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May 9, 2002


The opinion of the court was delivered by: Jack B. Weinstein, Senior District Court Judge.

I. Introduction
The questions posed are whether acceptance of a plea of guilty and a departure downward in sentencing were appropriate in this substantial money laundering case. Serious factual and legal issues are presented by evidence of the defendant's long pretrial incarceration under onerous conditions, the government's control over funding for her counsel and the threat of much greater punishment without a plea.
This case illustrates the danger of due process violations by intensive pressure on defendants to plead guilty because of lengthy pretrial incarcerations and the offer of advantageous deals for lesser terms of imprisonment. The stick and carrot — largely controlled by prosecutors — produces a danger of excessive coercion of a defendant and undue pressures on defense counsel to avoid trial. It requires particularly close supervision by the court to ensure voluntariness of the plea. In evaluating the need for sentencing departures the unusual tensions some defendants face while in custody awaiting trial also necessitate consideration.
The virtual elimination of federal criminal trials, substituting administrative decisions not to prosecute or pleas of guilty, has substantially changed our federal criminal law system. Increased prosecutorial discretion and power have raised the percent of guilty pleas from 86% of all federal convictions in 1971 to 95% in 2001. Discretion not to prosecute is widely exercised. Enhancement of control of sentencing by the prosecutor as a result of sentencing guidelines and minimum sentences has increased the government's power to coerce defendants. There has been a change from the paradigmatic concept of investigation and accusation by the government of almost all persons believed to have committed crimes, trial by jury with a strong role for defense counsel, and discretion in sentencing by the court, to a system sharply reducing the role of defense counsel, the jury and the judge, and whatever protections they can afford a defendant.
Defendant Hebroni and codefendants were charged with using jewelry businesses in Panama to launder some $10,000,000 of drug money. The prosecution was controlled by the Narcotics and Dangerous Drugs section of the United States Department of Justice, from Washington, D.C., rather than by the district's United States Attorney.
After lengthy pre-trial proceedings, drawn out over a period of more than a year and a half largely because of failure of the government to produce the huge amount of documents seized by the government of Panama; successive grants of bail by the trial court which were overturned on appeal; and strong government opposition to payment of defense counsel from defendant's known assets, all of which had been seized; defendant and the government entered into a plea agreement. It required defendant to be incarcerated for a term of somewhere between 33 and 41 months under the guidelines, and to give up all her assets. Without such an agreement, upon conviction she would have faced a prison sentence of 151 to 188 months and possibly more, based on a level of 34 or higher. See U.S. Sentencing Guidelines Manual §§ 2S1.1(b)(1) & 2S1.1(b)(2)(I) (2001) (hereinafter "Guidelines Manual").

The court entertained doubts about 1) defendant's capacity and desire to sign the plea agreement and 2) a possible conflict of interest of defense counsel in recommending a plea. Accordingly, the defendant was ordered to undergo a psychiatric evaluation to determine her fitness. Additional defense counsel was appointed to ensure that defendant's rights were fully protected and that she was being appropriately advised.

Ultimately defendant's plea was accepted by the court. While defendant agreed not to seek a downward departure, the agreement did not limit the court's independent authority to consider such a departure. On the basis of the presentence report, briefs by both sides and sentencing hearings, the court departed downward 2 levels and sentenced the defendant to a total of 27 months in prison and forfeiture of all her personal and business assets, a fine, and a term of supervised release of three years, during which time defendant may not engage in the jewelry or rare metals business, nor conduct any business in Panama.
II. Facts

A. Background

Defendant Hebroni is a citizen of Israel domiciled in Panama. She is forty-nine years old and recently widowed. Her immediate family is her 6-year-old son, now a resident of Israel, who was conceived after many years of medical intervention. Defendant appears to be an intelligent woman, though physically frail.
The court was presented with no admissible evidence. From the contentions of government counsel and concessions by defendant, the facts can be briefly summarized as follows:

Co-defendant Speed Joyeros, S.A., is a jewelry business fully owned by defendant Hebroni. Speed Joyeros, S.A., engaged in the sale of gold and silver jewelry and precious metals to many retail and wholesale customers throughout Central and South America and in Europe and the Middle East. Defendant's business was among the most successful jewelry businesses in the Colon, Panama Free Zone, with revenues of $155 million in 1998 and $105 million in 1999.

