It’s really more of a suggestion than a rule

Because I practice criminal defense in state courts, I really don’t keep up with cases on the federal rules of criminal procedure.  But a recent post on Michael O’Hear’s Life Sentences Blog caught my eye.  O’Hear writes about a federal rule that prohibits judges from getting involved in the plea bargaining process.  (Wisconsin state courts have a similar rule, so I’m quite familiar with it.  Further, there is at least one good reason behind the rule: sometimes judges don’t understand the law, so it’s best if they just stay out of the way.)  But what happens in federal court when a judge breaks this rule?  What if he sticks his nose into the parties’ plea negotiations, bullies the defendant to take a deal, and the defendant later regrets it and wants to withdraw the plea?  Is he entitled to take back his plea and start fresh?  Not quite.  It turns out that the federal “rule” against judges pokin’ around in the parties’ business is really more of a “suggestion” than a rule.

More specifically, the rule prohibiting judicial involvement in plea bargaining is quickly followed by an invitation for judges to break the rule: “variance from the requirements of this rule is harmless error if it does not affect substantial rights.”  These malleable words, of course, invite years of subsequent litigation in what should have been a simple resolution of a criminal case.  What happens is that judges do get involved in plea bargaining, defendants enter into plea deals they later regret, and, then, in the multiple appeals that follow, lawyers debate whether the rights that were violated were “substantial,” and, if so, whether the judge’s rule breaking was “harmless.” 

Here are several reasons why federal rule-makers should not be so afraid to impose firm rules on judges, and should delete the so-called “harmless error” clause that immediately follows the prohibition on judicial plea bargaining. 

First, the rule against participating in plea bargaining is clear, simple, and incredibly easy for judges to follow.  This stands in stark contrast to the rules under which the ordinary citizenry must operate.  For example, consider the state crime of “disorderly conduct.”  Do you know what type of behavior—including your behavior in a “private place” such as your home—“tends to cause or provoke a disturbance”?  (As prosecutors love to point out, no actual disturbance is required in order for the government to convict you.)  Well, you’d better learn, because it’s one of the most common crimes of which we are convicted.  Now, comparatively speaking, doesn’t the judicial rule of “don’t participate in plea bargaining” seem much easier to follow?

Second, the rule makers already take freedom from judges when it works to a defendant’s detriment.  For example, for some state crimes—I again use state examples because I don’t practice in federal court—lawmakers require judges to send certain defendants to prison for life, even when they are sentencing them for incredibly minor crimes.  For other state crimes, lawmakers require judges to send certain defendants to prison for decades, even when they have no prior record, and even when their victim wasn’t physically or emotionally harmed in any way.  And I'd bet that many federal crimes and federal sentencing guidelines also require minimum sentences.  So rule makers can easily take away judicial freedom when the goal is to ruin defendants’ lives.  So why don’t the federal rule makers try taking away some of that judicial freedom when the rule is meant to protect defendants? 

Third, there would be a huge savings in bureaucratic time and taxpayer money.  Imagine if the rule was simply that judges couldn’t participate in plea bargaining, with no subsequent invitation for judges to violate the rule under the “harmless error” exception.  Now, imagine the first time a judge breaks that rule.  The defendant would appeal, and the case would be immediately sent back.  Do you think the judge would violate the rule a second time?  Of course not.  When there is a rule and a consequence for violating it, the rule will be taken seriously.  No more lengthy and costly appeals sucking up time, money, and other resources, just so we can debate on a case-by-case and fact-by-fact basis whether the judge violated a “substantial” right, or whether the judge’s rule breaking can somehow be labeled “harmless.”

Fourth, basic rules, structure, and boundaries are good.  They promote consistency and fair play, and also give the ever-important appearance of fairness.  Besides, rules that aren’t really rules make the rule makers look like a joke.  Much like the parent who keeps threatening punishment but never delivers, they eventually lose any respect they had to begin with.

Finally, to their credit, many states do have firm rules of criminal procedure.  Consider, for example, the state of Wisconsin: “We conclude that judicial participation in the bargaining process that precedes a defendant's plea raises a conclusive presumption that the plea was involuntary.”  This is a great example of a rule that’s really a rule, and not a mere suggestion.  But is all of this analysis really necessary?  Shouldn’t it really be much simpler?  I once heard a judge tell a defendant at a sentencing hearing: “You can’t go around doing whatever you want, breaking society’s rules!”  The goose and the gander come to mind.