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24 Ann. Rev. Crim. Proc. 1000 (1995)
Guilty Pleas

handle is hein.journals/anrvcpr24 and id is 352 raw text is: 1000 THE GEORGETOWN LAW JOURNAL [Vol. 83:839 GUILTY PLEAS Plea Bargaining. There is no constitutional right to plea bargain.1322 Neverthe- less, the Supreme Court recognizes plea bargaining as an essential component of the criminal justice system23 and the Constitution requires a prosecutor to comply with equal protection requirements in conducting plea bargaining.1324 Rule 11(e) of the Federal Rules of Criminal Procedure governs the conduct of the government and the defendant1325 during plea negotiations.1326 Rule 11(e)(1) authorizes plea agreements under which a defendant pleads guilty to 1322. Weatherford v. Bursey, 429 U.S. 545, 561 (1977); see also Russell v. Collins, 998 F.2d 1287, 1294 (5th Cir. 1993) (prosecutor has discretion to enter plea bargains with some defendants and not others), cert. denied, 114 S. Ct. 1236 (1994); U.S. v. Mabry, 3 F.3d 244, 250 (8th Cir. 1993) (defendant has no right to plea bargain and prosecutor need not bargain if she prefers to go to trial), cert. denied, 114 S. Ct. 1403 (1994); Coleman v. Risley, 839 F.2d 434, 450-51 (9th Cir. 1988) (state not obligated to accept defendant's offer to plea bargain), cert. denied, 493 U.S. 944 (1989); cf Mabry v. Johnson, 467 U.S. 504, 507-08 (1984) (plea bargain merely contract; only guilty plea and subsequent deprivation implicate Constitution); U.S. v. Gonzalez,. 918 F.2d 1129, 1134 (3d Cir. 1990) (prosecutor may condition plea bargain on codefendants accepting guilty plea package without violating due process when defendant retained right to jury trial because prosecutor under no duty to bargain), cert. denied, 499 U.S. 982 (1991); U.S. v. West, 2 F.3d 66, 69 (4th Cir. 1993) (plea bargain standing alone is mere executory agreement without constitutional signifi- cance until embodied in judgment of court). 1323. Santobello v. New York, 404 U.S. 257, 260 (1971). 1324. Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (prosecutor's decision to offer plea bargain may not be deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification (quoting Oyler v. Boles, 368 U.S. 448, 456 (1962))). Compare U.S. v. Bernal-Rojas, 933 F.2d 97, 99 (1st Cir. 1991) (prima facie equal protection claim possible but not demonstrated by evidence of consistent pattern of unequal administration of the law where U.S. Attorney failed to plea bargain with Columbian nationals) and U.S. v. Redondo-Lemos, 27 F.3d 439, 442 (9th Cir. 1994) (prima facie case of intentional discrimination in plea bargaining on basis of gender allowed but successfully rebutted by government's gender-neutral explanations) with U.S. v. Sustaita, 1 F.3d 950, 952 (9th Cir. 1993) (equal protection challenge of selective prosecution not allowed when claim based on arbitrariness rather than on suspect characteristics such as race, religion, or exercise of constitutional rights). 1325. The court is prohibited from participating in plea negotiations. FED. R. CRIM. P. 11(e)(1); see U.S. v. Miles, 10 F.3d 1135, 1138-40 (5th Cir. 1993) (judge impermissibly intervened when, after rejecting proposed plea agreements, he suggested additional sentences of 20 and 40 years beyond those contemplated in original agreement); U.S. v. Barrett, 982 F.2d 193, 195 (6th Cir. 1992) (judge impermissibly intervened when he stated it was his opinion that defendant had no case and that he was unsurprised the investigator had not located any alibi witnesses); U.S. v. Anderson, 993 F.2d 1435, 1438-39 (9th Cir. 1993) (judge impermissibly intervened when he threatened to forbid government to accept plea to fewer than all 30 counts; rule 11 proscribes any court participation in plea bargaining discussions regardless of whether prejudice shown); U.S. v. Corbitt, 996 F.2d 1132, 1135 (11th Cir. 1993) (per curiam) (judge impermissibly intervened by stating during plea negotiations that defendant and codefendants would receive fairly high sentence if they went to trial and were found guilty). Nevertheless, this prohibition may not be absolute. See U.S. v. Olesen, 920 F.2d 538, 541 (8th Cir. 1990) (court prohibited from intervening in plea agreement process absent showing of fraud, and prohibited from modifying plea agree- ment after unconditionally accepting it). 1326. FED. R. CRIM. P. 11(e). Once negotiations end and a plea contract is formed, rule 11 safeguards no longer apply. U.S. v. Knight, 867 F.2d 1285, 1288 (11th Cir.), cert. denied, 493 U.S. 846 (1989). When discussions do not constitute plea bargaining, rule 11 does not apply. See U.S. v. Sebetich, 776 F.2d 412, 421 (3d Cir. 1985) (statements made to person defendant could not have reasonably believed authorized to plea bargain not inadmissible under rule 11(e)), cert. denied, 484 U.S. 1017 (1988); U.S. v. Jorgensen, 871 F.2d 725, 730 (8th Cir. 1989) (statements made to officers at FBI offices when defendant not in custody not part of plea bargaining and thus not inadmissible under rule 11(e)).

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