The Other Costs of a Guilty Plea


I wrote here about the implicit cost-benefit analysis involved in deciding whether to plead guilty or proceed to trial. As I noted, describing this analysis in mathematical terms is an approximation of a vague and fuzzy calculus.

There are other ways to describe the plea-or-trial decision-making process. One is as an commercial transaction: when an accused pleads guilty she gives up one thing in exchange for another. What she receives is certainty — she knows what she will be convicted of, and what the penalty will be. In exchange, she gives up the chance of a better outcome at trial. When she sees herself receiving more value than she has to give up, he will rationally plead guilty.

Often the outcome with a plea agreement is better than any outcome but an outright win at trial. For example, if the minimum sentence after a conviction is 25 years and the State offers 15 years, the only way to get a better result at trial is to win the whole case. (According to a coldblooded cost-benefit analysis, an accused who expects to get 25 if he loses at trial shouldn’t give up more than a 40% chance of winning the whole case in exchange for a 15-year sentence.)

But there is much, much more given up by the person who pleads guilty. She always gives up:

Her right to a jury trial;
Her right to remain silent;
Her right to confront the witnesses against her and have her lawyer cross-examine them;

She also generally gives up:

Her right to fight illegal police activity under the Fourth, Fifth, and Sixth Amendments (searches, seizures, arrests and interrogations);
Her right to appeal;
Her right to complain about the way she was charged; and
Her right to complain about the unconstitutionality of the law.

She often also gives up her right to keep and bear arms; some prosecutors would even say that she gives up her right to know about the exculpatory evidence — the evidence in her favor.

“Fine,” the accused might say, “I understand all of this, but all that matters to me is the outcome that I get.” She might argue that the only value her constitutional rights have is that they might help her avoid or reduce a sentence. I would disagree.

When Americans have fought and died for “freedom,” they weren’t dying for our rights to shop at Wal-Mart or drive a Hummer or feel safe, but for the rights secured by the Bill of Rights. They did so not so that the accused would go free, but so that she would have those rights. Why? Because these rights have inherent value. Because life is better in a country where the government has less power.

The more cavalierly we treat our rights, the more likely we are to lose them forever. If the police search your home illegally and you give up your right to fight it, they are more likely to search my home illegally. If the State files weak charges against one person and he gives up his right to make them prove those charges to a jury, the State is more likely to file such charges against others. If I’m accused under an unconstitutional statute and I give up my right to have the courts review its constitutionality, the State will more likely use that statute against you. (If, on the other hand, everyone charged with a crime demanded a jury trial, the system would shut down until the State stopped arresting and charging all but the most deserving.)

To plead guilty an accused has to give up rights for which American men and women have died for more than 230 years. By giving up these rights for herself she weakens them for all of us. This is not to say that those rights should never be surrendered (though that would be a great rule if everyone could follow it), but rather that those rights should be valued for more than their mere utility.

Some of our clients (let’s face it) are where they are because they let their own direct self-interest lead them to do things that weren’t right. Maybe this would be a good place for them to start thinking about others.

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