She received cash, checks and electronic money transfers in a money laundering scheme. A primary modus was to sell jewelry to drug lords, knowing that it was being paid for with drug money, thus allowing them to convert dirty money into glistening clean jewelry. Financial institutions in the United States and other countries were employed in these conversions.
Co-defendant Argento Vivo S.A. is a corporation controlled by defendant's brother and a named co-defendant, Eliahu Mizrahi, who has not been found. Argento Vivo, S.A. is a wholesale and retail jewelry dealer engaged in the sale of silver jewelry to retail stores located throughout Central and South America.

B. Procedural History

On September 22, 2000, Hebroni was arrested and detained on money laundering charges. She had voluntarily come to this country from Panama to defend against forfeiture proceedings commenced here against millions of dollars of her assets, mainly in Panama. Some $900,000 were in American banks. The indictment charged the defendant with five counts of washing and conspiring to wash drug money. 18 U.S.C. § 1956, 1957. A superceding indictment was filed more than a year later, on December 13, 2001, clarifying the government's legal theory.
On October 10, 2000, defendant pled not guilty. After various pretrial motions, defendant sought bail. On July 2, 2001, bail was denied by the judge previously assigned to the case.
The case lagged, with large numbers of the basic business records from Panama unavailable in this country. All the documents used by defendants in their Panamanian businesses had been seized by the government of Panama. Despite repeated attempts by the defendant to retrieve and examine these many thousands of papers in preparation for trial, they had still not been fully examined by the defense up to the time of plea.
After new bail hearings, on December 12, 2001, defendant was ordered released if she could satisfy specified conditions. The magistrate judge's hearings determined that pledged property fit the conditions set by the court. It was the court's view that the bail and other conditions would ensure that defendant could prepare for trial and that she would be present at trial. These reasons were stated orally on the record. Transcript of Dec. 12, 2001, pp. 39-56. The court was particularly concerned that without bailed release there was a serious possibility that defendant would not be able to properly defend herself. Her defense as well as the prosecution was to be based on the documents seized from her place of business by Panamanian authorities. They had not yet been provided to her. In addition, her incarceration limited her ability to work with her attorneys, accountants, and the necessary calculators and computers required to analyze the extensive business records in this complex case. Trial was set for March 11, 2002, giving defendant just under three months to prepare.
The government appealed from the order of December 12, 2001 granting release on conditions. Release was stayed by the court of appeals. By its decision of January 8, 2002, it vacated the district court's order. The district court was directed to consider "the determinative question specified by § 3142 — whether any combination of conditions would reasonably assure Hebroni's appearance as required." See United States v. Hebroni, 25 Fed.Appx. 85, 86 (2d Cir. 2002). Following remand, the district court held two additional evidentiary hearings.
Important events bearing on defendant's ability to defend had occurred. First, over strong government objection, the court ordered the release of sufficient of the defendants' funds to pay her attorneys for work done to that time.
Second, the government began to make available to defendant numerous boxes of papers. Since she was unable to study these documents except while she was detained, the court made available a room in the courthouse. She was brought to and from prison each day to view her business writings under the guard of the marshals. This procedure was burdensome since defendant was given limited space and she did not have the necessary equipment and assistance. Trial would have required introduction and analysis of thousands of documents, tracing transactions running through institutions in many countries.
Third, defendant suffered physically. She submitted evidence indicating that she was being held in the open in cold weather for lengthy periods each day with inadequate clothing awaiting transportation between jail and court, and was not being provided with appropriate food. The court observed her physical and emotional deterioration. On February 1, 2002, the court ordered that she be provided with adequate clothing. On February 11, 2002, the court ordered that she be provided with appropriate food. Despite these measures, continued suffering of the defendant was noted.
Conditions of incarceration of the defendant and the nature of the case raised doubts that due process could be served without some form of release. The defendant had to be able to prepare for her impending trial. In the court's view the bail terms were sufficient to assure her presence at trial. The district court again granted bail on February 12, 2002 with detailed findings as required by the court of appeals. See United States v. Hebroni, 187 F. Supp.2d 75 (E.D.N.Y. 2002). The conditions were stringent. Defendant was to be detained under house arrest; monitored by Pretrial Services with an electronic bracelet at her own cost; subject to telephone monitoring; subject to a curfew; guarded at all times if the government wished; required to place her passport in government custody; and required to post bail of $10,000,000 guaranteed by substantial real property.
