Loyola University Chicago Law Journal

Volume 9
Article 5
Issue 1 Fall 1977

1977

Principles of Plea Bargaining

George Beall
Partner, Miles & Stockbridge, Baltimore, MD

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Recommended Citation
George Beall, Principles of Plea Bargaining, 9 Loy. U. Chi. L. J. 175 (2015).
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 COMMENTARY
Principles of Plea Bargaining

GEORGE BEALL*

This article was originally delivered as an address at the Na-

tional College of Advocacy, an intensive one week, practical pro-
gram of trial advocacy designed to strengthen skills of both new
and seasoned practitioners. The text of that speech is on file in the
office of the Loyola University of Chicago Law Journal, Chicago,
Illinois. The transcript of the address was edited to eliminate its
oral quality and to provide substantive clarification at some parts.
Supporting footnotes were supplied where appropriate.
The Editors

Plea bargaining, plea negotiation, compromising criminal cases,

trading out-whatever one chooses to label it-the disposition of
criminal charges short of trial is as old as the criminal law itself, as
pervasive as the number of this country's judical jurisdictions, and
as diverse in form as the countless types of criminal misconduct.'
A discussion of plea bargaining requires that it first be defined.2
There are variations on the theme, and some prosecutors' offices
engage in one type of plea bargaining but not in others. The most
common practice is "charge bargaining." The heart of charge bar-
gaining is the defendant's tender of a plea of guilty or nolo contend-
ere to one charge in return for a prosecutorial commitment to drop,
reduce, or refrain from bringing additional charges. One common
form of charge bargaining involves an agreement between prosecut-
ing and defense attorneys whereby a defendant pleads guilty to a
particular charge in exchange for the dismissal of other charges.

* Partner with Baltimore firm of Miles & Stockbridge. B.A., cum laude, Princeton Univer-
sity, 1959; LL.B., University of Virginia, 1963. Mr. Beall was the United States Attorney for
Maryland from 1970 to 1975, during which time he was responsible for the investigation that
led to the resignation and conviction of former Vice President Spiro T. Agnew.
1. Sporadic reference to plea bargaining appears in early American case law. See, e.g.,
United States v. Ford, 99 U.S. 594 (1878). Until recently it has been considered a questionable
device, to be used sparingly and to be disavowed by the parties when challenged.
2. This article concentrates on the typical situation where plea negotiations occur after
formal charges are filed. There are exceptional circumstances, such as those involving former
Vice President Agnew, where the deal was made before charges were brought. In cases where
a person cooperates with the prosecutors he may be able to reach an agreement as to the
nature of the charges brought before they are formally filed.
 Loyola University Law Journal [Vol. 9

Another variation occurs when the defendant pleads guilty to a

lesser charge than the one originally faced.
A second form of plea bargaining is called "sentence bargaining."
This occurs when the defendant pleads guilty to the original charge
in return for a recommendation from the prosecutor of sentencing
concessions, such as a suspended sentence, probation, or imprison-
ment not to exceed an agreed term of years.'
The defendant's motive in plea bargaining is to reduce his maxi-
mum sentence exposure as much as possible. Typically, the prose-
cutor's motive is to secure a conviction and to eliminate the risk,
time, and expense of litigation by getting the defendant to convict
himself by a plea. Sometimes, however, the prosecutor may also be
motivated by a desire to obtain evidence against another defendant
more deeply involved in the crime. To do this, he may need the
defendant's cooperation.
The kind of deal that can be offered to or negotiated by a defen-
dant is a function of that individual's circumstances. At one end of
the spectrum of possibilities facing the defense attorney is the de-
fendant fortunate enough to be confronted by a weak prosecution
case, or possessed of information of great value to the prosecutor.
This defendant may be able to obtain a dismissal of all charges in
exchange for his agreement to cooperate. This disposition, known as
a "pass," amounts to complete immunity.
Another possibility, assuming the defendant's own transgression
is both serious and provable, is for the defendant to seek in return
for his willingness to plead, both a reduced charge (which limits his
sentencing exposure), and even better, the favor of a prosecution
recommendation of no incarceration. No jail, a "walk" as distinct
from a pass, is for most defendants the ultimate prize.
The defendant and his counsel have two basic bargaining levers.
First is the ever-present threat to go to trial and perhaps take ap-
peals. Second, but only in exceptional cases, is the capacity to coop-
erate with the government by furnishing helpful information about
the criminal activity of others.
The various bargaining points of the prosecutor include: (1) re-
duction of the original charges; (2) dismissal of other charges; (3)
recommendation of probation or other leniency; (4) agreement to
make no recommendation as to sentence or not to oppose a defense
plea of leniency; (5) agreement to dismiss charges against a co-
defendant; or (6) stipulation to a specific sentence such as restitu-

3. Berger, The Case Against Plea Bargaining, 62 A.B.A.J. 621, 621 (1976).
19771 Principles of Plea Bargaining

tion or incarceration at a particular penal institution. The various

combinations and mutations are infinite.
However structured, plea bargaining has been at the eye of a
storm of controversy for years. Criminal defendants and their attor-
neys extol the practice and advocate it as a necessary element in our
system of criminal justice.' Prosecutors and judges have long ac-
cepted as an article of faith that plea bargaining is necessary to
avoid congestion in the courts capable of bringing the system to a
grinding halt.5 Yet most members of the public, particularly those
who are victims of crime, abhor plea bargaining and regard it as a
violation of society's interest in seeing that criminal conduct is ade-
quately punished.'
SILENT AGREEMENT AND BEYOND

