Opinion 17-110


October 19, 2017


 

Digest:         A judge may suggest alternatives to a plea agreement offered by a defendant and prosecutor, provided the judge does so non-coercively and is careful not to create an impression he/she has prejudged the case’s merits. Prior opinions are modified to clarify that a judge may, subject to significant ethical, constitutional, and statutory limits, initiate, suggest, or facilitate plea agreements.

 

Rules:          22 NYCRR 100.1; 100.2; 100.2(C); 100.3(B)(6); 100.3(B)(7); 100.3(C)(1); Opinions 17-34; 16-92; 16-09; 15-197(A); 15-56; 15-34; 14-175; 14-152; 14-12; 13-33; 12-68; 10-196; 10-177; 10-170/11-03; 10-114; 10-113; 10-32/10-48; 09-216; 09-118; 09-105; 08-11; 07-22; 04-95; 00-95; 99-148; 99-82; 98-58; 98-57; 96-132; Matter of Mulroy, 94 NY2d 652 (2000).


Opinion:


         The inquiring judge wishes to be more active in plea negotiations, beyond only approving or rejecting a proposed plea. Often, an accused charged with a Driving While Intoxicated (DWI) misdemeanor agrees to a guilty plea to a Driving While Ability Impaired (DWAI) infraction, with a short jail term and fine. The judge believes an alternative agreement could allow a defendant to avoid jail and reduce recidivism.1 The inquirer knows of our prior opinions stating judges may not initiate, encourage, or suggest plea agreements, and thus asks if he/she may suggest alternatives after a defendant and prosecutor have agreed to a plea.


         A judge must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1) and must always avoid even the appearance of impropriety (see 22 NYCRR 100.2). A judge must not convey an impression that others are specially positioned to influence the judge (see 22 NYCRR 100.2[C]) and must avoid any improper ex parte communications (see 22 NYCRR 100.3[B][6]). Also, a judge must dispose of all judicial matters promptly, fairly and efficiently (see 22 NYCRR 100.3[B][7]) and diligently discharge his/her administrative duties without bias or prejudice (see 22 NYCRR 100.3[C][1]).


Plea Bargaining - Background and Reconsideration of Prior Opinions


         We recognize, given New York’s court case volume, plea bargaining is common, even necessary (see Opinion 96-132; cf. Opinion 04-95 [judicial candidate may not promise to abolish “the lawful and accepted practice of plea bargaining in criminal cases” in his/her court]).2


         While some aspects of plea bargaining raise primarily legal questions,3 we have nonetheless addressed “the permissible scope of judicial participation in settlement conferences” (Opinion 99-148), following a judge’s highly publicized removal from office for attempting to coerce a plea offer and other misconduct (Matter of Mulroy, 94 NY2d 652 [2000]).4 We concluded that judges may hold or otherwise facilitate settlement conferences, as long as their efforts are “not intended to (1) further the judge’s convenience or personal interests; (2) coerce a disposition, or (3) otherwise give an appearance of impropriety” (Opinion 99-148).


         We have also advised a judge may “explain to the parties why the judge has rejected a proposed plea agreement, as long as the explanation is based on legitimate concerns and does not involve the judge in improper ex parte communications” (Opinion 09-216).


         Conversely, we have consistently advised that judges must maintain their independence from prosecutors and not participate or assist in “what is essentially the work of the prosecutor’s office” (Opinion 00-95; accord Opinion 10-113). Therefore, a judge or court clerk may not distribute the prosecutor’s printed materials to defendants, advise defendants of a specific plea agreement the judge anticipates the prosecutor will offer and explain its purported advantages, or otherwise assist the prosecution in implementing its plea reduction procedures (see e.g. Opinions 14-12; 13-33; 12-68; 10-177; 10-113; 08-11; 00-95; 96-132).


         We stated in other opinions, “the court should not be the source or inspiration for a plea agreement as it would create an appearance of partiality and an indication that the judge is predisposed towards the defendant’s guilt” (Opinion 09-118; accord Opinions 16-09; 14-175; 14-12; 13-33; 96-132). Also, we suggested, sometimes in passing or when describing prior opinions, that judges cannot “initiate,” “facilitate,” “encourage, suggest, or request” a plea agreement and must not be seen as “advocating a negotiated plea” (Opinions 17-34; 16-09; 15-56; 14-175; 10-196; 10-170/11-03; 10-32/10-48; 09-105; 07-22; 96-132).


         On further consideration, we believe some of this language in prior opinions, if interpreted too strictly, could undermine a judge’s ability to handle a heavy criminal caseload. Might a judge be seen as impermissibly initiating, suggesting, or inspiring a plea agreement if he/she asks if the prosecution and defense have consulted about possible voluntary resolution of the case? A judge must, of course, proceed with caution when discussing negotiated pleas in a criminal case, mindful of defendant’s constitutional rights and the prosecution’s burden of proof. The judge must take care not to give the impression he/she “is predisposed towards the defendant’s guilt” (e.g. Opinions 16-09; 14-175; 14-12; 13-33; 10-196; 09-118), or is acting as an agent or intermediary for the prosecution (see e.g. Opinions 16-09; 15-197[A]; 14-12; 12-68; 10-196 [judge may not accede to prosecutor’s request that judge conduct plea allocutions in a particular manner or distribute notices furnished by the prosecutor]; 10-177; 00-95; 98-57). The judge must avoid any appearance he/she is attempting to coerce a disposition or acting in furtherance of his/her own personal convenience or interests (see Opinion 99-148). In general, to avoid any possible appearance of impropriety or coercion, the judge should satisfy him/herself that the defendant is aware of all his/her options, including the right to plead not guilty and go to trial before a fair and impartial arbiter (see Opinions 14-12; 13-33; 00-95; 99-82).