At the time bail was granted this second time, the court noted that defendant was only a month away from trial, so that further detention would seriously hinder her ability to present a defense. Delays in release on bail worked in the government's favor since it shortened the time when defendant and her counsel could analyze the evidence in an appropriate environment.
The government appealed from the district court's February 12, 2002 order granting release on bail. The court of appeals stayed the order. Ultimately the court of appeals, on March 13, 2002, reversed the district court's order "for the reasons stated in the government's brief." See United States v. Hebroni, 2002 WL 391179 (2d Cir. Slip Op. Mar. 13, 2002).
As the defense's difficulty in adequately preparing for trial under these conditions became more evident, and the date of trial grew closer, the parties notified the court that they wished to enter into a plea agreement. Defendant agreed to plead guilty to count one of the indictment. See 18 U.S.C. § 1956(h). Count one contains allegations of millions of dollars in money laundering, but the parties agreed that the guilty plea would be limited to $474,000 of specific money laundering events. Defendant agreed "not to contest that the Government would have proven beyond a reasonable doubt at trial in this case that the funds identified in Count One of the indictment were derived from drug trafficking." Plea paragraph 5(b).
The agreement incorporated contemplated terms of a sentence for the defendant. As already noted, the prospective guideline was at level 20, carrying a range of imprisonment of 33 to 41 months; it included a downward adjustment for acceptance of responsibility. Defendant agreed not to seek a downward departure or to appeal her sentence if it was not greater than 41 months. She also agreed to forfeit all of her own ownership of assets in the defendant companies (estimated at some $6,000,000) which had been seized by Panamanian authorities, as well as the remaining more than $600,0000 of assets in a United States bank. The indicted corporations also pleaded guilty as part of the deal.
A hearing was held on March 1, 2002 to review the plea. For reasons set out orally at that time, and suggested in further detail in this memorandum, the court ordered that the defendant be examined by a physician to assist in determining if her plea was voluntary. The resulting report of Dr. Sanford L. Drob was illuminating.
Dr. Drob noted that Ms. Hebroni had suffered physically during her incarceration, especially in recent months when she was shuttled back and forth from jail to court daily to review papers. He also pointed out that Ms. Hebroni was exceedingly anxious to be reunited with her infant son. She told Dr. Drob that the reason she had agreed to a plea was to be reunited with her son sooner. She was, according to the Doctor, under the erroneous impression that she would be sentenced to time served. She stated, according to his report, that she believed that "you can't win" at trial. Dr. Drob concluded that defendant would have been far less likely to accept a plea agreement if she had been allowed to leave jail on bail while awaiting trial.
Dr. Drob noted that "several factors" were involved in defendant's decision to plead. The primary reason was concern for her son. She had suffered unusual stress as a result of separation from him — her only child and the result of years of fertility treatments. Since she was widowed, her son depended on her as his only parent; she had already had to explain an absence of 18 months. She also felt physically worn down and ill-equipped to undergo a lengthy trial.
Since the report indicated that defendant had an erroneous understanding of the plea agreement — which did not, as she reportedly thought, require immediate release — the court ordered defense counsel to make clear to their client the effect of the agreement. The court appointed supplemental counsel to ensure that defendant's rights were adequately protected. It was concerned that the lack of defendant's assets to pay legal and other costs of a trial might have produced an inclination of defense counsel to reduce their own obligations and potential financial risk were there a full trial, by recommending a plea.
On March 20, 2002, the court held a second hearing on the plea agreement. All parties, including supplemental counsel, were present. Defense counsel stated that defendant was aware of the effect of the plea agreement and was capable of making the agreement. Based on this affirmation; the medical report; an oral report of supplemental defense counsel that defendant understood the plea and that her counsel's advice was based solely on her welfare; and close questioning of the defendant by the court, the defendant's plea was accepted. See Transcript of Mar. 20, 2002 at 35-37.
The government requested an adjournment of sentence to consider potential bases for a downward departure outlined by the court. Both sides submitted briefs on departure issues, the government contesting the court's power to depart downward.
A presentence report was presented by Probation. The report was significant in that it calculated defendant's offense level differently than the plea agreement. The presentence report indicated that defendant's adjusted offense level would be 24, rather than 20, requiring a minimum sentence of 51 months rather than the 33 months set out in the plea agreement.

