Suppose that after judgment is entered a defendant wants to challenge a plea. Maybe he alleges that the plea wasn’t knowing and voluntary. Or maybe he claims that the judge imposed an illegal sentence. Can the defendant do this? I like to break this question into two parts: (1) Does the claim survive the plea? (2) If so, what procedural mechanism can be used to assert it? This post addresses both issues. Continue reading
Tag Archives: plea bargaining
Once a plea is entered pursuant to a plea agreement, the parties are bound by the agreement and failure to comply with it constitutes a breach. Occasionally questions arise about whether a breach has occurred and if so, what remedy should apply. Continue reading →
Sometimes a party to a plea agreement has buyer’s remorse and wants to get out of the deal. The standard for evaluating such a request varies, depending on when the motion is made. Continue reading →
The Supreme Court decided two cases last week about ineffective assistance of counsel during plea bargaining. The cases, Lafler v. Cooper and Missouri v. Frye, made a big splash in the media. Locally, they were featured on front page of the News and Observer. Nationally, they’ve been the talk of the New York Times and have been relentlessly discussed in the blogosphere. They’ve also caused some alarm among North Carolina prosecutors and judges, some of whom fear that any defendant who turns down a plea offer, goes to trial, and gets a sentence more severe than what was offered will now have a meritorious claim of ineffective assistance.
The facts of Lafler are as follows. The defendant “pointed a gun toward [the vicitim’s] head and fired.” He missed, the victim fled, and the defendant chased after her, wounding her “in her buttock, hip, and abdomen.” He was charged with assault with intent to murder and three other offenses. Prior to trial, the prosecutor offered to dismiss two of the charges and to agree to a sentence of 51 to 85 months on the other two if the defendant would plead guilty. “In a communication with the court [the defendant] admitted guilt and expressed a willingness to accept the offer,” but he later rejected the offer, apparently because his lawyer advised him that the prosecution could not establish an intent to murder due to the fact that the victim had been shot below the waist. The defendant went to trial, was convicted on all counts, and was sentenced to 185 to 360 months.
The defendant then sought post-conviction relief, arguing that he had received ineffective assistance of counsel when his attorney had advised him to reject the plea offer. He was unsuccessful in Michigan’s state courts, but a federal district court ruled in his favor and ordered specific performance of the original plea offer. The Sixth Circuit affirmed, and the Supreme Court granted review.
Justice Kennedy, writing for a five-Justice majority, began by stating that the Sixth Amendment right to the effective assistance of counsel extends to pretrial stages, including plea bargaining. Referring to the two-pronged standard for ineffective assistance claims established by Strickland v. Washington, 466 U.S. 668 (1984), the majority noted that the parties agreed that defense counsel had performed deficiently in advising the defendant that he could not be convicted of the assault charge. The issue, then, was how to apply the prejudice prong of Strickland to cases in which the alleged harm was proceeding to what, by all accounts, was a fair and impartial trial.
The Court held that a defendant may establish prejudice by showing that but for counsel’s deficient performance, (1) the defendant would have accepted a plea offer, (2) the court would have approved it, and (3) it would have resulted in a less severe sentence than that actually imposed after trial. It noted that most of the federal circuits have already adopted this test, and rejected the state’s suggestion that so long as the defendant received a fair trial, he had received all that he was entitled to under the Sixth Amendment:
In the end, [the state’s] arguments amount to one general contention: A fair trial wipes clean any deficient performance by defense counsel during plea bargaining. That position ignores the reality that criminal justice today is for the most part a system of pleas, not a system of trials. Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. . . . [T]he right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining plays in securing convictions and determining sentences.
As to the proper remedy, the Court held that it depends on the nature of the offered plea:
- If the plea bargain would have involved a guilty plea to the same crime or crimes of which the defendant was ultimately convicted at trial, so that “the sole advantage [the] defendant would have received under the plea is a lesser sentence,” then the defendant may be resentenced, and the court “may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.”
- If the plea bargain would have involved a guilty plea to crimes less serious than those of which the defendant was ultimately convicted at trial, resentencing alone may be insufficient. Instead, a court may “require the prosecution to reoffer the plea proposal. Once this has occurred, the judge can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the conviction undisturbed.”