         However, we wish to emphasize our belief that a judge may - consistent with the judge’s neutral role and subject to cautions noted above - take reasonable steps to initiate, suggest, or facilitate plea agreements in criminal cases, provided the judge does not coerce a disposition or act to further his/her own personal convenience or interests. For example, a judge should not “indicate a [personal] preference” that a defendant plead guilty nor “singl[e] out a negotiated plea as the appropriate way to proceed in disposing of the defendant’s case” (Opinion 99-82).


         It is critical to distinguish between permissible and impermissible judicial involvement with initiating pleas, considering both the practical and daily realities in criminal courts and the strong administrative guidance of the Chief Judge’s Excellence Initiative. We firmly believe a judge must not simply distribute written forms or instructions prepared by a prosecutor, or other documents that encourage defendants to plead guilty (see e.g. Opinions 13-33; 12-68; 10-177; 00-95; 98-58; 98-57; 96-132), including a form requiring him/her “to ‘check-off,’ [a] preference” from a list of all legal options (Opinion 99-82). We distinguish between written and oral communications here, as we believe face-to-face discussions in open court, with both the prosecution and defense represented, provide significant protections against possible misunderstandings and/or perceptions of unfair treatment.


         When initiating talk of a possible plea, a judge must carefully avoid threats and coercion. For example, a judge must not say “I insist you plead guilty,” or “I prefer you plead guilty,” or “I will punish you if you don't plead guilty,” or “I will set bail if you don't plead guilty.” All these are coercive and forbidden. But, we believe a judge may, in open court, advise a defendant of his/her initial assessment of the strength of the proffered evidence, as well as the likely range of sentence if the prosecution sustains its burden to prove a defendant’s guilt after trial. The judge may then use this to suggest a defendant should very seriously consider a particular plea bargain the prosecution has offered (if any). Moreover, even if the prosecution has not offered a plea, a judge may still take the initiative to let the defendant know what sentence the judge would be willing to consider or impose if the defendant decided to plead guilty.5 Making clear what the disposition would be if the defendant decided to plead guilty does not, without more, demonstrate any predisposition toward guilt or any prejudgment on the case’s merits. Indeed, the current focus on speedier case resolution central to the Chief Judge’s Excellence Initiative speaks to this model: A decision should be made early whether an accused will plead guilty, necessarily requiring a discussion of terms; absent a plea, the case should move rapidly to trial. It is fitting for a judge to say a failure to plead guilty will not create endless adjournments, but will instead result in a prompt trial subject to applicable constitutional and statutory provisions.


         Our prior opinions are thus modified to conform to this opinion.6 We note the outcome of Opinions 17-34; 16-09; 13-33; 12-68; 10-177; 00-95; 99-82; 98-58; 98-57; 96-132 remains as is, while Opinions 14-12 and 07-22 are partially overruled. A portion of the conduct in Opinion 14-12 remains impermissible, as a judge must not create an impression he/she is speaking for the prosecutor and/or aligned in interest with him/her, but the judge may describe a sentence he/she would be willing to impose if the defendant were to plead guilty; and explain its advantages in a non-coercive way consistent with this opinion.


The Present Inquiry


         Turning to this inquiry, it appears the judge’s suggestions are based on his/her observations and experience as a judge, and presumably other legally appropriate criteria. Just as the judge may explain to both sides in open court why a proffered plea bargain is unacceptable (see Opinion 09-216), we believe he/she may also suggest alternative terms or conditions for the parties’ consideration, once the defendant has affirmatively manifested his/her willingness to plead to a lesser charge.7 Further, such suggestions for amending a agreed plea already submitted for an approval cannot reasonably create an impression the judge is predisposed to the defendant’s guilt (cf. Opinions 09-118; 96-132).


         The judge, of course, must: non-coercively present any alternative plea agreement terms (Opinion 99-148); not act to further the judge’s convenience or personal interest (see id.); avoid an appearance of impropriety (see id.); satisfy him/herself a defendant knows all options, including the right to plead not guilty (see Opinions 13-33; 09-118), and avoid improper ex parte communications (see Opinion 09-216).



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1 The defendant would plead guilty to the original DWI misdemeanor with the sentence adjourned for one year and agree to complete a drinking drivers’ program and other conditions. If all conditions are satisfied, the original DWI charge would be reduced to DWAI at the time of sentencing.


2 A “blanket refusal ... to consider a plea bargain proposal under any circumstances” suggests an impermissible predisposition “to decide matters in a certain way, without consideration of all factors permitted by law” (Opinion 04-95).


3 For example, questions about the proper procedure for allocution (see Opinions 10-196; 10-114) and the permissibility of specific plea agreements (see e.g. Opinions 16-92; 15-34; 14-152; 07-22) often turn on resolution of legal issues.


4 The inquiry was submitted in 1999, in reaction to the Commission’s determination, but we did not decide it until after the Court of Appeals decided the matter.


5 Of course, the judge must be careful to frame his/her comments in terms of his/her own judicial role, rather than purporting to speak on behalf of the prosecutor (see Opinion 14-12 [judge must not predict that the prosecutor “will, I believe, offer you a plea bargain,” describe the anticipated terms, and then “ask the prosecutor to confirm whether the plea described is being offered”]).


6 We will add a note to affected opinions referring readers to the present opinion for a discussion of a judge’s ability to initiate, suggest, or facilitate a plea agreement in criminal cases.


7 We anticipate that a defendant’s interest in a negotiated plea will ordinarily come to the judge’s attention when the defendant and prosecutor present a negotiated plea to the court for judicial approval.