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U.S. v. JOYEROS
May 9, 2002
UNITED STATES, PLAINTIFFS,
SPEED JOYEROS, S.A,; ARGENTO VIVO, S.A.; YARDENA HEBRONI A/K/A YARDENA HEVRONI; AND ELIAHU MIZRAHI, DEFENDANTS.
The opinion of the court was delivered by: Jack B. Weinstein, Senior District Court Judge.
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
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
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.
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
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.
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.
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
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,
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.
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
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
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).
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
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
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")
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
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
"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.
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 ...