Oct 18, 2007

the risks of plea bargaining in exchange for testimony

Want an Affirmative that will make the Neg's head spin? Argue that, according to the current resolution, plea bargaining in exchange for testimony is unjust--because it is unfair to the defendant who enters the plea.

In "Beyond the bright line: A contemporary right-to-counsel doctrine," in the Northwestern University Law Review, Summer 2003, Pamela Metzger describes a federal system that slants cooperation agreements against defendants, analyzing American practice under the 6th amendment.
Unlike other plea agreements, a cooperation agreement only requires the prosecution to make vague and largely unenforceable promises about sentence outcomes. The defendant promises to provide complete and truthful information. The defendant also agrees to disclose all past criminal activities. Further, the defendant agrees to testify in grand jury or trial proceedings and, when asked, to participate in monitored telephone conversations or engage in other surveillance-type activities, such as wearing a wire. The agreement also requires the defendant to agree to postpone his sentence until his cooperation is deemed complete.

In exchange, the government makes only one promise: if the defendant provides substantial assistance in the investigation and prosecution of another individual, the prosecution will make a motion to the sentencing judge for a reduction of the defendant's sentence. Several caveats, and even an explicit threat, accompany this promise. First and foremost, the government is to be the sole judge of whether the defendant has truthfully and completely cooperated. The decision as to whether the cooperation rises to the level of substantial assistance will be left to the sole discretion of the prosecutor's office. Often a cooperation agreement does not specify the extent of the departure the government will request. And, even if it did, that request would not be binding upon the sentencing court. Finally, if the defendant fails to perform under the terms of the agreement, the prosecutor's office retains the right to use the defendant's statements against him at a subsequent prosecution for false statements.

Ultimately, the cooperation agreement is a gamble, in which the defendant assumes the risk. The parties expect the defendant's sentence to be tempered by the court's eventual ruling. But, if the cooperation comes to naught, or if the government deems the defendant's cooperation insubstantial, a defendant has no right to withdraw his plea, and he suffers the full penalties prescribed by law. The prosecutor's exclusive determination of whether the defendant has provided substantial assistance is unassailable unless the defendant can show that the government withheld the promised motion for unconstitutional reasons.
These problems are magnified in the practice of "pre-charge bargaining."
Pre-charge bargaining in the federal system has an extra dimension that adds to its importance in determining outcomes: cooperation with law enforcement.... A defendant who cooperates with authorities after all of his coconspirators have already cooperated or pled guilty does not provide substantial assistance, regardless of his candor in confessing and naming names. As a result, many defense attorneys advise their clients to provide substantial assistance before formal adversary proceedings have begun so that they can win the race to the courthouse door.

An agreement to cooperate requires delicate negotiations. The process moves forward through a series of "auditions" that test the likelihood of the defendant's successful performance. Successful cooperation generally requires the defendant to "provide truthful, complete and accurate information" to the government. In exchange, the government agrees to file a motion asking the district court to reduce the defendant's sentence so long as the defendant provides substantial assistance....

Moreover, cooperation and full disclosure carry sentencing risks, risks that may be hidden from the unrepresented individual. For example, because guidelines sentences are based upon "relevant conduct," a candid admission by a cooperator may form the basis for a severe sentencing enhancement. In negotiated cooperation, many defense attorneys obtain for their clients a cooperation agreement that limits the ways in which the government can use information volunteered by the defendant as part of his cooperation. Absent such an agreement, sentence-enhancing information provided by a defendant can and will be used to calculate his guidelines range. With or without counsel, despite their strong motivation to reduce their sentences, cooperating defendants struggle to give candid responses to government questioning. The risks inherent in any cooperation debriefing are exacerbated when a defendant is unprepared for the proffer and lacks experienced counsel to assist him. The government's questions may confuse a cooperator who may be too nervous or too unsophisticated to understand what information the government is seeking. Intimidated by the interview process, a cooperator may not always focus on his best interests; after all, the uncounselled defendant knows only that the government, which arrested him (or has threatened to do so), is now asking him to answer incriminating questions. The cooperating defendant has a complex and confusing relationship with prosecutors and law enforcement. On the one hand, the government seems to be offering him a place, of sorts, on the government team. On the other hand, the defendant and the government have fundamentally adverse interests and, if negotiations break down, the government can withdraw its promised help and protection. In that event, litigation about those failed negotiations will pit the unrepresented defendant against the full weight of the government: it will be his word against the word of prosecutors and law enforcement.

