Despite public antipathy toward plea-bargaining -- most people regard it as yet another way in which criminals avoid just retribution for their crimes -- the dirty little not-so-secret is that if we didn't secure pleas or settlements in about 95% of all cases, civil and criminal, the justice system would collapse. Trial is an extremely labor-intensive procedure, and we simply can't tolerate any substantial increase in the frequency with which it occurs. It's not unusual for judges to get involved in attempting to settle civil cases. The perils of getting similarly involved in trying to resolve criminal cases are displayed by the 12th District's decision last week in State v. Schrieber.
In fact, Schrieber presents a textbook case of how not to do a plea. The defendant's claims that he was innocent were brushed off by everyone; there was a serious question of his competency; the judge promised him a sentence of six years; and the prosecution promised that he'd be allowed to withdraw his plea if the judge wanted to give him more than that. The judge wound up giving him seven, and the appellate court threw it out.
This wasn't the first time something like this happened, nor was it the most egregious. Back in 2003, in State v. Gaston, the 8th District tossed out a guilty plea after the trial judge advised the defendant of the consequences of going to trial in this fashion:
THE COURT: Mr. Delaney, have you explained to your client that the sentencing laws of the State of Ohio require the Court to look at various factors, and one of those factors is remorse and taking responsibility for the actions?
"MR. DELANEY: Your Honor, I have but give me one more second. Since the Court put that on the record let me put that to his attention.
"THE COURT: Well, just because, you know, many times defendants don't realize that courts can look at remorse as indicated by their willingness to plead to things they have done. And say [sic] for trials, things that they have not done. And obviously I don't know today which is true in this case, but at the conclusion of the trial the Court will be in a fine position to determine whether or not there was remorse or lack of remorse as evidenced by what goes on at the trial. And sometimes I think defendants don't know that that's a very serious factor that the Court looks at. Especially when the Court is determining whether to run a sentence consecutive, meaning one to follow the other, or whether to run a sentence concurrently. And I think that that's a very important sentencing factor that defendants need to have discussed in private and in confidence with their attorneys.
The appellate court justifiably concluded that this was a veiled threat that Gaston faced some rather severe consequences should he choose to go to trial.
Not-so-veiled, actually. The popular suspicion among both the bar and the public that the decision to go to trial is subject to enormous penalty is borne out by the studies, most recently one by Russell Covey in the Marquette Law Review. As Scott Henson notes in his excellent review of Covey's piece over at Grits for Breakfast,
For starters, using data from state courts, Covey calculates the existence of a baseline 292% "trial penalty," meaning the typical sentence for the same defendant might be three times as high if he or she exercises their constitutional right to trial. That's a big discount, but it's just for starters. Indeed, "Others have calculated average state trial penalties of 300%, rising in some states to as high as 500%. Abundant anecdotal evidence indicates that even higher trial penalties are not uncommon, particularly in dispositions of first-time offenders eligible for probation" Taking into account when charges are actually reduced instead of sentences lessened, Covey says sentencing discounts in some cases can approach 1,000%, meaning the plea deal gets the defendant 10% of the possible sentence at trial.
The flip side of that, of course, is that a defendant can get ten times as much prison time if he goes to trial as if he pleads.
But as long as the judge doesn't put anything like that on the record, it's all good.