III. Law

A. Conflicts of Interest

Attorneys are subject to strict rules designed to prevent them from having conflicts of interest with their clients. The American Bar Association Model Code of Professional Responsibility demands that a lawyer "shall not accept [or continue in] employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests." ABA Model Code DR 5-101. This principle is one of the pillars of our judicial system — that an attorney should not have any reservation in giving unalloyed support to the client he is representing. A lawyer constrained by a conflict of interest between attorney and client, or between two or more clients, may be required to withdraw as counsel. ABA Model Rule 1.16. The right to counsel free from conflicts of interest has been enforced by the Supreme Court. See Holloway v. Arkansas, 435 U.S. 475, 489-90, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978) (right to effective counsel includes right to attorney free from conflicts of interest).
Forfeiture cases may be particularly amenable to conflicts of interest. In these cases, all of a defendant's assets may be seized, preventing the attorney from recovering any fee if the defendant loses. The attorney has a financial incentive to ensure that fees are paid, and thus an incentive to advise a defendant in a manner likely to protect fees — a position which may diverge from the best interests of the defendant.
All forfeiture cases do not raise conflicts per se. See, e.g., United States v. Monsanto, 491 U.S. 600, 615, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989) (finding no coercion in forfeiture case). Coercion must be measured by the way the government exercises its power to seize assets. See, e.g., United States v. Marquez, 909 F.2d 738 (2d Cir. 1990) ("Any attempt to use the prospect of getting the defendant's lawyer paid from seized funds as a bargaining chip to obtain a concession from the defendant poses the potential for a serious conflict of interest."); cf. Cuyler v. Sullivan, 446 U.S. 335, 343-45, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) (states may not conduct trials in a way that unconstitutionally impairs a defendant's right to effective counsel).
B. Plea Bargains
1. Plea Bargaining and Coercion
The Federal Rules of Criminal Procedure allow a defendant to "plead guilty, not guilty, or nolo contendere." F.R.Cr.P. 11(a)(1). Any plea of guilty must be shown to the court to be "voluntary":
The court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to whether the defendant's willingness to plead guilty or nolo contendere results from prior discussions between the attorney for the government and the defendant or the defendant's attorney.
F.R.Cr.P. 11(d). While the rule warns of coercion as a "result of force or threats or of promises apart from a plea agreement," the court's obligation to determine "voluntariness" is not limited by these examples. The word "voluntary" is itself laden with ambiguity; it is an antonym of "coerced" which may be due to various forms of non-force or non-threats. The second sentence starting with the words, "the court shall also" inquire about prior "discussions," suggests that inappropriate coercion may exist even where there is no "force or threats or . . . promises apart from a plea agreement."
There is no single clear definition of "voluntary" for all legal purposes. Even in the criminal-law-plea context, it is unclear whether "voluntary" means freedom from any coercion or whether it means freedom only from "wrongful" or "undue" coercion. A pristine rule of "no coercion" would preclude many plea agreements. Requiring plea negotiations to be free from "any coercion" would contradict the basic notions of bargaining. Contract law theory suggests that no bargaining process is completely devoid of coercion in some form. The problem is one of discerning what level of coercion is so inappropriate as to render a plea agreement invalid.
The seventh edition of Black's Law Dictionary's definition of "voluntary" as something done "unconstrained by interference . . . not compelled by outside influence," is not helpful in determining whether a guilty plea was "voluntary" since a defendant is always "influenced" by many factors including family demands and other social pressures as well as by the hope of minimizing punishment. To conclude that a plea agreement is made "unconstrained by interference" or "not compelled by outside influence" would be to ignore the reality that such an agreement is a bargain made between a relatively powerless defendant and a prosecutor who can exercise a great deal of influence over the accused's future happiness.
In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), the Supreme Court explained that a plea agreement is based upon mutual advantages gained by both the prosecutor and the defendant. If the defendant is "fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel" the plea may be considered "voluntary." Id. at 755. Courts recognize that "a great many [defendants are] no doubt motivated at least in part by the hope or assurance of a lesser penalty than might be imposed if there were a guilty verdict after a trial to judge or jury." Id. at 752 (emphasis added).
