The Massachusetts Supreme Judicial Court (“SJC”) has issued extensive revisions to the rule governing criminal pleas, which will take effect on May 11, 2015. As I explain below, while the changes address a narrow issue, they impact criminal defendants because they further constrain what little judicial discretion is left in sentencing and reinforce the false premise that the prosecution and the criminal defendant enter into a plea bargain on equal terms.
Rule 12 of the Massachusetts Rules of Criminal Procedure governs judicial procedure for accepting a guilty plea and sentencing a defendant who has pleaded guilty. A criminal defendant may plead guilty to a charged offense with or without a plea agreement with the prosecution. However, when a criminal defendant decides to “plead out” or “take a deal,” that typically refers to the defendant agreeing to plead guilty in exchange for the prosecutor reducing the charge or requesting that the judge impose a recommended sentence or type of punishment, or both. If the plea agreement contains a recommended sentence, the defendant can join in the recommendation or reserve the right to object and request a lesser sentence or a different type of punishment.
The revision to Rule 12 more specifically delineates the judge’s consideration of guilty pleas pursuant to plea agreements in which there is a charge concession by the prosecutor and a recommended sentence agreed to by the parties. Under the current rule, where the Commonwealth and the defendant have entered into a plea agreement that includes a sentencing recommendation, the rule specifically states that such recommendation is made “with the specific understanding that the recommendation shall not be binding on the court.” Mass. R. Crim. P. 12(b)(1)(B) (emphasis added). Should the judge decide to impose a harsher sentence on the defendant, the judge must inform the defendant that it intends to exceed the terms of the plea agreement and give the defendant the right to withdraw the plea before sentencing. Mass. R. Crim. P. 12(c)(2)(A) & (c)(6).
Under the current rule, there is no analogous remedy for the rare situation in which the judge imposes a lesser sentence on the defendant than the recommended sentence agreed to by the parties. The SJC affirmed this reading of Rule 12 in its decision in Commonwealth v. Dean-Ganek, 461 Mass. 305 (2012). In Dean-Ganek, the Court held that the sentencing judge could impose a sentence less severe than the sentence recommendation in the plea agreement where the Commonwealth agreed to reduce an armed robbery charge to larceny and agreed to a specific sentence, including jail time. The Court also concluded that if the guilty plea were vacated at the Commonwealth’s request and over the defendant’s objection, the Commonwealth would be precluded from further prosecution of the defendant on the charge at issue due to principles of double jeopardy. In reaching its conclusion, the Court recognized that the rule as it is now written “protects a defendant from the risk that the judge will exceed the prosecutor’s recommendation, but does not protect the Commonwealth from the risk that the judge will impose a sentence below the prosecutor’s recommendation.” Dean-Ganek, 461 Mass. at 309. Notably, the defendant in Dean-Ganek was a 19-year old high school student who had no prior criminal record, and suffered from bipolar disorder, Asperger’s syndrome, and attention deficit disorder. Clearly, the sentencing judge took these sympathetic factors into account when determining that jail time was not warranted.
The 2015 revision to Rule 12 is a direct response to the Court’s decision in Dean-Ganek. The amended rule now protects the Commonwealth from the risk that a lower sentence may be imposed with certain plea agreements. The SJC revamped the rule to contain separate procedures for pleas without an agreement, pleas with an agreement that do not include both a specific sentence and a charge concession, and pleas with a specific sentence and a charge concession (the situation in Dean-Ganek). Under the third scenario, the new rule disposes of the language indicating that the sentencing recommendation in a plea agreement “shall not be binding on the court.” Under the amended rule, when the prosecutor and the defendant enter into a plea agreement that includes both a specific, agreed-upon sentence and a prosecutorial charge concession and the judge accepts the agreement, the judge must impose the agreed-upon sentence.
Three SJC justices (Lenk, Gants, and Hines) opposed the revised rule. Their opposition is not surprising. As suggested by Justice Lenk in her written opposition, the revised rule overly complicates a long-standing procedure with which prosecutors, defense attorneys, and judges have gained familiarity over the years. Furthermore, as Justice Lenk also recognized, the new rule further constrains judicial discretion, albeit in a narrow set of circumstances.
The revision is also unwelcome for another reason: it reinforces the false premise that the prosecution and the criminal defendant are equal parties to an agreement.
The current rule recognizes, at least implicitly, that a criminal defendant is in a much weaker bargaining position than the prosecutor and therefore should get a benefit on the rare occasion that a judge believes the recommended sentence is unjust and decides to impose a lesser sentence. The prosecution typically knows much more about its own case before defense counsel even gets involved, leading to a vast information disparity and lack of transparency between the parties. Prosecutors have virtually unfettered discretion in charging decisions (subject to the very low bar of satisfying probable cause in a complaint in district court or in an indictment by a grand jury in superior court). Armed with one-sided information and powerful charging authority, prosecutors often seek the most serious charges and multiple counts against a defendant, whether those charges fit the severity of the crime or not, in order to coerce the defendant into taking a plea deal instead of risking a worse outcome at trial. Because many criminal charges require judges to impose mandatory minimum sentences, prosecutors through their charging decisions also have significant power over what sentence will ultimately be imposed on the defendant.
A criminal plea bargain is not a contract between two equal parties, but instead is an instrument of coercion in which one party, the prosecution, has all the information and power, and the other party, the defendant, bears all the risk. On the rare occasion that a judge determines that the agreed-upon sentence is unjustly high and does not fit the crime or the specific characteristics of the defendant (as the judge recognized in Dean-Ganek), it is fair and reasonable for the judge to issue a lesser sentence, effectively penalizing the prosecution for coercing the defendant into an unfair deal. With the amended rule, the judge’s only recourse is to either accept an unjust sentence or reject the plea agreement altogether and let the defendant take his chances at trial.
The one possible silver lining in the new rule is that it also more formally provides for judicial participation in plea negotiations at the request of a party provided that such discussions are recorded. In recent months, the issue of judicial participation in the plea bargaining process has been hotly debated. Many commentators, particularly those with criminal defense backgrounds, are highly skeptical that it will lead to any success. However, Jed Rakoff, a federal judge and a former prosecutor, has advocated piloting such a program in the federal system, pointing to Connecticut’s successful model. If a defendant believes he is before a judge who has a sympathetic ear, it may be worthwhile to take advantage of this new provision in Massachusetts.