Should Judges Participate in Plea Negotiations?: Comparing Judge Rakoff's Proposal to My Own

Today, the New York Times published an op-ed by JaneAnne Murray, a Practitioner in Residence at the University of Minnesota School of Law, entitled, "Why Adnan Syed of ‘Serial’ Should Have Pleaded Guilty." I can't say that I agree that Adnan should have pleaded guilty, but I do agree with the plea bargaining proposal mentioned in the op-ed. In fact, it's the same argument I made in back in 2013 in my article, Anchors Away: Why the Anchoring Effect Suggests that Judges should be able to Participate in Plea Discussions, 54 B.C. L. Rev. 1667 (2013).

The New York Times piece notes that

A New York federal judge, Jed Rakoff, has proposed one reform: plea-bargaining conferences. In sealed proceedings, judges would examine each party’s position and recommend a nonbinding plea bargain. The plan needs to be refined so it allows a defendant to opt out if he publicly acknowledges he understands what he is giving up. The proposal, however, provides a layer of review to protect the innocent from being pressured into pleading guilty, while potentially encouraging fairer plea bargains through the oversight of a neutral party. It creates a record of plea-bargaining efforts, so there can be no uncertainty as to whether an offer was requested or ignored. Finally, it might help guilty people make a more informed choice about how to resolve their cases.

Murray is referencing Judge's Rakoff's piece, "Why Innocent People Plead Guilty," from The New York Review of Books last November. In relevant part, Judge Rakoff proposed the following:

I am driven, in the end, to advocate what a few jurisdictions, notably Connecticut and Florida, have begun experimenting with: involving judges in the plea-bargaining process. At present, this is forbidden in the federal courts, and with good reason: for a judge to involve herself runs the risk of compromising her objectivity if no bargain is reached. For similar reasons, many federal judges (including this one) refuse to involve themselves in settlement negotiations in civil cases, even though, unlike the criminal plea bargain situation, there is no legal impediment to doing so. But the problem is solved in civil cases by referring the settlement negotiations to magistrates or special masters who do not report the results to the judges who handle the subsequent proceedings. If the federal rule were changed, the same could be done in the criminal plea bargain situation.

As I envision it, shortly after an indictment is returned (or perhaps even earlier if an arrest has occurred and the defendant is jailed), a magistrate would meet separately with the prosecutor and the defense counsel, in proceedings that would be recorded but placed under seal, and all present would be provided with the particulars regarding the evidence and issues in the case. In certain circumstances, the magistrate might interview witnesses or examine other evidence, again under seal so as not to compromise any party’s strategy. He might even interview the defendant, under an arrangement where it would not constitute a waiver of the defendant’s Fifth Amendment privilege against self-incrimination.

The prosecutor would, in the meantime, be precluded from making any plea bargain offer (or threat) while the magistrate was studying the case. Once the magistrate was ready, he would then meet separately with both sides and, if appropriate, make a recommendation, such as to dismiss the case (if he thought the proof was weak), to proceed to trial (if he thought there was no reasonable plea bargain available), or to enter into a plea bargain along lines the magistrate might suggest. No party would be required to follow the magistrate’s suggestions. Their force, if any, would come from the fact that they were being suggested by a neutral third party, who, moreover, was a judicial officer that the prosecutors and the defense lawyers would have to appear before in many other cases.

I'm definitely on the same page as Judge Rakoff. Here's the abstract from my Boston College article:

The "anchoring effect" is a cognitive bias by which people evaluate numbers by focusing on a reference point—an anchor—and adjusting up or down. Unfortunately, people usually do not sufficiently adjust away from their anchors, so the initial choice of anchors has an inordinate ef- fect on their final estimates. More than ninety percent of all criminal cases are resolved by plea bargains. In the vast majority of those cases, the prosecutor makes the initial plea offer, and prosecutors often make high initial offers. Assuming that the prosecutor’s opening offer operates as an anchor, nearly all criminal caes in this country produce unjust results based upon an unconscious cognitive bias. This Article proposes a solution that most jurisdictions have rejected: Judges should be able to participate in the plea discussions. Federal Rule of Criminal Procedure 11(c)(1) and most state counterparts strictly preclude judges from participating in plea discussions, but a few jurisdictions permit judicial participation. In these jurisdictions, plea discussions commence with the prosecution and defense laying out their cases and asking for particular dispositions and the judge responding with the expected post-plea sentence. This Article contends that this type of judicial participation would reduce the anchoring effect. 

-CM