O. VAN VREDENDAAL
Interpreting Montesquieu’s views on the separation of state powers in the context of federal plea agreements in the
At first glance, the basic premise of plea bargaining appears to be simple. Faced with the possible prospect of a lengthy prison sentence or even capital punishment, defendants agree to serve a comparatively lower sentence, which prosecutors offer them, often without considering refusal. A judge will then validate the agreement reached between the prosecution and the defendant in open court, typically without altering anything about the sentence as proposed by the prosecution. When one considers plea bargaining in this light, it may appear as though prosecutors are essentially playing judge. Since plea bargaining has become common practice in various countries across the globe, serious concerns have been raised over the role of this practice in the criminal justice system (Bowcott, 2017, para. 1). Although plea bargaining has reached a point of worldwide prevalence, it most frequently occurs in the United States, where approximately 97 percent of criminal cases involving acts that qualify as offenses under federal legislation are settled through plea agreements (Viano, 2012, p. 110; Bowcott, 2017, para. 3; Fair Trials, 2017, p. 4). As recently as May 2019, the American Bar Association (ABA) – the largest professional organisation representing attorneys in the United States – issued a formal opinion in which it raised the issue of prosecutors’ ethical responsibilities in dealing with plea bargains (American Bar Association, 2019).
The way in which power is divided in the United States, and the way in which, in turn, the criminal justice system is organised, can be traced to the eighteenth-century French philosopher Montesquieu. The Founding Fathers of the United States admired the ideals of Montesquieu, who championed the belief that the state’s powers should be separated in order to ensure freedom. Specifically, Montesquieu argued for the separation of the state’s powers across three distinctive governmental branches: a legislative branch, an executive branch, and a judicial branch. This, he asserted, would prevent despotic rule (Mason, 1975, p. 134; Shklar, 1987, pp. 121-124; Robin, 2006, p. 53; Bok, 2014, para. 1-25).
Montesquieu’s ideals on the separation of powers have frequently been related to administrative law. They have, however, not frequently been related to criminal law. Similarly, the issue of the separation of powers, specifically, has rarely been raised in discourse surrounding plea bargaining (Barkow, 2006, pp. 989-993). Relating Montesquieu’s ideas to criminal law by examining the practice of plea bargaining might thus be academically fruitful.
This essay will begin by outlining Montesquieu’s main works before examining his views on the separation of powers. Subsequently, the practice of plea bargaining in the United States will be explored. For practicality’s sake, this essay will confine itself to plea bargaining at the federal level, which is justifiable considering the vast amount of criminal cases dealt with through plea agreements at this level of government. Next, Montesquieu’s ideals will be evaluated in the context of plea bargaining, analysing how the practice relates to his doctrine of the separation of powers. The essay will finish with a conclusion regarding the question whether Montesquieu’s ideals continue to remain relevant in this particular context.
Montesquieu and the separation of powers
Charles-Louis de Secondat, Baron de Montesquieu, is widely considered as an important contributor to the Enlightenment. A French nobleman with a background in law and experience in government, Montesquieu is perhaps best known for his doctrine of the separation of state powers (Bok, 2014, para. 1-2; L. van Bunge, personal communication, November 26, 2018). His ideas heavily influenced political debate in Europe and North America throughout the eighteenth century. For instance, Montesquieu’s work helped guide the Founding Fathers of the United States in writing the United States Constitution (Shklar, 1987, pp. 111-123; Robin, 2006, pp. 70-71).
Montesquieu’s two main works are Persian Letters and The Spirit of Laws. Both centre around the topics of state power, the purpose of laws, and (state-sanctioned) violence. The way in which Montesquieu treats these topics, however, differs between publications. Persian Letters offers an account of French society under Louis XIV, King of France, as told by two fictional Persians travelling the country. They comment on government, political authority, and the rule of law (Bok, 2014, para. 6-8). Persian Letters is remarkable because it reflects terror, characteristic of Louis XIV’s reign, in the Persians’ behaviour, one of whom tyrannically rules over a harem of wives (Robin, 2006, pp. 54-56).