It is sometimes said that a plea is not "voluntary" if it is obtained through coercion that is "overbearing" to the defendant's will. Brady, 397 U.S. at 750. As noted in Miller v. Angliker, 848 F.2d 1312 (2d Cir. 1988), a plea is valid "if it is not the product of actual or threatened physical harm, mental coercion overbearing the defendant's will, or the defendant's sheer inability to weigh his options rationally." The words "overbearing" and "sheer inability" imply that some degree of "coercion" does not negate the validity of a guilty plea. Rather, forbidden is only "coercion" that is so overbearing to the defendant's will that he or she cannot make a rational decision. Undue coercion may be "mental as well as physical" and may be the result of "subtle pressures" by the government on a defendant. Garrity v. New Jersey, 385 U.S. 493, 495, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967).
This flexible approach contradicts the absolute stand against coercion expressed by some courts. See United States v. Bell, 776 F.2d 965 (11th Cir. 1985) (explaining the core requirements to a valid plea, including that the "plea must be free from coercion"); United States v. Dayton, 604 F.2d 931, 934 (5th Cir. 1979) (stating that a guilty plea must be free from coercion); United States ex rel. Siebold v. Reincke, 362 F.2d 592, 593 (2d Cir. 1966) ("A conviction will not be sustained if it rests upon a plea of guilty which is the result of coercion."). To be avoided, said one court, is "any semblance of coercion." Euziere v. United States, 249 F.2d 293, 295 (10th Cir. 1957) ("Fundamental standards of procedure in criminal cases require that a plea of guilty to the charge or charges contained in an indictment or information be entered freely, voluntarily, and without any semblance of coercion.").
One court of appeals has realistically declared that a plea is involuntary only if it is obtained through "wrongful coercion." United States v. Hernandez, 203 F.3d 614, 619 (9th Cir. 2000). This implies that some coercion is implicit in the plea bargaining process and only "wrongful coercion" — however defined — invalidates a plea. That there are acceptable types and degrees of coercion is suggested by a holding that only some activities, such as judges' participation in plea negotiations, are "inherently coercive." See United States v. Barrett, 982 F.2d 193 (6th Cir. 1992), citing United States ex rel. Elkins v. Gilligan, 256 F. Supp. 244, 254 (S.D.N.Y. 1966) (judges participation in plea negotiations is prohibited by Rule 11 of the Federal Rules of Criminal Procedure).
An illegally coerced plea may be analogized to an illegally obtained confession. Some degree of coercion is present in many admissible confessions. One English court summed up the common law rule as follows: "A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt . . . but a confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape . . . that no credit ought to be given to it; and therefore it is rejected." King v. Warickshall, 1 Leach 262, 263-264, 168 Eng. Rep. 234, 235 (K.B.1783). The due process test of voluntariness in a confession requires the court to consider "the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation . . . [and] whether the defendant's will was overborne." Dickerson v. United States, 530 U.S. 428, 434, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)). Factors to be considered in determining whether the defendant rationally decided to confess include age, education, intelligence, length of detention and questioning, and physical and mental characteristics. See United States v. Hernandez, 893 F. Supp. 932, [893 F. Supp. 952], 962 (D.Kan. 1995), aff'd, United States v. Hernandez, 103 F.3d 145 (10th Cir. 1996). Even wholly ratiocinatory economic creatures fully capable of adequately weighing the pros and cons of a prospective decision will take into account advantages and disadvantages offered by a prosecutor — in other words their coercive power. The carrot can be no less coercive than the stick — both impose pressure on decision. Cf. F.R.Cr.P. 11 (plea must be "voluntary and not the result of force or threats or of promises") (emphasis added).
In addressing confessions as well as pleas, "voluntary" can not be defined by freedom from "coercion," rather than by acknowledging appropriate levels of coercion. Determining whether a confession or plea is the product of illegitimate coercion requires consideration of the state of mind of the defendant as well as the techniques used for extracting agreement. Cf. Miller v. Fenton, 474 U.S. 104, 116, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985) ("The admissibility of a confession turns as much on whether the techniques for extracting the statements, as applied to this suspect, are compatible with a system that presumes innocence and assures that a conviction will not be secured by inquisitorial means as on whether the defendant's will was in fact overborne."). More "coercion" may be allowable in the form of bargained for benefits in pleas than would be allowed in confessions because the plea is developed with counsel's advice and with time to reflect and formalize the decision.
