The legal community was quick to pick up on this implication of the United States
versus Jackson. And almost instantly, the law reviews
were filled with commentary suggesting that Jackson had sounded the death knell
for the American system of criminal Justice.
Because the system had in fact come to depend so heavily on plea bargaining.
If plea bargaining were to be declared unconstitutional, the system would very
likely collapse. The reason that plea bargaining was so
prevalent was that the people generally were not willing to devote the resources
necessary to criminal justice. To fulfill the promise of a full criminal
trial to all defendants. That's why plea bargains became
prevalent, because they were a cheap way to resolve cases.
But if the Supreme Court were to declare plea bargaining unconstitutional, then at
least in the first instance, every defendant would have to be given a
criminal trial. Or in this case would have to be
dismissed and the resources available to the criminal justice system were simply
far from sufficient to grant even a fraction of criminal defendants a full
trial. The Supreme Court saw immediately the
implications of what it had done and it tried to fix the problem as quickly as it
could. Now, it was drawn against it's will, I
think, into looking at the system of plea bargaining that it had implicated in the
United states vs Jackson. and deciding what to do about the plea
bargaining system in light of the language that the court had used in
United States vs Jackson. The court, I, believe, understood that it
could not declare plea bargaining unconstitutional.
It could not throw the entire system of American criminal justice into chaos all
at one stroke. By calling plea bargaining
unconstitutional in a situation where perhaps it had never even intended to
call the institution of plea bargaining into question in the first place.
And so the supreme court resolved to clear up the confusion that it had caused
about plea bargains by deciding a second case.
This one actually involving a plea bargain that was raised under the same
federal kidnapping statue that had been litigated in the United States vs
Jackson. This second case concerned a kidnapper
named James Brady, who with his accomplice, were accused in 1959 of
violating the Federal Kidnapping Act by transporting their kidnapped victim
across State lines. And also depositing, harmed, I suspect in
this case, given the severity of the penalties, that this victim was also
liberated dead. And so in 1959, well before the Jackson
case. The kidnapping statue stood as it did
before Jackson. One could only be sentenced to death
after a conviction of kidnapping by a jury.
And that could only happen at trial. It turned out that Brady and his
accomplices were the only surviving witnesses of the kidnapping.
Their victim was dead and therefore couldn't testify in court against either
one of them. Therefore, the police didn't have quite
enough evidence to put either Brady or his accomplice away for kidnapping.
Unless they could get one or the other, the two of them, to turn.
That is to plead guilty and agree to testify against the other one.
And so, the prosecutors used a time honored tactic, which is the inspiration
for what mathematical economist call the Prisoner's Dilemma came.
Each of the two defendants was put in a separate cell and each was subject to
intense negotiation with a different prosecutor.
Each one of them was threatened with the death penalty if they went to trial and
were convicted. But each one of them was offered a much,
much lesser sentence, a much lesser sentence, if they would defect.
That is to say, if they would turn State's evidence against their partner,
plead guilty, and testify against him at the trial.
And so, the situation that both defendants faced independently of one
another, was that if they both held out and neither one of them took the
proffered plea bargain. It was likely that neither one of them
would be convicted. If they both pleaded guilty, then neither
of them would be needed to convict the other one.
And the courts would be free, the prosecutors would be free to inflict a
higher sentence against them. Or alternatively, one of the could plead
guilty and the other one couldn't. In which case the one who pleaded guilty
would get a very low sentence. And the one who didn't plead guilty,
perhaps on the basis of testimony of the first defendant, could be sentenced to
death. This was the situation that Brady and his
accomplice were in. And for a substantial period of time,
both of them held out. That turns out to be an important fact.
But them, after a while, Brady's accomplice caved in and he agreed to plea
guilty to avoid the possibility of the death penalty.
And he agreed to testify against Brady. When Brady learned of this, then Brady
understood that the chances that he would be convicted at the trial had gone from
very low to very high. And he now understood that the death
penalty was a serious possibility for him.
And so, he too agreed to a plea bargain, but since the prosecutor didn't need him
any longer, he was sentenced first to 50, later reduced to 30 years.
And so Brady, in these circumstances, sits in a jail cell for 30 years, for
kidnapping. Then in 1968, United States vs Jackson is
decided. And the court considers Brady's claim
that his guilty plea was coerced from him by the unconstitutional operation of the
federal kidnapping act. That, as Brady hoped, to ride on the coat
tails of Jackson, and have his guilty plea overturned.
Because the law under which both he and Jackson were being asked to plead guilty
was now being held to be unconstitutional.
The court decided the case in an opinion written by Justice Byron White.
Who is to this day the only member of the United States Supreme Court ever to have
played in the National Football League. White could have decided Brady's case
without discussing the legitimacy of plea bargaining at all.
Simply by concluding from Brady's own behavior that he was not in fact
terrorized by the statute to plead guilty.
How do we know this? Because he help out for so long in the
face of the statute that threatened to put him to death.
He was not so terrorized by the statute that he caved into the prosecutors just
because of the statute. He caved in to the prosecutors only when
he learned that the probability that he would be convicted at the trial had gone
up substantially. Since his claim was that his guilty plea
was coerced from him, the facts show that he was not terrorized or coerced into
giving his plea. He simply made the best of a bad
situation by waving his right to trial and pleading guilty.
If that's all there was to it, the court could have disposed of Brady's case
without saying a word about the propriety of plea bargaining or not.
But that wasn't an option for them after Jackson.
And the only reason that they were deciding Brady's case was to give
themselves another opportunity. To say whether plea bargaining was or was
not unconstitutional, and as you might expect.
The court took this opportunity to say, no, plea bargaining is not
unconstitutional. Moreover, they went on, it's not just an
ugly necessity, it's mutually beneficial. Because in a bargain, here as in all
other exchange contexts. People do not voluntarily agree to
bargains unless they believe that the bargain will put them in a better
situation than they were before. After declaring that plea bargains were
in fact constitutional because of the mutuality of advantage that they provided
to prosecutor and defense. The court went on to outline a series of
rules to govern plea bargaining transactions.
That is, a series of rules to guide prosecutors, and tell them what they can
do and what they cannot do in their negotiations to persuade defendants to
plea guilty. So let's have a look at the rules that
the Supreme Court set out to govern plea bargains in Brady versus United States.