Inexplicably, courts and prosecutors in this country have for gen-

erations simply pretended that plea bargaining did not exist.7 Like
sex before Freud, everybody did it, but nobody talked about it. In
fact, to enhance the chances of obtaining convictions in prosecu-
tions based on bargained testimony, as well as to offset challenges
to the credibility of a witness who had an interest in the outcome
of a case, the "silent" agreement was developed.
The mechanics of this perversion of the criminal justice system
required defense counsel and the prosecutor to agree informally and
off the record that a defendant would plead guilty and possibly
cooperate. In return, the prosecutor would recommend leniency.
The prosecutor would not discuss the understanding openly with the
accused, relying instead on the defense lawyer to relay communica-

4. Id.
5. Id.
6. Id.
7. The tradition of Anglo-Saxon jurisprudence has actively discouraged pleas of guilty.
Litigation, whether trial by battle, ordeal, or some other would be fact-finding mechanism,
was for centuries looked upon as the safest test of justice. At early common law, a procedure
known as "approvement" reflected that tradition of discouragement:
It is, when a person indicted of treason or felony, and arraigned,
confesses the fact before plea entered, and . . . accuses others of
the same crime, in order to obtain his pardon. . . . Such approve-
ment . . . is, in effect, equivalent to an indictment, since the ap-
pellee [accused] is equally called upon to answer it; . . . If found
guilty, he [the accused] must suffer the judgment of the law; and
the approver shall have his pardon. . . . If the appellee [the ac-
cused] be acquitted the approver shall receive judgment to be
hanged, upon his own confession of the indictment, for the condi-
tion of his pardon had failed, viz: the conviction of another person.
W. BLACKSTONE, COMMENTARIES 893 (Gavit ed. 1941). This ancient practice did not exactly
encourage cooperation.
 Loyola University Law Journal [Vol. 9

tions. To insure that the silent agreement would be carried out, and
that both sides would achieve maximum benefit, the accused would
be required to enter a plea of guilty. It would be represented to the
court that there were no agreements or understandings, and that the
prosecutor would make no recommendation, at that point, as to
disposition. The defendant would then give information and proba-
bly testify. After the trial of his accomplice, the defendant would
be brought before the court for sentencing, the prosecutor would
recommend leniency, and almost invariably, the court would follow
the prosecutor's recommendation.'
What the prosecutor, the defense counsel, and the defendant
knew definitely, and what the judge must have known, was that the
State's decision to dismiss the remaining charges and make recom-
mendations favorable to the defendant at sentencing was the prod-
uct of plea bargaining. They all knew, but did not discuss the pur-
pose behind the process.
To the State, the plea removed the risks of trial and guaranteed
a conviction. To defense counsel, it was a good deal for his client.
To the defendant, it was the way the system worked, a hypocritical
bow to the false goddess Justice. To the judge, it was a pious fraud
mandated by constitutional proscriptions of voluntariness and solic-
itude for the image of judicial integrity. Like some alcoholic in-law
banished from the parlor when company came, plea bargaining was
not permitted to show its face in public.
Recently, judges' and lawyers' attitudes toward negotiating guilty
pleas have reversed. The lay public, while not necessarily of the
same mind, knows plea bargaining is a fact of our daily lives because
of Watergate, Agnew, newspaper editorials, and late night radio talk
shows. More importantly, the United States Supreme Court in 1971

8. Daily courtroom scenes around the country ran approximately as follows:

THE COURT: Is this plea entered voluntarily of your own free will and volition?
DEFENDANT: Yes, your Honor.
THE COURT: Specifically, have any threats of any kind been made to force you to plead
guilty?
DEFENDANT: No, your Honor.
THE COURT: Have any promises been made or inducements offered to make you plead
guilty?
DEFENDANT: No, your Honor.
THE COURT: I want to inquire of both the state and defense counsel whether they are
satisfied that the defendant's responses are true.
PROSECUTOR and DEFENSE COUNSEL (In unison while looking at their shoes): Yes,
your Honor. They are true.
THE COURT: With those assurances, the Court will accept the plea. Mr. Prosecutor,
what is the disposition of the remaining charges?
PROSECUTOR: The State respectfully moves to dismiss the remaining charges.
THE COURT: So ordered.
19771 Principles of Plea Bargaining

issued its own seal of approval to the legality of plea bargaining.

In Santobello v. New York,9 after negotiations with the prosecu-
tor, the defendant withdrew a previous not guilty plea to two felony
counts and pleaded guilty to a lesser included offense. The prosecu-
tor, meanwhile, agreed to make no recommendation as to sentence.
Many months later at the sentencing hearing, a new prosecutor
recommended the maximum sentence, which the judge imposed.
The defendant's efforts to withdraw the plea were unsuccessful.
Chief Justice Burger, writing for the Court, reversed the conviction
and remanded the case for further consideration in light of the
Court's opinion.
For the first time, the Court squarely addressed the practice of
plea bargaining. It did so in terms, which in the context of the past,
were nothing short of revolutionary.
The disposition of criminal charges by agreement between the
prosecutor and the accused, sometimes loosely called 'plea bar-
gaining' is an essential component of the administration of justice.
Properly administered, it is to be encouraged. If every criminal
charge were subjected to a full-scale trial, the States and the Fed-
eral Government would need to multiply by many times the num-
ber of judges and court facilities. 0
The Court declared that the disposition of charges after plea nego-
tiations was not only essential but also highly desirable." It leads
to a prompt and final disposition of most criminal cases; it avoids
much of the "corrosive impact of enforced idleness" during pretrial
confinement for those denied release while trial is pending; it pro-
tects the public from accused persons who are prone to continue
criminal conduct while on pretrial release; and by abbreviating the
time between charge and disposition, it enhances rehabilitative
prospects of the guilty when they are ultimately imprisoned.2
Santobello swept away the deceptions of the past. The Court
made it clear that a bargain is binding and should be publicly
disclosed to the court and placed on the record. Today, it is common
practice for the judge, when inquiring as to voluntariness, under-
standing, and consequences of the guilty plea, to inquire whether
plea bargaining has occurred in the case at bar, thereby specifically
adverting to the Supreme Court's statement that plea bargaining is
''an essential component of the administration of justice." Agreed

9. 404 U.S. 257 (1971).