Under the critical stage doctrine, the right to counsel attaches only "at or after the initiation of judicial criminal proceedings-whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Therefore, by definition, pre-charge bargaining occurs prior to the time when the right to counsel attaches under the Kirby rule. However, the modern machinery of criminal prosecution is so finely developed that it is often "a mere formality" that the government has yet to indict a defendant. Pre-indictment negotiations are increasingly common; yet, the rigid critical stage doctrine means that there is a blanket rule that no right to counsel inheres in these proceedings no matter how concretely adversary they really are.
With a value of justice and a criterion including due process, an affirmative could show that the risks, especially under charge bargaining, mean that defendants who do "make good" and cooperate can still face full punishment, even though they deserve better treatment for their cooperation and admission of guilt. Basically, this pre-turns any Neg case claiming that plea bargaining is just because testifying defendants merit less punishment.

Your thoughts, as always, are welcome.

30 comments:

Anonymous said...

I suppose you could argue that because the defendant has the option of going to trial that it doesn't matter whether or not his plea results in a less harsh sentence because he waived that right. Further that by saying, without the possibility of the judge not granting a lighter sentence, there would be no check on the defendants testimony and everyone would plea. Thus, because the defendant knows that his plea will not necessarily result in a less harsh sentence and because judge checks are needed in order to prove the validity of testimony PBET can still be just.

Jim Anderson said...

As the "charge bargaining" analysis shows, though, defendants are often making the choice to waive their rights without the assistance of counsel. Also, in general, the system is strongly slanted toward the prosecutor, who largely determines whether the testimony will suffice. Once the defendant has bargained the plea, there's no going back.

If the Neg is trying to show that PBET is also just because it helps convict other criminals, then the problem is exacerbated. The way the system is stacked against defendants means that some who would testify will turn down the option.

Christopher said...

What kind of argument could a neg use against this?

Jim Anderson said...

Christopher, good question. It really depends on the kind of Neg being run.

One answer could be the one given by anonymous above. Another would be the fact that the system is a necessary check to make sure that the testimony is truthful. A third could be that prosecutors won't want to abuse their power in the bargain, simply because if word gets out that prosecutors are reneging on deals, no one will cooperate.

Luis said...

Jim is there anyway to get around the arguments you posted for this case?

Jim Anderson said...

Absolutely, Luis. I've mentioned a couple above--but it's also possible to argue that a defendant who bargains in exchange for testimony is already guilty, hence the plea, and thus deserves the amount of risk involved. (This argument wouldn't work for a standard plea bargaining situation... but the resolution is very specific.)

Anne said...

Jim, I'm not completely clear on your previous point. Is it just because if the defendant knows information, they're most likely guilty? That's not true in all cases.

Jim Anderson said...

Anne,

It's not a rigorous analysis, but an intuition that a person who knows enough relevant, valid, useful information to secure conviction of another criminal--as required by federal sentencing guidelines for a cooperation plea deal--is generally a fellow criminal.*

Second, there's a check in the system: judges ask defendants if they are truly guilty before letting them cop a plea, and will refuse the plea if they're afraid coercion is involved.


*The LD judging guidelines ask debaters to defend the resolution as a "general principle," anyhow.

Anne said...

Thanks for the reply, I really appreciate it. =)

Anonymous said...

huh?? in english next time please

Anonymous said...

hey all,
for my aff case my criterion is consequentialism...but i cannot find the actual definition for the theory....could you help me?
thankyou

Jim Anderson said...

anonymous,

I'd recommend starting here[pdf].

Anonymous said...

So how would Aff. use this? Would they say that it is unjust that people plea yet they can still receive the full sentence? cause Neg. can always say that they always had the chance to opt out..

Jim Anderson said...

It could work in at least a couple ways:

1. It's coercion, which is unjust (if you have a case structured around that concept).

2. It tips the balance of power too far toward the prosecutor, which is unjust according to Constitutional principles (checks and balances / separation of powers, due process, no self-incrimination, etc.)

Though they had the "chance" to opt out, the state makes it seem like an irrational choice, since the prosecutor threatens a much more severe punishment should the defendant go to trial. This is where coercion comes in.

Anonymous said...

Is coercion the same as deterrence?

Jim Anderson said...

Coercion is the force used to get someone to plead. (Or, more generally, any kind of behavior or action that forces someone to change theirs.)

Deterrence is the idea that fear of punishment will prevent potential criminals from committing crimes.