A closer equivalence to "plea bargains" than confessions is suggested by contract law. Cf. Brady, supra, 397 U.S. at 752 (plea bargains involve "mutuality of advantage"). The law recognizes that some degree of coercion exists in contract formation, but that the level of duress or threat may not be such that a party is "unfairly" (however defined) induced to enter into an agreement.
Coercion is inherent in the bargaining process itself. . . . Every contract involves some kind of threat. . . . The problem is one of singling out those threats that amount to abuse of the bargaining process. . . . The rules on duress . . . allow the injured party to undo the transaction by avoiding it. They seek to restore the parties to the positions in which they found themselves before they made the agreement.
E. Allan Farnsworth, Contracts § 4.9 (Little, Brown & Co. 1982). Yet there is no equivalence of a bargain between defendant and prosecutor and between entrepreneurs. For example, a party to a contract generally may not induce another party to agree by threat of criminal prosecution, whereas the nature of a plea negotiation is that not consenting necessarily results in further criminal prosecution. See Jamestown Farmers Elevator, Inc. v. General, 552 F.2d 1285, 1291 (8th Cir. 1977) ("threats to institute criminal or regulatory proceedings . . . made in order to secure another's consent to an undeserved bargain for one's own private benefit, may be sufficiently wrongful to constitute duress"); Farnsworth, supra, at § 4.20; United States v. Bethlehem Steel Corp., 315 U.S. 289, 300 (1942) ("The word duress implies feebleness on one side, overpowering strength on the other."); see also N. Am. Rayon Corp. v. Comm'r of Internal Revenue, 12 F.3d 583, 589 (6th Cir. 1993) ("Undue influence exists where a relationship of control exists between the contracting parties, and the stronger party influences the weaker party in a way that destroys the weaker party's free will and substitutes for it the will of the stronger party."); Commentary to § 175 of the Restatement (Second) of Contracts (a threat that would "arouse such fear as precludes a party from exercising free will and judgment or . . . [would] induce assent on the part of a brave man or a man of ordinary firmness" is voidable).
In the context of plea negotiations, a defendant is likely to be in such a state of fear that he or she might in a civil action be considered "bereft of quality of mind essential for making a contract." Rissman v. Rissman, 213 F.3d 381 (7th Cir. 2000) (citation omitted). A prosecutor's offer suggests "take this offer or I will use every resource at the government's disposal to deprive you of your liberty for as long as possible." This type of coercion is backed by the Federal Sentencing Guidelines. See Guidelines Manual § 3E1.1(b)(2) (2001) (defendant's sentence may be decreased by up to 3 levels by "timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently").
"Coercion" and "voluntary" are, in short, vague terms of limited value in deciding whether to accept a plea. The critical question is whether the defendant was in a position to rationally weigh the advantages and disadvantages of the plea and whether a reasonable person in that position might make the same decision. This is a rather imprecise standard. In addition, certain tactics are considered incompatible with the etiquette of criminal justice, including overt threats and physical abuse. In accepting the plea the court must try to be as fully cognizant as practicable of the circumstances leading to the plea and of the nature and the background of the particular defendant, including age, education, social class, family pressures, and other relevant factors that might have affected the decision. The defense attorney's position is critical for he or she provides defendant with the crutch of cool rationality.
"Coercion" within limits is an available tool for prosecutors. It is appropriate so long as it does not shock the judicial conscience and does not depart substantially from commonly held beliefs of what is appropriate pressure for the government to apply to supposed miscreants. "Voluntary" under these circumstances means a capacity of the defendant and his counsel under the circumstances to rationally and fairly weigh the benefits of the plea against risks of not pleading. If "coerced" is too strong a word, one that leaves members of the justice system uncomfortable, many pleas are, to put the matter more politely, "induced" by strong promises of great value (e.g., a lesser term of incarceration, or life rather than death) — offers that, to paraphrase a famous movie line, most defendants cannot refuse.