10. Id. at 260.
11. Id. at 261.
12. Id.
 Loyola University Law Journal [Vol. 9
arrangements are then stated in open court and put on the record.
Hence, the practical significance of Santobello is to bestow the
blessing of the highest court in the nation on plea bargaining. As a
theoretical matter the decision also has the effect of removing any
doubt created by earlier decisions that a plea entered as a result of
negotiations will indeed be voluntary within the constitutional com-
mands of the fifth amendment."
Notwithstanding the unequivocation of the Court in Santobello,
plus respectable support from the ABA's massive project on Mini-
mum Standards for Criminal Justice, and the President's Commis-
sion on Law Enforcement and Administration of Justice (the Kat-
zenbach Commission of 1972), plea bargaining is still heavily at-
tacked. The successor to the President's Commission, the National
Advisory Commission on Criminal Justice Standards and Goals
(the Peterson Commission), called for abolition of plea negotiations
"as soon as possible, but in'no event later than 1978."" Controversy
surrounding some of the Watergate cases and Spiro Agnew's alleged
"sweet deal" have generated an explosion of public interest concern-
ing the legitimacy of plea bargaining 5 as an institution."
Some prosecutors, in fact, have quit plea bargaining except in
rare cases, condemning the practice and adopting policies against
it. But this is neither the time nor the place to debate the esoteric
point. For present purposes, the usefulness of plea bargaining can
be summarized as follows: it serves the interests of our criminal
justice system. With respect to the individual case in which the deal
is negotiated, it accomodates or offsets the ever-present, but varia-
ble factors of the litigation hazard. In terms of administration of the
courts it permits disposition of 90% or more of all cases by guilty
pleas. In a broader sense, the aims of society are served by encourag-
ing the cooperation of those who are caught in crimes in order to
bring to justice the more culpable or more dangerous offenders.

13. A year later, in Giglio v. United States, 405 U.S. 150 (1972), the other side of the coin
was examined. The Court held that whenever there is an agreement between a witness and
the prosecutor concerning the disposition of charges against him, due process requires that
this fact be revealed to those against whom the witness testifies. Failure to do so is reversible
error.
14. U.S. NATIONAL ADVISORY COMMITTEE ON CRIMINAL JUSTICE STANDARDS AND GOALS -
REPORT OF THE TASK FORCE ON COURTS (1973).
15. Notwithstanding such criticism, the Supreme Court recently reaffirmed its sanction
of plea bargaining in Blackledge v. Allison, 97 S. Ct. 1621 (1977).
16. In July of 1977, Georgetown University released a study commissioned by the United
States Department of Justice describing in great detail the dimensions of plea bargaining in
the United States. The study, while reserving judgment on the question of whether plea
bargaining should be completely eliminated, concluded that the whole process is in need of
tighter control and more openness. Georgetown University Law Center's Institute on Criminal
Law and Procedure-Plea Bargaining (1977).
19771 Principles of Plea Bargaining

Conversely, to speak of the elimination of the practice is visionary

and hopelessly idealistic. It is an entrenched practice, arising out of
perceived necessity, buttressed by powerful traditions, and blessed
by judicial opinions. Furthermore, abolition, as the Peterson Com-
mission suggests, would probably result in again driving the prac-
tice underground. It is better for plea bargaining to be brought into
the open and controlled by standards such as those of the ABA, than
to be returned to the backrooms of the courthouse.
So long as we have an adversary system of criminal justice, where
prosecutors are in substantial control of what charges and what
cases to bring, where courts possess a wide range of sentencing dis-
cretion, and where rehabilitation of offenders remains more dream
than reality, the natural and inevitable pressures on both sides to
"bargain out" will be irresistable. Frank acknowledgement of these
facts and concomitant efforts to make the process more rational
represent wholesome steps forward in the administration of criminal
justice.
THE TIME TO BARGAIN

From the defense standpoint, one of the last questions counsel

addresses to a client on his behalf should be whether the client
should bargain. A negotiated disposition, after all, bears the same
relation to an acquittal that an amputation bears to penicillin ther-
apy-it is never the preferred treatment. It falls far short of full cure
and is invariably accompanied by unpleasant side effects. 7 Hence,
while prosecutors try to begin plea negotiations as soon as possible
after a case is filed, the policy of defense counsel is to delay, gam-
bling that the State's case will weaken with the passage of time."8

17. In the context of political corruption or "white collar" cases, one can safely conclude
that those who bargained for their freedom have also incurred social ostracism, personal and
professional disgrace, and perhaps financial ruin. The cost of dealing for those criminal
defendants, while seemingly cheap in terms of criminal responsibility, may be very dear to
their self-esteem, family, and community standing.
In all cases, the defendant faces the embarrassment and humiliation of voluntarily admit-
ting in open court to his serious criminal misconduct. He will lose certain civil rights, may
be prevented from obtaining certain licenses or types of employment, may be unable to enlist
in the armed services, or may be deported. If the defendant had to cooperate and testify as
part of the deal, he will face cross-examination as a government witness.
Moreover, he forever gives up the opportunity to tell his family and close friends that he
was really innocent or the victim of a biased jury. Turning state's evidence is also likely to
result in loss of job or business, and perhaps, physical reprisal against him or his family. Most
people are somehow hostile toward those who have exchanged testimony for immunity.
18. One study of the criminal justice system in Chicago showed that the conviction rate
declined from 92% in cases that were tried promptly to 48% in cases that were substantially
delayed. Banfield & Anderson, Continuancesin the Cook County Criminal Courts, 35 U. CHI.
L. REv. 259, 300 (1968).
 Loyola University Law Journal [Vol. 9

