The case is ready for trial and all parties are present. From the bench, the judge makes a final attempt to resolve the case by saying “if we need to do a trial that’s fine, and I can call for a jury right now — but I’m just letting you all know that if the defendant was willing to plead to count 1 and state was willing to dismiss count 2, I’d be inclined to give supervised probation and we could get this case wrapped up today.”
Of course every county and every judge is unique, but most criminal attorneys have at least occasionally experienced some type of participation from the bench in working out a plea. So we know that it happens, but is it actually authorized by our statutes? Should it be? If it is, what are the limits, and what’s fair game for negotiation? Are the judge’s terms binding?
Background: Jurisdictional Split
Across the country, there are starkly opposing views on whether trial judges should be involved in plea negotiations at all. One recent survey found a nearly even split among the states, along with differing views among federal district courts:
Twenty-one states and Washington, D.C. bar judicial participation in plea negotiations. Twenty states now permit judicial participation in plea negotiations by either procedural rule or the common law. Two states eliminated absolute bans and permit judicial participation in limited situations. Three states discourage judicial participation. Additionally, at least seven district courts permitted judicial participation by local rules until the [United States v. Davila, 569 U.S. 597 (2013)] decision.
R. Broder, “Fair and Effective Administration of Justice,” 88 Temp. L. Rev. 357 (2016). Additionally, the ABA Criminal Justice Standard for Pleas of Guilty, 14-3.3.(d), “Responsibilities of the judge,” takes the position that a “judge should not ordinarily participate in plea negotiation discussions among the parties,” but if requested by the parties, “a judge may be presented with a proposed plea agreement negotiated by the parties and may indicate whether the court would accept the terms as proposed and if relevant, indicate what sentence would be imposed.”
Those in favor of allowing judicial participation in plea bargaining argue that it provides a number of benefits, such as providing a check against prosecutorial abuses, ensuring that defense counsel is providing adequate representation, setting an “anchor” point for the parties’ expectations during negotiation, and promoting efficient use of court resources. See Broder at 366. Those opposed to judicial participation point to the potential risk of coercion or undue influence on the defendant, questions about whether the judge will still be viewed as fair and impartial if the plea is rejected, and concerns about blurring the judge’s role as a neutral and independent actor in the judicial process. See Wayne R. LaFave, et al, “Judicial Involvement in Negotiations,” 5 Crim. Proc. 21.3(d) (Dec. 2020 Update).
There are reasonable arguments to be made in favor of either view. Which model does North Carolina follow?
North Carolina Statutes and Cases
My colleagues have written about plea bargaining in several prior posts (you can review some of them here, here, here, here, and here), and they have ably covered a number of important topics like permissible subjects for negotiation, what constitutes a breach, and the court’s role in accepting or rejecting a plea pursuant to G.S. 15A-1023. But what about when the judge is directly involved in the plea negotiation discussion? Is that allowed? Yes, according to our statutes, it is:
In superior court, the prosecution and the defense may discuss the possibility that, upon the defendant’s entry of a plea of guilty or no contest to one or more offenses, the prosecutor will not charge, will dismiss, or will move for the dismissal of other charges, or will recommend or not oppose a particular sentence. If the defendant is represented by counsel in the discussions the defendant need not be present. The trial judge may participate in the discussions.
G.S. 15A-1021(a) (emphasis added). See also G.S. 15A-1021(c) (parties may present proposed plea with sentencing recommendation to judge; judge may indicate whether he or she would concur with disposition). Moreover, the North Carolina Code of Judicial Conduct directs judges to remain independent (Canon 1) and impartial (Canon 3), and to refrain from engaging in the practice of law (Canon 5.F.), but the Code does not contain a direct parallel to the ABA Standard 14-3.3.(d) that discourages judicial involvement in plea negotiations.
Therefore, based on what the statutes say and what the Code doesn’t, North Carolina clearly falls on the “allowed” side of the jurisdictional split. However, the extent and scope of that authorization requires some clarification. The Official Commentary to G.S. 15A-1021(a) makes this interesting pronouncement about the judge’s role in the plea negotiation process: “Subsection (a) is basic. It legitimates plea negotiations, requires that the defendant be represented by counsel, and prohibits the judge from taking an active role in the actual striking of any bargain” (emphasis added).
That commentary struck me as odd. If the judge is statutorily authorized to “participate” in plea discussions, what does it mean to say that he or she is precluded from taking an “active role” in crafting the bargain? Our state Supreme Court has provided some guidance on that distinction in cases like In re Fuller, 345 N.C. 157 (1996). In Fuller, the court ultimately decided against censuring a trial judge who negotiated a guilty plea to a different offense than the one charged, primarily because the judge recognized and corrected the error on a subsequent MAR. However, the court stressed that the substance of the negotiations and the terms of any plea should have been left to the state and the defense:
Respondent erred by soliciting and accepting the plea to exceeding a safe speed. […] We emphasize to the judiciary that it is solely the responsibility of the district attorney’s office to negotiate and tender pleas. It is the responsibility of the trial judge to accept or reject a tendered plea negotiated between the district attorney and defendant. It is not within the trial judge’s province to negotiate a plea or enter judgment on a plea to a charge which is not a lesser included offense of the charge at issue.
Id. at 160-161.
