandemic’ Waiver of Rights

by Nicole Flatow

In the wake of a U.S. Supreme Court opinion this term describing the modern criminal justice system as largely a “system of pleas, not a system of trials,” a Colorado federal district court judge has taken a powerful stand against “indiscriminate acceptance” of plea deals in an order disapproving one such agreement.

In a June 28 opinion that a New York Times editorial called “truly startling,” U.S. District Judge John Kane rejected the now-standard practice of approving plea agreements that waive a defendant’s right to appeal, finding that “calm and deliberate review of my decision by the Court of Appeals” is critical to the “interests of justice."  

“As a result of a guilty plea, bargained for or otherwise, and the concomitant waiver of the right to trial by jury, a criminal defendant also waives his rights to confront and cross-examine adverse witnesses, to present evidence, to compel the attendance of witnesses, and to require prosecutors to prove guilt beyond reasonable doubt,” Kane writes in an analysis that cites heavily to the Supreme Court’s recent opinion n Lafler v. Cooper, which held that defendants have a right to counsel during the plea bargaining stage.

In the Lafler majority opinion, Justice Anthony Kennedy highlighted the stark statistic that 97 percent of federal cases and 94 percent of state cases end in guilty pleas. In Judge Kane’s rejection of one particular plea, he contrasts the contraction of rights for these defendants with the expansion of discretion judges typically give prosecutors and defendants to reach a deal:

The glut of plea bargaining and the pandemic waiver of these rights have rendered trial by jury an inconvenient artifact. The pervasive waiver of individual rights has fundamentally altered the function of the courts.  The act of judging, once central to the determination of guilt or innocence, has been shunted to the margins.  A defendant’s “guilt” is, more often than not, preordained by the grand jury’s indictment.  To the extent judges actually participate in the criminal process, the push is to relegate us to approving or disapproving proposed plea bargains and, unless the plea contains a negotiated sentence, determining an appropriate sentence.  As characterized by Justice Scalia, the modern plea bargaining regime reflects “the sporting-chance theory of criminal law, in which the State functions like a conscientious casino-operator, giving each player a fair chance to beat the house, that is, to serve less time than the law says he deserves.”  Lafler, 132 S. Ct. at 1398 (Scalia, J., dissenting).

Prioritizing efficiency at the expense of the individual exercise of constitutional rights applies to the guilty and the innocent alike, and sacrificing constitutional rights on the altar of efficiency is of dubious legality. As noted by Justice Scalia, plea bargaining “presents grave risks of prosecutorial overcharging that effectively compels an innocent defendant to avoid massive risk by pleading guilty to a lesser offense . . . .”  Id. at 1397 (Scalia, J. dissenting).  A rational defendant, even if innocent, may plead guilty to a lesser offense in order to minimize the risk of prosecution.  Each plea bargain, therefore, and its concomitant prioritization of efficiency at the expense of the individual exercise of constitutional rights or the exercise of judicial responsibility, requires close scrutiny. 

Lafler v. Cooper is one of several major Supreme Court cases decided this term that implicate defendants’ rights during phases other than trial. The lawyer who argued and won Lafler, Valerie Newman, will discuss these cases and their implications during an ACS webinar July 24 at 4 p.m. EDT. Sign up for the webinar here.