2. Competency to Plead

Voluntariness is comprised of at least two separate elements. First, the plea may not be "coerced" in the sense already described. "The agents of the State may not produce a [guilty] plea by actual or threatened physical harm or by mental coercion overbearing the will of the defendant." Brady v. United States, 397 U.S. 742, 750, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Coercion is a fact-intensive inquiry which will depend on the particular case.
Second, a defendant must be competent to plead. Saddler v. United States, 531 F.2d 83, 85 (2d Cir. 1976). "If the judge, in response to his Rule 11 inquiries or because of information received from other sources, has reasonable grounds to doubt the defendant's competence, he must refuse to accept the plea or defer acceptance pending a request for an examination of the defendant's mental capacity." Id. at 86.

In making these two inquiries, courts are instructed to err on the side of caution and use "the `utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure [the defendant] has a full understanding of what the plea connotes and of its consequence.'" Id. at 85-86, citing Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

There is a lively debate among scholars over whether plea bargaining is systemically unreasonably coercive in nature. Compare, e.g., John H. Langbein, Torture and Plea Bargaining, 46 U. Chi. L. Rev. 3, 12-19 (1978) (plea bargaining is similar to medieval European torture), and Stephen J. Schulhofer, Plea Bargaining as Disaster, 101 Yale L.J. 1979, 1980 (1992) (plea bargaining should be abolished), with Frank H. Easterbrook, Plea Bargaining as Compromise, 101 Yale L.J. 1969, 1978 (1992) (plea bargaining is an efficient compromise and maintains defendant autonomy).
Langbein's view, while perhaps overly dramatic, is relevant to the present inquiry. He notes that:
Like the Europeans of distant centuries who did employ [torture], we make it terribly costly for an accused to claim his right to the constitutional safeguard of trial. We threaten him with a materially increased sanction if he avails himself of his right and is thereafter convicted. This sentencing differential is what makes plea bargaining coercive. There is, of course, a difference between having your limbs crushed if you refuse to confess, or suffering some extra years of ...

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