One finds with a criminal defendant, however, that the thought

of a possible deal is almost always near the surface. The subject is
generally raised by the defendant. He cannot eat and has trouble
sleeping at night. He is convinced that his telephone is tapped and
that he is being followed. The uncertainty of his fate bothers him
more than anything else. At that point, the principal functions of
defense counsel are to calm his client, to convince him that the facts
must be studied and the case assessed carefully and dispassionately,
and to warn him of the adverse consequences that can flow from
plea bargaining. 9
In this situation defense counsel can usually bide his time. Agree-
ments with prosecutors are available, if the conditions are satisfac-
tory, to virtually every defendant. They come in many sizes, shapes,
and styles, and they are made at all stages of the process: at the
beginning of an investigation, after indictment, in the midst of a
trial, or even after a defendant has begun to serve a sentence.
A defendant who has information valuable to the prosecutor can
afford to sit tight rather than negotiate immediately. This requires
considerable nerve on the part of counsel, particularly when prose-
cutors call the defendant into their office and tell him he is in grave
trouble or accuse him of being a liar. Often they hint that they may
be charmed by his cooperation. Prosecutors lecture that the first
people to make deals will get the best deals. The corollary, of course,
20
is that there will come a time when no deals will be offered.
It is not only the defendant with valuable information who may
be able to strike a favorable bargain. Although the prosecutor's
natural inclination is to deal with the small person in order to reach
the larger culprit, understandings may also be reached with the
latter offender. This may be necessitated by technical problems in
the case, or because the government is uncomfortable with some of
its witnesses. Where there are multiple defendants, the prosecutor
may want to get the most prepared or effective defense lawyer out
of the case. In these instances, bargains are made exclusively on a
litigation hazard basis and do not include a defendant's cooperation
as an element.

19. See note 17 supra,

20. Prosecutors like to talk in metaphors, such as: "The boat is leaving. It's filling up.
Those who get aboard now receive a discount on their tickets and a seat in first class. When
the boat is full, it'll leave the dock and everybody left behind will get the shaft." Sometimes
the metaphor is varied, e.g., "The train is leaving the station," or "The paramutual window
is closing." The defendant may easily be unnerved by such references.
As a humorous aside, one of the important witnesses who cooperated in the Spiro Agnew
investigation revealed that when he expressed fear at being left on the dock, his lawyer told
him, "You can wait-with the heavy luggage you have, the boat will come back to get you."
19771 Principles of Plea Bargaining

Ultimately, deciding when to deal is a function of practical, legal,

and visceral considerations. From a defense point of view, the best
deals are usually made when the prosecution comes forward first.
BARGAINING MECHANICS

Certain unavoidable, perhaps immutable, considerations moti-

vate prosecutors in their negotiations to induce guilty pleas. Diffi-
culties with the case, such as lack of proof, missing witnesses, length
of a trial and other similar considerations often dictate the decision
to bargain. Before making a plea offer, a good prosecutor evaluates
the nature of the offense, whether or not any personal injuries were
sustained by the victim, and whether any weapons were used in the
commission of the crime. Prosecutors normally will not negotiate
until they have checked to see if the defendant has any prior trans-
gressions; for this they usually consider convictions and cases that
were disposed of in other ways.
Several other factors are also important. For example, the age of
the defendant will be a substantial variable in determining whether
he will benefit from any rehabilitation measures which might be
arrived at through a guilty plea. The degree of culpability of the
defendant is also important. Whether he was the principal or moti-
vating actor in the crime or merely an aider or abetter, whether he
acted out of sheer criminality, whether he suffered from a mental
disorder at the time the crime was committed, whether he has been
cooperative with the police, and whether he exhibited a tendency
toward contrition or rehabilitation are all elements taken into con-
sideration by the prosecutor in evaluating plea negotiations.
In most instances, the police officer involved in the case will be
consulted. The effect of a plea upon the continuing relationship
between the prosecutor's office and the police department is a sig-
nificant factor to be weighed by the prosecutor. Defense counsel, in
some cases, may have greater difficulty in persuading a policeman
to ratify a deal than in obtaining the acquiescence of the prosecutor.
With few exceptions, the prosecutor surrenders most in plea bar-
gaining. He recognizes that an overly lenient deal will subject him
to subsequent media criticism, possible repudiation from the judge,
and accusations by the public that he frustrated society's interest
in seeing prosecution to the fullest extent of the law.
General policy decisions aside, many prosecutors follow basic
rules of practice, such as:
1) Never discuss a plea of guilty with defense counsel unless he
has signed his appearance for the defendant. If two lawyers repre-
sent one defendant, insist on the presence of both.
 Loyola University Law Journal [Vol. 9
2) If you do not know counsel, or have no confidence in him, do
not discuss the case in the absence of another prosecutor or police
officer.
3) Always prepare a memorandum of plea discussions.
4) Where the defense is seeking a reduction of the charge, at-
tempt to have the new charge reflect the essential facts of the case
so that the criminal record will be reasonably informative if prosecu-
tion for another crime occurs in the future.
5) Always make an assessment of how much of the case to reveal
before discussing a plea. To some extent, the degree of revelation
will depend on the integrity of defense counsel.
6) Where multiple defendants are involved, speak with counsel
for all before entering into an agreement with any one of them.
When less than all defendants wish to plead, insist on a stipulation
that shows the criminal participation of those defendants, or else
defer sentencing.
7) Where one defendant is to stand trial and another is to plead
guilty, differences in sentences must be justified, at least in part,
by their respective roles in the crime or by their past records. Fur-
thermore, negotiations with one defendant may limit the range of
dispositions for the co-defendants.
8) Victims should always be kept informed. They usually accept
reasonable explanations for what has happened in their case. Where
the crime is against the person, the individual involved, as well as
the witnesses, should be consulted personally. Most prosecutors will
not proceed with the plea until the complaining witness has been
notified and has been given an opportunity to be present. Where the
crime is against property, the prosecutor will probably strive to
obtain restitution.
From the defendant's point of view, an awareness of these prac-
tices is essential. Additionally, the defense lawyer must have the
same grasp on the facts of the case as he would if the case were to
be tried. He must know its strengths and weaknesses, and he must
know where the prosecution's case is vulnerable. Counsel must
gauge both the seriousness of the offense and his client's age and
prior convictions-facts that will be relevant at a sentencing hear-
ing. The elements of the offense charged and the potential sentence
exposure must also be known.
To be effective, the defense lawyer needs to convince the prosecu-
tor that he will not be intimidated. He must convey the feeling that
he can and will try the case if satisfactory plea arrangements cannot
be reached. Counsel should leave the prosecutor with the impression
that a plea will deprive him of the most interesting part of the
case-the trial.
Often counsel is limited in how far he is authorized to go in a
 19771 Principles of Plea Bargaining