In The Spirit of Laws, Montesquieu examines laws and socio-political institutions more in-depth. He considers citizens’ ability to live in relative freedom under a stable (non-despotic) government to be paramount. He refers to this freedom as liberty. Montesquieu further develops this initial concept, defining political liberty as, essentially, the assurance of personal security, and protection from predatory state power. Liberty entails that one may do as much as possible within a framework of laws that protects citizens from harm inflicted by others, simultaneously preventing one from harming others oneself. If one obeys these laws, the state’s power will not be negatively aimed at oneself (Robin, 2006, p. 61; Bok, 2014, para. 24).
Doctrine of the separation of powers
How does Montesquieu define terror? In simple terms, Montesquieu characterises terror as “unmitigated violence” (Robin, 2006, p. 52). The despot creating terror has no political agenda and discards the rule of law. Terror has a severe impact on citizens. Those terrorised do not possess rationality, cannot deliberate or flee, nor do they have agency (Robin, 2006, p. 52).
Montesquieu expresses a preference for state power to be shared by three governmental branches. The legislative branch, preferably consisting of two legislative chambers (i.e. bicameral), is tasked with enacting and amending laws. The executive branch should ensure public safety and have the power to veto legislature and declare war. In a well-functioning democracy, Montesquieu asserts, the people should choose who exercises executive power. The judicial branch should be concerned with punishing criminals and settling disputes between individuals, consistently applying the law to particular cases (Montesquieu, 1777, XI, Ch. 6, para. 2; Uhr, 2006, p. 539; Bok, 2014, para. 16-19, 26).
The practice of plea bargaining in the United States
Plea bargains in the United States’ federal judiciary constitute an agreement between defendants and prosecutors, the latter representing the United States federal government. These prosecutors, known as (Assistant) United States Attorneys, are also part of government themselves, belonging to the executive branch; they are appointed by the President of the United States and operate under the direction of the Attorney General, head of the United States Department of Justice (“Offices of the United States Attorneys”, n.d.).
Plea agreements are typically reached before trial. Defendants will plead guilty to the crime of which they are accused, in return for which the prosecution recommends a particular (lower) sentence to a judge for them to serve. While, at the state level of government, plea agreements may require a judge’s approval, such approval isn’t required in the federal judiciary (Santobello v. New York, 1971, as cited in Viano, 2012, p. 110; Federal Bureau of Investigation, n.d.). As such, the “recommended” sentence de facto becomes the sentence that a defendant will serve when entering into a plea agreement.
Plea bargaining does not constitute a grey area of the law. In fact, the United States Supreme Court established the practice’s constitutionality, underscoring its legality, in the Court’s ruling on Brady v. United States (1970, as cited in Viano, 2012, p. 110). Brady v. United States concerned Robert Brady, a New Mexico man who, in exchange for a plea bargain, pleaded guilty to kidnapping under federal criminal statute 18 U.S.C. §1201(a) in the United States District Court for the District of New Mexico. The defendant subsequently sought to reverse his guilty plea, arguing that he had entered into the plea agreement under pressure from his own attorney. Brady alleged that he went through a state of extreme fear after having been confronted with the possibility of being sentenced to death – the maximum sentence specified under 18 U.S.C. §1201(a) – if convicted during trial, and that this experience prompted him to accept the plea bargain. In reality, however, Brady had pleaded guilty because his co-defendant had accepted a plea bargain himself in exchange for testimony against Brady. In arguing for reversal, the defendant and his counsel did not acknowledge the fact that Brady had explicitly voiced his desire to enter into a plea bargain in open court, and that the acting judge had asked for Brady’s consent twice. The District Court did not reverse the defendant’s original guilty plea, nor did the Court of Appeals for the Tenth Circuit, where Brady subsequently appealed the ruling of the District Court. The defendant also appealed the Tenth Circuit’s ruling. As a result, the case proceeded to the United States Supreme Court. The Court unanimously ruled that plea bargains, such as the one entered in to by Brady, are constitutional when defendants explicitly agree to accept a plea bargain, as the defendant had done. The Court concluded that Brady had not been pressured by his attorney. Furthermore, the Court argued that if attorneys attempt to persuade defendants to accept a plea agreement by confronting them with the possibility of receiving a high sentence, as Brady had alleged happened in his criminal case, this cannot be seen as coercion or another form of pressure (Brady v. United States, 1970; Zottoli, Daftary‐Kapur, Edkins, Redlich, King, Dervan & Tahan, 2019, p. 390). The Court’s stance on plea bargaining seems to have remained unaltered since the days of Brady v. United States. As recently as 2012, Supreme Court Justice Kennedy acknowledged that the American criminal justice system is nowadays more about pleas than about trials (Missouri v. Frye, 2012, as cited in Viano, 2012, p. 110).
