I've noticed a certain uneasiness in the chambers of several judges. They don't like talking about plea bargaining in any public way. Indeed, in one case, the state prepared a draft of a waiver a client was going to sign as a condition of entering a plea. The state included the term "plea bargain" in the document.
"Can't you take that term out?" the judge asked.
The state obliged.
I wonder why we are uneasy about talking about plea bargaining. I suspect it is because the term sets up a discussion of a reality the courts cannot acknowledge: defendants who go to trial in criminal cases and lose are punished more severely than those who plead guilty. Criminal defense lawyers and commentators in law review articles call this the "trial tax."
It's unlawful to punish a person because they exercise something as fundamental as the Sixth Amendment to trial. Earlier this month, the Connecticut Supreme Court, in the Elson decision, remanded a case for resentencing when a trial judge remarked about whether a man was truly remorseful at sentencing. If he were truly sorry, the judge suggested in her sentencing remarks, he would have spared the victim the ordeal of trial.
The real lesson in Elson is that trial judges ought to keep these thoughts to themselves. Saying such things on the record undermines confidence in the courts, or so the reasoning goes.
What intrigues me about Elson is that the court used its inherent supervisory authority to reach an issue not otherwise actually preserved for review. It wanted to make sure that justice was done. I am hoping the justices will inquire further into what is going on in the state's trial courts. There's plenty more work for the court to do.
Everyone knows that plea bargaining is a means of deterring folks from going to trial. The state typically throws the book at a defendant, charging as much as it can, including crimes with mandatory minimum sentences. It then offers a bargain: it will drop some charges in exchange for a plea. The trial courts have no power to require the state to avoid this form of charge bargaining.
It's different at trial. If the state overcharges a case at trial, a defendant can request a jury instruction on what's known as a lesser-included offense, reckless manslaughter, let's say, in a case charging murder. Jurors are then free to see that justice is done.
Why aren't judges free to see that justice is done in the pre-trial process? Why can't defendants make application to plea to a lesser charge when the state digs in?
On a pragmatic level, most prosecutors follow judicial recommendations to reduce charges. That's the whole point of the private plea-bargaining that goes on in judicial chambers throughout the state. But I suspect that public confidence in the courts and the administration of justice would improve if these machinations were truly transparent. Why secrecy in plea bargaining? Why let the state control the proceedings by depriving judges the power to see that justice is done?
And why, I wonder, do we permit those who go to trial to be sentenced so much more severely than those who enter a plea? There is only one real reason: we don't want folks to go to trial. Trial is time-consuming and costly. It is inefficient. Far better for the bean counters among us to move files along promptly, by way of a plea. Anyone who believes that there is no such thing as a trial tax to deter others thinking of going to trial is mistaken.
I am recommending that criminal defense lawyers statewide the following practice: be sure to make a record of the last-best offer in a criminal case. Move it into the record under seal if need be. Otherwise, be sure your client rejects the offer on the record.
If trial goes badly, ask for the last-best offer to be imposed as the sentence of the court. Argue that any departure from that offer is a punitive tax imposed because the defendant elected trial. If the bar raises enough of these claims, the Supreme Court might once again use its supervisory power to take a slap at the trial tax.
It's time to shed more light on the noxious practice of plea bargaining. Some countries don't permit it. We resolve 95 percent of criminal cases with pleas in Connecticut. That's criminal.