bargain. If so, the government should be made aware of these limita-

tions in unmistakable terms. As is true with good prosecutors, de-
fense lawyers should be careful about how much of their case to
reveal during plea negotiations. A corollary rule is that the attorney
must accurately represent his client's potential for assistance. When
trading information, he must be careful not to overstate that poten-
tial.
Prosecutors are driven to make deals as tough as possible in order
to make witnesses seem more credible as well as to sustain their own
personal considerations. Like any attorney, he deals out of self-
interest, whether it be to close a weak case, to obtain a key witness,
or just to make the job easier. Counsel's task is to identify what the
prosecutor is really seeking.
For the defendant, plea bargaining is usually the last alternative,
following consideration of two basic variables. First, the decision to
plead involves a determination that the case cannot be won under
any circumstances. Second, it involves a defendant who seeks the
certainty of disposition as soon as possible, rather than face uncer-
tainty for an indefinite period. This is why counsel should obtain the
defendant's consent before any approaches are made to the prosecu-
tors, and why the defendant should be advised every step of the way.
JUDICIAL PARTICIPATION

While negotiations are invariably conducted between defense

counsel and prosecutor, one cannot lose sight of the role of the judge.
Somehow, before the defendant surrenders his fundamental rights
to jury trial, confrontation of witnesses, and other constitutional
protections, a reading should be taken of the judge's probable atti-
tude. Although the bargain is with the prosecutor, the objective is
acceptance by the court. Both counsel and prosecutor share the
determination to make an agreement the court will honor.
Practices and attitudes of local judges toward their role in the
bargaining process vary. Some merely accept or reject the prosecu-
tor's recommendations passively, without any advance indication.
Others actively intervene in the negotiating stage to encourage dis-
position, and may go so far as to indicate their view of sentencing
before entry of a plea.',
To clarify and regulate plea discussions in federal court, Rule
11(e)(1) of the Federal Rules of Criminal Procedure was enacted,
categorically stating that "[t]he court shall not participate in any

21. See, e.g., Brown v. Peyton, 435 F.2d 1352 (4th Cir. 1970); United States ex rel. Elksnis
v. Gilligan, 256 F. Supp. 244 (S.D.N.Y. 1966).
 Loyola University Law Journal [Vol. 9
such discussions. 2 2 The commentaries leave no doubt that the pur-
pose of the rule is to prevent the disposition judge from taking any
part whatsoever in pre-trial discussions or communications regard-
ing sentencing." However, the rule does state that if a plea agree-
ment is reached, its disclosure is required to be on the record and
in open court, or on a showing of cause, in chambers, at the time
the plea is offered. 24 At that point the court will notify the parties
of its acceptance or rejection of the agreement, or it will defer its
decision until there is an opportunity to consider the pre-sentence
5
2
report.
Of course, defendants and their lawyers always want to know the
judge's attitude before entering a plea. Many judges have agreed,
theorizing that pre-plea revelation of sentence is not the kind of
disclosure that is the equivalent of "discussion" within the meeting
of Rule 11; rather, it provides the government and defense counsel
with additional data to be used in reaching an authorized plea ar-
26
rangement.
That attitude was recently repudiated by the Second Circuit in
United States v. Werker.2 In Werker, two bank robbery defendants