As you can guess, there are similar characteristics--both involve fear, for one.

Anonymous said...

Since plea bargains nullify juries, the people lose input into the court systems and thus cannot check the government. What would be a good block against this?

Jim Anderson said...

There are several potential responses.

One is to posit that the defendant gives up the right, and thus the check is unnecessary.

Another is to note that judges oversee the plea deal, and keep prosecutors at bay.

A third is to note that the PBET exchange is different, because the defendant is giving up their right to help secure the conviction of another, by testifying and increasing jury participation. Without that PBET, the state would have no case, and no trial would occur.

A fourth would be to say that other considerations outweigh the lack of that one kind of check.

I'm sure there are other responses, too.

Anonymous said...

Since tools themsevles have no moral worth, I guess you could say that plea-bargaining is a tool and thus has no moral worth, i.e., you can't prove it just or unjust. Would this be a good K?

fred said...

Would it be a good idea to argue that, in this particular case, coercion is a type of good biopower? (Even if it is still coercion, PB still allows us to unclog courts, retain adaptibility, save time and money,etc.)

jazz said...

Since part of plea bargaining relies on the circumstances of the crime and not the crime itself, what would be a good brightline as to which circumstances you would weigh and how you would weigh them?

stuart little said...

I've hit a couple of people in my local circuit that have defined testimony as either testimony against oneself or another defendant. Would it be a good idea to do this myself?

Jim Anderson said...

anonymous,
Heard that argued, and it didn't work. Judges aren't terribly swayed by comparing a human activity, involving rules and moral agents, to a "tool."

fred, is "biopower" just? The resolution is centered on justice, after all. Also, PBET is a small subset of PB.

jazz, it's a plea bargain in exchange for testimony--so the quality of the testimony is the primary consideration. Google USSG 5K1.

stuart little,
It depends. On aff, that makes it so you can use Gary Ridgeway-type cases. On the Neg, I would restrict it to testimony against another, using USSG 5K1 as my warrant.

Pamela Metzger said...

Just saw this blog (long story) and thought your folks might be interested in considering a bigger-picture version of the argument you identified in my article. Most petty offense and misdemeanor courts are plea-mills. Prosecutors make plea offers at the defendant's initial appearance. If the defendant does not accept the bargain, and cannot make bail, the defendant will spend weeks, if not months, waiting for a trial date. So why the plea-mill? The deals always involve far less time in jail than a defendant would spend just waiting for a trial date. The most common offer is often a plea to time served (i.e. go home today). If the defendant doesn't want to plead, the court sets a new court day, often days or weeks away. A defendant who cannot make bail is thereby coerced into taking the plea because the cost of a trial is simply too high.

Jim Anderson said...

Ms. Metzger, thanks for stopping by. I suppose it might feel strange for an academic to know her work is being debated by high school students all over the country--but that's the fame that Lincoln-Douglas debate brings.

I'd say the phrase "plea mill" would be rhetorically powerful for any affirmative wanting to borrow that argument. It would work especially well with someone running a case based on equality or due process as a criterion.

Anonymous said...

i was wondering what could you say for the Negative side??

Anonymous said...

i was wondering wat could be a value and criterion for the neg side

Anonymous said...

I have been running an argument that specifically defines plea-bargaining as a mutual agreement, and so anything that involves pressuring the defendent (aka coercion) ISN'T actually plea-bargaining, but rather a preversion of plea bargaining...

Jim Anderson said...

Dear Anonymous Commentators, I get notified via email when you post--but sometimes the "anonymous" ones slip through. If you want your question answered more quickly, choose a nickname--any nickname.

That said, there are many Neg positions and values, which I've outlined above. Proportionality, Utilitarianism, Societal Welfare, Rehabilitation, Due Process, Equal Treatment, Constitutionality....

last anonymous, I've heard that definition, and if I had to go against it, I'd argue it's abusive, taking away Aff's ground merely by positing an idealistic situation where everyone's hunky-dory with the results.

sparks said...

yes, I have heard that also, however my main block if I ever run into problems with that is just because the deffinition is "mutual" doesn't mean it can't be coerced. For example, if I hold a gun to your head, and say "Do a handstand, or I'll kill you", then you'd still do the handstand, it would be an action both of you wanted (the person with the gun would want the handstand for whatever reasons he demended for, and the person doing the handstand would want to to avoid being shot.) However, there still is coercion because of the pressure put on the person (via the gunman) to do the handstand.


Any neg responses to this?