Plea agreements are related to a number of advantages. Plea bargaining can reduce the number of cases which federal courts have to process. As a result, less time elapses before cases not settled through plea bargaining can proceed to trial. Plea bargains may also reduce the length of pre-trial detention for defendants if less time has to pass before cases can proceed to trial. In addition, plea bargaining is generally more cost-efficient compared to trial. Barkow (2006, pp. 1044-1045) asserts that these practical benefits associated with plea bargains motivated the Supreme Court to legitimise and encourage plea bargaining. Furthermore, plea bargaining does not require those associated with a crime to relive possibly traumatising moments in court, and typically provides defendants with lower sentences. Nevertheless, plea bargaining does deny defendants the rigours of a full trial (Demarest, 1994; Fair Trials, 2017, p. 2).
Even if plea bargaining has become routine and provides (practical) benefits for both victims and those accused, as well as being advantageous to the criminal justice system as a whole, the practice is criticised and scrutinised in relation to some major disadvantages and injustices. The private, out-of-court nature of plea bargaining arguably results in a lack of transparency, possibly undermining trust in the judiciary. In general, public trials increase public trust in the judicial process (Gifford, 1983, pp. 70-71; Hessick, 2002, p. 192). Although limited, there is some empirical evidence to suggest that American public opinion is, overall, negatively disposed towards the practice of plea bargaining. In 1993, a Gallup poll conducted among some 1,000 respondents in the United States indicated that 24% of the participants were in favour of banning plea bargaining (Gallup, 1994, p. 216). In addition, a 2005 report on public trust and confidence in the California judiciary, considering state courts rather than federal courts (Rottman, 2005), suggests that many members of the public are concerned with issues of procedural fairness (Rottman, 2005, pp. 23-25, 35). Viano (2012, pp. 124-125), citing Schulhofer (1992) and Tyler (2005), also points towards possible erosion of public confidence in the judicial system in the United States as a result of plea bargaining. The negative impact of plea bargaining on the public’s trust in the judiciary is not limited to the United States, however. Roberts (2007, pp. 164-165, 177), studying public confidence in the Canadian criminal justice system, asserts that (media coverage of) plea bargaining may make Canadians inclined to believe that the criminal justice system favours the offender, not the victim. Roberts (2007) builds upon research conducted by Cohen and Doob (1989), among others, in making this claim. And, in Slovenia, where plea bargaining has occurred since 2012, the introduction of this practice resulted in public condemnation (Roberts & Plesnicar, 2015, p. 44). Furthermore, according to non-profit justice watchdog Fair Trials (2017, p. 3), an estimated 20,000 allegedly innocent individuals remain imprisoned in the United States after having entered plea agreements.
Plea bargaining hasn’t only been criticised by those outside of the criminal justice system. High-ranking individuals within that system have also spoken out against plea agreements. Chief Judge Young of the United States District Court for the District of Massachusetts, alongside other federal judges, finds the plea-bargaining system to be rigged against defendants. The government allegedly coerces defendants into entering a plea agreement by presenting the prospect of a heavy sentence if convicted during trial, thus discouraging defendants from calling upon their constitutional right to be tried by a jury of their peers (Barkow, 2006, p. 1046; United States v. Richard Green, 2004, as cited in Viano, 2012, p. 109).
of power in context
As mentioned, Montesquieu proved to be a major influence on the Founding Fathers of the United States in writing the United States Constitution. Montesquieu’s doctrine of the separation of powers was more than merely an inspiration to them, considering that articles one through three of the Constitution establish a clear separation of powers between governmental branches (Cornell Law School Legal Information Institute, n.d.). Keeping this in mind, it is especially surprising to observe Montesquieu’s doctrine being violated through plea bargaining, also given the importance that is generally assigned to the Constitution in the United States.
In The Spirit of Laws, Montesquieu comments on the importance of legal formalities. He states that these serve to combat despotism (Mason, 1975, p. 135). Since plea agreements are typically reached outside of court, thus more or less outside of the formal sphere of justice, one might argue that plea bargaining possibly contributes to fostering despotism in the United States. Considering Montesquieu’s earlier characterisation of despotism, we can indeed see some despotic tendencies being reflected in the practice of plea bargaining.