22. Federal Rule of Criminal Procedure 11(e)(1) provides:

The attorney for the government and the attorney for the defendant or the defen-
dant when acting pro se may engage in discussions with a view toward reaching an
agreement that, upon the entering of a plea of guilty or nolo contendere to a charged
offense or to a lesser or greater offense, the attorney for the government will do any
of the following:
(A) move for dismissal of other charges; or
(B) make a recommendation, or agree not to oppose the defendant's request
for a particular sentence, with the understanding that such recommendation
or request shall not be binding upon the court; or
(C) agree that a specific sentence is the appropriate disposition of the case.
The court shall not participate in any such discussions.
See also ILL. REV. STAT. ch 110A, § 402(d)(1) (1970).
23. FED. R. CRM. P. 11(e)(1) (Advisory Committee Notes).
24. FED. R. CRIM. P. 11(e)(2).
25. Id.
26. "To deprive the attorney of the opportunity to talk to the judge about a guilty plea
before a defendant has made up his mind to plead guilty, would deprive him of one of the
most valuable tools of his defense." Brown v. Peyton, 435 F.2d 1352, 1357 (4th Cir. 1970).
Most commentators have criticized judicial participation. See, e.g., ABA PROJECT ON STAN-
DARDS FOR CRIMINAL JUSTICE, STANDARDS RELATING TO PLEAS OF GUILTY § 3.3(a) (1968); Gal-
lagher, JudicialParticipationin Plea Bargaining:A Search for New Standards, 9 HARV. C.R.-
C.L. L. REV. 29 (1974); Ferguson, The Role of the Judge in Plea Bargaining, 15 CraM. L.Q.
26 (1972). But see Hoffman, Plea Bargainingand the Role of the Judge, 53 F.R.D. 499 (1971);
Comment, New FederalRule of CriminalProcedure11(e): Dangers in Restricting the Judicial
Role in Sentencing Agreements, 14 AMER. CRIM. L. REv. 305 (1976); Comment, Official In-
ducements to Plead Guilty: Suggested Morals for a Marketplace, 32 U. CM. L. REv. 167
(1964). For a comprehensive analysis covering both sides of the argument, see Altschuler, The
Trial Judge's Role in Plea Bargaining, Part1, 76 COLUM. L. REv. 1059 (1976).
27. 535 F.2d 198 (2d Cir. 1976).
 19771 Principles of Plea Bargaining

sought unsuccessfully to obtain from the assistant state's attorney

an agreement on a recommendation for a minimum ten year sent-
ence instead of the twenty-five years provided by statute. In accord-
ance with the policy of that particular prosecutor's office, the assist-
ant refused to discuss any possible recommendations concerning
sentence in return for a plea of guilty.2 At a pre-trial conference,
defense counsel informed the judge of the government's refusal, and
requested that he indicate whether a greater than ten year sentence
would be imposed following a guilty plea. The judge requested, and
later obtained, the defendant's permission to inspect a pre-sentence
report. 2 The judge further indicated that he would advise counsel
of the sentence to be imposed if the defendant were to plead guilty,
and would announce it at a later conference. In the interim, the
government filed a petition for mandamus, which the court of ap-
peals granted, concluding that "fair and expeditious disposition of
criminal cases is best achieved by the trial judge completely ab-
staining from any participation in any discussions or communica-
tions regarding sentence, except as provided in Rule 11 ... .
Whether all federal judges will adhere to the Second Circuit's inter-
3
pretation of Rule 11(e)(1) is uncertain. '
FURTHER CONSIDERATIONS

Various other intricacies often dictate the decision to plead. In

federal prosecutions, particularly public corruption or conspiracy
cases where the government has an obvious need for insider wit-
nesses, a defendant declining to become a cooperative witness can
still be forced to testify under judicially imposed "use immunity." 2

28. Id. at 200.

29. This was in accordance with Federal Rule of Criminal Procedure 32(c)(1), which
provides, in pertinent part:
The [presentence] report shall not be submitted to the court or its contents
disclosed to anyone unless the defendant has pleaded guilty or nolo contendere or
has been found guilty, except that a judge may, with the written consent of the
defendant, inspect a presentence report at any time.
30. 535 F.2d at 205.
31. See generally ABA PRojECr ON STANDARDS FOR CRIMINAL JUsTIcE, STANDARDS RELATING
TO PLEAS OF GUILTY, § 3.3(a) (1968); NATIONAL ADVISORY COMMITTEE ON CRIMINAL JUSTICE
STANDARDS AND GOALS, TASK FORCE REPORT ON COURTS, § 3.1 (1973). The Alaska Supreme
Court recently held that the trial judge had no place in state plea negotiations. State v.
Buckalew, 561 P.2d 289 (Alaska 1977). The court cited four reasons: (1) judicial participation
creates an impression in the defendant's mind that he will not receive a fair trial in front of
this judge; (2) judicial participation makes a determination on plea voluntariness difficult;
(3) promising a certain sentence is inconsistent with the intended use of a pre-sentence report;
and (4) the risk of not going along with the disposition may seem so great to the defendant
that he will be induced to plead guilty even when innocent. Id. at 291.
32. 18 U.S.C. § 6002 (1970):
Whenever a witness refuses, on the basis of his privilege against self-
 Loyola University Law Journal [Vol. 9
Thus, an attorney must tell his client that while it may sound good
to say that he refused to compromise himself to the authorities, the
government has the last card to play.
When assessing the defendant's potential value to the prosecu-
tors, defense lawyers recognize that the traditional technique for
building an investigation is to work from the bottom up. Put simply,
the prosecutor gets hard evidence against the low level people and
either offers them immunity in exchange for their cooperation or
accepts a plea to minor charges. Their testimony is used against the
middle level people, who are themselves used to obtain trial wit-
nesses against the top conspirators. Therefore, it is important to
determine where the defendant is positioned upon that ladder since
the appropriateness of a particular disposition can only be evalu-
ated against the backdrop of the larger investigative picture.
A case in point is John Dean. 3 Early in the Watergate case, the
Special Prosecutor's Office decided that because of his extensive
involvement in the cover-up, they could offer Dean nothing less
than a plea to a felony. Immunity was out of the question regardless
of the importance of securing his cooperation and testimony against
those who might prove more culpable.
There were two other possibilities. The government could have
tried Dean, and then used him after his conviction as a witness
against the others. This would have meant a substantial delay in
prosecuting the higher officials. Alternatively, the prosecutors could
have indicted Dean and his superiors simultaneously but sepa-
rately, and then delayed Dean's trial. They could have given him
testimonial immunity, compelled his testimony against the others,
and brought him to trial later. This approach had obvious disadvan-
tages. Dean would have been an easy target on cross-examination