The Rest of the Statute
Based on Fuller and the Commentary, there may be some cases where it could be argued that the judge undertook such an active role in negotiating the terms of the plea that he or she exceeded the authority granted by G.S. 15A-1021(a); however, the issue that arises more frequently is a concern that the judge’s involvement in the process may have unduly pressured the defendant into accepting the plea, in violation of G.S. 15A-1021(b) (“No person representing the State or any of its political subdivisions may bring improper pressure upon a defendant to induce a plea of guilty or no contest”). A defendant’s decision to plead guilty must be made freely, knowingly, and voluntarily. To preserve that right, the judge’s involvement in plea negotiations may not cross over into actively pressuring the defendant to take a plea through inducement or coercion that renders the plea involuntary, such as by threatening a longer sentence if the defendant is unwilling to plead. See, e.g., State v. Pait, 81 N.C. App. 286 (1986). In Pait, the appellate court concluded that such a threat was implied by the trial judge during the plea discussions:
While G.S. 15A–1021(a) specifically allows the trial judge to participate in plea bargain discussions, G.S. 15A–1021(b) specifically forbids any representative of the State from improperly pressuring a defendant into a plea of guilty or nolo contendere. A guilty plea that is procured through threats or intimidation is constitutionally invalid. […] Though Judge Bailey did not explicitly threaten defendant with a longer sentence, that he influenced him to plead guilty is clear from the court’s findings and the evidence supporting them. Indeed, the self-evident purpose and effect of the judge’s remarks was to provoke a plea of guilty; and Judge Ellis should have so concluded as a matter of law. […] Thus the judgments of conviction based on the involuntary pleas of guilty are vacated and the cases are remanded to the Superior Court for a new trial.
Id. at 289-90; citing State v. Benfield, 264 N.C. 75 (1965). See also State v. White, 720 S.E.2d 460 (N.C. App. 2011) (unpublished) (quoting Pait and G.S. 15A-1021(a), and holding that where defendant and his counsel were confused about the plea terms and seeking clarification, trial judge improperly “curtailed Defendant’s counsel’s inquiry and argument and asserted that Defendant could either accept the plea arrangement or proceed to trial” and those “statements could have reasonably induced Defendant’s acceptance of the plea”).
If the judge was involved in the plea negotiations and the defendant rejects the offer and goes to trial, the judge must also ensure that any punishment imposed following the trial is based solely on appropriate sentencing factors and does not raise any concerns that the defendant may have been sanctioned for rejecting the plea and going to trial. Compare State v. Poag, 159 N.C. App. 312 (2003) (where trial judge “fleshed out” the state’s plea offer by adding a provision that the active sentence would run concurrently with defendant’s other charges, judge did not err by imposing a consecutive sentence after plea was rejected and defendant was convicted at trial; the judge’s earlier statement was only “an effort to make the plea bargain more definitive and eliminate any question that defendant might have about the resulting sentence” and there was “nothing in the record that indicates that the trial court imposed a consecutive sentence on defendant as punishment for his rejection of the plea offer”) with State v. Young, 179 N.C. App. 613 (2004) (trial judge offered to sentence defendant in the mitigated range if he “pled straight up,” but warned that he would sentence in the presumptive or aggravated range if the defendant rejected the plea and went to trial, and the judge did sentence in a higher range after the trial; appellate court held that the judge’s comments indicated “an improper intent by the trial court to punish defendant for exercising his right to plead not guilty”).
Binding vs. Breach
Returning to the example in the introduction — suppose that after hearing the factual basis for the plea, the judge concluded that an active sentence was warranted instead of probation. Has the judge failed to abide by the terms of the plea agreement, or improperly coerced the defendant into pleading guilty? This may seem like splitting hairs, but I think the answer on these facts would be no. The judge only indicated that she was “inclined” to order probation; she did not guarantee that outcome. The Court of Appeals addressed a similar issue in State v. Smalls, 214 N.C. App. 562 (2011) (unpublished), where the trial judge participated in the plea discussions and pledged to consider imposing a concurrent or consolidated sentence, but ultimately imposed consecutive sentences. Concluding that the judge never guaranteed the more favorable outcome, the appellate court found no error:
[T]he record simply shows that the trial court met with counsel in chambers at the request of Defendant’s trial counsel for the purpose of discussing Defendant’s pleas and that, during the course of that meeting, the trial court agreed to consider imposing concurrent or consolidated sentences upon Defendant in the event that he pled guilty to the offenses with which he had been charged. Such conversations are expressly permitted by N.C. Gen.Stat. § 15A–1021(a). Under that set of circumstances, it was completely appropriate for the trial court to place the substance of this conversation in the record at the hearing held in connection with the entry of Defendant’s pleas and to ensure that Defendant understood that, while the trial court had agreed to “consider” entering a consolidated judgment or imposing concurrent sentences, there was no guarantee that such an outcome would occur. As a result, this portion of the record does not in any way suggest that the trial court did anything to coerce Defendant into entering a guilty plea.
Id. Conversely, if the negotiated plea did include an express sentencing guarantee and the judge failed to abide by that agreement, the defendant would presumably have grounds to withdraw his plea under G.S. 15A-1024. Given that judicial involvement in plea negotiations may be happening under less than ideal conditions, such as a brief conference held in chambers on the eve of trial, a healthy dose of caution on all sides can help avoid any headaches down the road. Judges may be understandably reluctant to offer firm sentencing guarantees before they know all the facts, just as the parties may be reluctant to enter into a binding plea without a clear picture of what the end result will be. But if a bargain can be struck that satisfies all parties, the judge’s noncoercive participation in those discussions is permissible under our statutes.