When defendants are pressured by the prosecution, as allegedly happens, they cannot, in a figurative sense, flee. At first glance, one might assume that, since defendants’ rights to a jury trial is protected under the Fifth and Sixth Amendments to the U.S. Constitution, defendants would only lose this right once they explicitly agree to a plea bargain. Legally, this is indeed the case (Cornell Law School Legal Information Institute, n.d.). As such, defendants are, in theory, at liberty to reject any plea bargain offered by the prosecution. In reality, however, defendants are often not inclined, if not actively discouraged, to reject plea bargains. Writing for the Columbia Law Review, Crespo (2018, pp. 1311-1314) outlines how prosecutors are able to use their extensive knowledge of the law to their advantage when attempting to reach a plea agreement with defendants. Firstly, prosecutors rarely seek the highest possible sentence which a judge or jury is authorised to impose by law. Hypothetically, if the maximum sentence for a particular felony, as specified by federal criminal statutes, is a prison sentence of 25 years, prosecutors might argue for a 15-year or 20-year prison sentence to be imposed. Despite not seeking a maximum sentence, prosecutors may choose to confront defendants with the prospect of receiving the maximum sentence. As Crespo (2018, pp. 1311-1314) asserts, this occurs frequently. Secondly, prosecutors may take advantage of defendants’ overall lack of knowledge about the legal system by presenting them with “inflated charges”, which are not merited considering the law or the evidence of the case. To defendants, inflated charges could mean receiving a more severe sentence. An initial felony charge of aggravated robbery, for example, might be inflated by prosecutors adding additional charges – making threats or being in possession of a weapon, for instance – to the indictment. Thirdly, after having confronted defendants with the prospect of receiving a harsh sentence if the criminal case were brought to trial, prosecutors may finally offer a comparatively lower sentence. To defendants, this offer will likely seem more bearable. This will often be the sentence that prosecutors desired in the first place, Crespo (2018, pp. 1311-1314) asserts. In effect, by intimidating defendants and convincing them that a trial is likely to result in receiving the maximum sentence, prosecutors are able to make the sentence offered as part of their plea bargain seem the most reasonable option. Not wanting to risk receiving a high sentence, defendants will be inclined to consent to a plea bargain, choosing to forego trial. Prosecutors may thus effectively make defendants feel as though they can do nothing but accept a plea bargain. As such, defendants enjoy little agency. For Montesquieu, despotic terror is characterised by such a lack of agency.
Of course, other elements of Montesquieu’s concept of terror do not relate to the practice of plea bargaining. One cannot characterise plea bargaining as being especially violent. Likewise, the practice is heavily grounded in the rule of law, given the Supreme Court’s ruling in favour of plea bargaining, and the large scale on which the United States Department of Justice carries out the practice.
In conclusion, while plea bargaining provides (practical) benefits, it does so at the expense of Montesquieu’s ideals. When the executive branch of government effectively sentences defendants without a judge being able to decide on an appropriate sentence, the judicial branch of government is stripped of its powers. Two powers are subsequently held by one governmental branch, constituting a violation of Montesquieu’s doctrine of the separation of powers and thereby threatening liberty. Moreover, when prosecutors pressure defendants into entering a plea agreement, the state’s power is, in a sense, negatively directed at them, seriously limiting defendants’ liberty, as Montesquieu had cautioned against. While defendants legally and theoretically retain the (constitutional) right to reject any plea bargain, the manner in which prosecutors may interact with defendants frequently discourages the latter from calling upon this right.
We cannot conclude whether a judge’s sentence would be fairer or better than the one decided upon by prosecutors as part of plea agreements, nor can we say definitively whether trials are ultimately better than plea bargains. However, given the prominent place of Montesquieu’s doctrine in the United States Constitution, the alleged disadvantages and injustices that may result from plea bargaining, as well as the strong opposition to the practice, it might be sensible to allow judges to play their part in the criminal justice system, in keeping with Montesquieu’s ideals and the judiciary’s role under the Constitution. Not only would this combat the elements of despotism that plea bargaining is demonstratively connected to – even if elements of despotism seem to be confined to the sphere of criminal justice – it would also allow society to empirically determine whether trials are to be preferred over plea bargains, as well as maintain and/or restore trust in the criminal justice system. As such, Montesquieu’s ideals on the separation of powers continue to remain relevant in this particular context.
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