incrimination, to testify or provide other information in a proceeding before or

ancillary to-
(1) a court or grand jury of the United States,
(2) an agency of the United States, or
(3) either House of Congress, a joint committee of the two Houses, or a committee
or subcommittee of either House, and the person presiding over the proceeding
communicates to the witness an order issued under this part, the witness may not
refuse to comply with the order on the basis of his privilege against self-
incrimination; but no testimony or other information compelled under the order (or
any information directly or indirectly derived from such testimony or other infor-
mation) may be used against the witness in any criminal case, except a prosecution
for perjury, giving a false statement, or otherwise failing to comply with the order.
33. John Dean was an advisor to President Richard Nixon. During the 1972 Presidential
election, members of the committee to re-elect Nixon were suspected of breaking into the
National Democratic Headquarters. A conspiracy was uncovered that reached the inner circle
of the President.
19771 Principles of Plea Bargaining

since he would have told his story under immunity, and the im-
munity could have made his later conviction impossible.
Fortunately for the Special Prosecutor, the problem was solved
when Dean accepted an offer to plead guilty to a broad charge of
conspiracy to obstruct justice. This compromise relieved the prose-
cutors from an otherwise uncomfortable dilemma.
A defense attorney's recurring nightmare is the soured deal. After
bargaining with a prosecutor for a particular disposition of a case,
especially a specific sentence, there remains the uncertainty that
the court will reject the recommendations. Santobello, for example,
involved the Supreme Court's reversal of a conviction where a new
prosecutor, apparantly ignorant of his predecessor's commitment to
refrain from making a sentencing recommendation, recommended
the maximum sentence. In remanding the case to the state court,
the Court outlined two basic remedies for the disgruntled defen-
dant: (1) the specific enforcement of the agreement or; (2) defen-
dant's withdrawal of his guilty plea. 34 The Court deemed fairness to
be the basic requirement underlying every plea bargain.3 5 The plea
must be voluntary and knowing, 3 and if it is induced by a promise
or commitment by the prosecutor, the essence of those promises and
37
commitments must be fulfilled.
Relief for the promise that is not fulfilled can occur where there
is a mistake on the part of the prosecutor. In United States v.
Brown,38 the defendant entered into a bargain to plead guilty to
possession of stolen mail in return for a dismissed forgery charge.
Further, the government was to recommend that he receive a sent-
ence of three years to be served at Lorton Reformatory concurrently
with the unexpired term of another sentence. At sentencing, how-
ever, another prosecutor merely brought the bargain to the attention
of the court without making the promised recommendation. The
court thereupon sentenced the defendant to a term of four years
without mention of incarceration at Lorton.39
The Court of Appeals for the Fourth Circuit reversed, holding that
the "halfhearted" recommendation by the new prosecutor did not
comply with the terms of the bargain. 0 It made no difference that
defense counsel had earlier brought the reasons for the bargain to

34. Santobello v. New York, 404 U.S. 257, 263 (1971).

35. Id. at 261.
36. Id. See also Brady v. New York, 397 U.S. 742 (1970).
37. Santobello v. New York, 404 U.S. at 262.
38. 500 F.2d 375 (4th Cir. 1974).
39. Id. at 376-77.
40. Id. at 377.
 190 Loyola University Law Journal [Vol. 9

the attention of the trial judge. The test to be applied was an objec-
tive one: "whether the plea agreement has been breached or
not-irrespective of prosecutorial motivations or justifications for
the failure in performance."" The case was remanded for full com-
pliance with the bargain. 2 Thus, the result in the case was specific
performance of the original agreement.
If the court rejects the prosecutor's recommendation for a particu-
lar sentence, that in itself is insufficient for later relief if, at the time
the defendant's plea is entered, he is advised that the recommenda-
3
tion is not binding on the court.
However, the courts do afford relief where prosecutors make spe-
cific sentencing promises which are unfulfillable because the prose-
cutor lacked authority to do so." The leading case in this area is
United States v. I.H. Hammerman II, 15 involving one of the govern-
ment's key witnesses in a bribery case against former Vice President
Spiro T. Agnew. The witness pleaded guilty to an information
charging obstruction of the enforcement of tax liens, and signed a
written agreement with prosecutors whereby he became a govern-
ment witness. Although the agreement did not commit the United
States Attorney to make a sentence recommendation, the govern-
ment concluded that it should do so after the Vice President had
himself received a suspended sentence." To assure the court's ac-
ceptance of no incarceration, the entry of the plea was delayed until
counsel could meet with the court to hear the government's affirma-
tive argument that imprisonment would, be inappropriate. At that

41. Id. See also Miller v. State, 272 Md. 249, 322 A.2d 527 (1974) (Prosecutor violated
agreement not to comment on sentencing when he indicated his disagreement with pre-
sentence report).
42. 500 F.2d at 378.
43. See, e.g., United States v. Wagner, 529 F.2d 518 (4th Cir. 1976); United States v.
Futeral, 539 F.2d 329 (4th Cir. 1975). Most judges, however, are reluctant to reject the
prosecutor's recommendation since to do so dissuades future defendants from taking pleas
in that courtroom. This would cause an immense burden on the court, when one considers
that in some localities as high as 95% of all criminal convictions arise out of guilty pleas. ABA
PROJECT ON STANDARDS FOR CRIMINAL JUSTICE, STANDARDS RELATING TO PLEAS OF GUILiT 1-2
(Approved Draft 1968); Brady v. New York, 397 U.S. 742, 752 n.10 (1970). Nevertheless,
Albert Altschuler chronicles a misdemeanor case in Cook County, Illinois, where a prosecutor
obtained a guilty plea and testimony by promising a short sentence to run concurrently with
one already received. After the defendant performed his part of the bargain, the prosecutor
made his promised recommendation to the court. "Without a word of explanation, the judge
sentenced the defendant to a substantial jail term, to begin after the expiration of his current
sentence." Altschuler, The TrialJudge's Role in Plea Bargaining,PartI, 76 COLUM. L. REv.
1059, 1067 (1976).
44. Palermo v. Warden, 545 F.2d 286 (2d Cir. 1976); McAleney v. United States, 539 F.2d
282 (1st Cir. 1976); United States v. Frontero, 452 F.2d 406 (5th Cir. 1971).
45. 528 F.2d 326 (4th Cir. 1975);
46. Id. at 328 n.2.
19771 Principles of Plea Bargaining

meeting, the sentencing judge specifically stated that, while the

prosecutor's argument was forceful, the court was not bound by his
sentencing recommendation.
However, following the conference one of the prosecutors stated
to Hammerman's attorney his belief that the court had given the
desired indication that it would accept the government's recommen-
dation. He stated specifically that the court had given the "signal"
which counsel had been seeking. 7 Thereafter, at the arraignment,
the government officially made the affirmative recommendation
that punishment not include incarceration. Although noting that it
would give consideration to that recommendation, the court af-
firmed that it would not be bound by it. After inquiring whether
there were other agreements, understandings, or inducements, and
being told there were none, the court accepted Hammerman's guilty
plea and sentenced him to a term of eighteen months."
Hammerman appealed from the sentence, seeking either specific
enforcement of the plea bargain, including the prosecutor's assur-
ance of acceptance by the court, or in the alternative, an evidentiary
hearing on the substance of his claim. He contended that he was
misled by the prosecutor's statement into believing that the court
would accept the prosecution's recommendation. The Fourth Cir-
cuit Court of Appeals held that, even though the prosecutor lacked
the power to implement the prediction of no incarceration, his un-
fulfillable promise likely induced reliance and belief by Hammer-
man and was thus an essential element of the plea bargain.49 This
was true despite Hammerman's response at arraignment that there
were no other understandings or commitments by the government.
The court recognized that Hammerman's reasonable fear that a
truthful response might jeopardize the bargain may have produced
an answer that was false.50
Since the prosecutor's misrepresentation flawed the plea, the
court deemed withdrawal of the plea to be the appropriate relief.5
The court followed the prescribed remedy contemplated by Rule
11(e)(4) of the Federal Rules of Criminal Procedure whereby a court,
if it decides to reject the plea arrangement, must inform the defen-
dant of that fact and allow him an opportunity to withdraw the
plea.5

47. Id. at 329-30.

48. Id. at 330.
49. Id. at 330-31.
50. Id. at 331.
51. Id. at 332.
52. Federal Rule of Criminal Procedure 11(e)(4) provides:
If the court rejects the plea agreement, the court shall, on the record, inform the
 Loyola University Law Journal [Vol. 9

The risk of a broken bargain necessitates establishing some form

of a written record of the plea agreement. In Maryland federal court
for instance, the prosecutor routinely recites the terms of the bar-
gain in a letter to defense counsel. In some jurisdictions, counsel or
the court may prepare and utilize forms for that purpose. In others,
defense counsel states the bargain orally in open court and has it
recorded by the court reporter. No matter how the record is made,
the important consideration is preservation of the specific details of
the bargain for appellate review in case of direct or collateral at-
53
tack.
CONCLUSION

There is one final consideration. While there are no formal ethical

guidelines for either the prosecutor or defense counsel regarding the
substance of plea bargaining,54 an advocate must deal honestly and
without the usual tendency to exaggerate. In negotiating sessions of
any kind, it is difficult for attorneys to avoid exaggerations. Prose-
cutors tend to overstate the culpability of a defendant while defense
attorneys tend to minimize it. The conventional wisdom is that plea
bargaining is a game; however the excesses of advocacy should not
lead one to twist the rules to suit the situation. During negotiations,
the attorney's reputation for honesty and fair dealing is as much at
risk as the defendant's fate or freedom. While it is difficult for
attorneys not to succumb to "bluffing," the successful advocate is
the one who bargains honestly, knowing that if he deceives the
court, makes the prosecutor look like a fool, or misleads defense
counsel, the unprofessional conduct is likely to be remembered by
all.

parties of this fact, advise the defendant personally in open court, or, on a showing
of good cause, in camera, that the court is not bound by the plea agreement, afford
the defendant an opportunity to then withdraw his plea, and advise the defendant
that if he persists in his guilty plea, or plea of nolo contendere the disposition of
the case may be less favorable to the defendant than that contemplated by the plea
agreement.
53. People v. West, 3 Cal. 3d 595, 610, 477 P.2d 409, 418, 91 Cal. Rptr. 385, 394 (1970),
suggests four possible methods of incorporating the plea bargain as part of the record: (1) the
bargain can be related orally and recorded by the court reporter; (2) the bargain can be set
forth by the clerk in the minutes of the court; (3) the parties can file a written stipulation
stating the terms of the bargain; or (4) forms may be utilized to record the bargain.
54. See ABA PROJECT ON STANDARDS FOR CRIMINAL JUSTICE, STANDARDS RELATING TO THE
PROSECUTION FUNCTION AND THE DEFENSE FUNCTION (1970). See also Brady v. United States,
397 U.S. 742, 748 (1970) and Von Moltke v. Gillies, 332 U.S. 708, 721, 725 (1948), which
address the need for defense counsel to be certain that the defendant's choice of plea is made
with full knowledge and that counsel have no interest that would conflict with those of this
client.