The Court said very little about what factors a court should weigh when exercising the “discretion” referenced in both remedies, suggesting only that the defendant’s previously expressed willingness to accept responsibility, and any facts learned about the crime or crimes after the original plea offer was made, may be considered. As to the suggestion that its holding might unleash a flood of ineffective assistance claims, the Court noted that claims of this type have been recognized in the lower courts for over 30 years, and the predicted tsunami has yet to appear.
Justice Scalia wrote the principal dissent. He argued that when a defendant receives a fair trial, he has received what he is guaranteed by the Constitution. Since a defendant has no right to a plea bargain, he has suffered no cognizable harm when he receives what he is entitled to rather than what might be described as essentially a windfall offer from the prosecution. Justice Scalia, and Justice Alito in a separate dissent, also criticized the remedies established by the majority opinion, describing that portion of the majority opinion as “incoheren[t]” and “opaque.”
Frye is a companion case to Lafler. It concerns a defendant whose attorney failed to communicate a favorable plea offer to him. The defendant subsequently pled guilty on less favorable terms. He sought, and obtained, post-conviction relief based on ineffective assistance of counsel. The case reached the Supreme Court, which held that defense attorneys have a duty to communicate plea offers to their clients, and that the attorney in this case violated that principle. The Court also concluded that the defendant would likely have accepted the offer, since he later accepted a less advantageous one. However, the Court remanded the case to the Missouri state courts for further consideration on the issue of prejudice. Because the defendant had been rearrested and charged with a new crime after the offer was made, the Court thought that the prosecution might have rescinded the offer if the defendant had tried to accept it, or that the court might have rejected it. In the course of discussing the case, the Court suggested that the state may guard against later ineffective assistance claims by making plea offers formally and in writing; by tracking the processing of and response to such offers; and by noting any plea negotiations on the record before a case reaches disposition.
A few thoughts about these cases:
- The media frenzy notwithstanding, I don’t think that they’re earth-shattering. They won’t be relevant at all except in cases in which there was a trial, in which the trial resulted in a conviction, in which a plea offer was made before trial, and in which the conviction was accompanied by a sentence more severe than that which would have accompanied the plea offer. Already, we’re talking about a small fraction of all cases. Then, the defendant would need to show that counsel performed deficiently. Lafler and Frye involved very unusual facts in that regard, with counsel either failing to communicate a plea offer at all or providing legally inaccurate advice about a central issue in the case. Of course, a defendant can spuriously claim that counsel performed deficiently, but most defense attorneys already document their files in a way that will make such bogus claims very hard to win. For example, many attorneys convey plea offers to their clients in writing, or at least make written notes concerning any offer and the defendant’s response. Attorneys who have not previously done so might be well-advised to begin.
- Prosecutors and judges can take steps to try to foreclose illegitimate claims. Some of these steps were suggested by the Court in Frye. For example, prosecutors can make offers in writing and can ask for a written response. Or prosecutors can make plea offers in open court at an administrative setting, as is apparently done in at least one North Carolina district. Or they can put the status of plea negotiations on the record, in the presence of the defendant and defense counsel, before the disposition of each case. Judges may choose to engage in a brief colloquy with the defendant verifying the prosecutor’s version of events. None of these techniques will completely eliminate the possibility of a fraudulent Lafler claim, and some of them raise other issues. (For example, when a judge is informed about plea offers rejected by the defendant, the judge must be very careful at sentencing to avoid any suggestion that the judge is punishing the defendant for going to trial.)
- The Court’s remedy discussion is strange. On this point, I agree with Justices Scalia and Alito. Remember, the remedy issue doesn’t arise unless a court has already concluded that a Sixth Amendment violation has taken place, because a defendant was offered a favorable plea that he would have taken but didn’t because of counsel’s deficient performance, and the defendant suffered a more severe sentence as a result. Under such circumstances, why would a court have the discretion to deny relief? The Court seems to suggest that, in some cases, there is a Sixth Amendment right without a remedy. I suspect that in most cases, judges will and should exercise their discretion to put the defendant in the position he would have been in but for counsel’s ineffective assistance. In other words, I suspect that it will be uncommon for judges to find a Sixth Amendment violation but decline to repair it.
Sorry for the long post. As always, I welcome your thoughts on all these issues.
Suppose a defendant is indicted on charges of trafficking, possession with intent to manufacture, sell and deliver, possession of drug paraphernalia, and simple possession. Suppose further that the defendant enters into a plea agreement with the State. Under the terms of the plea agreement, the defendant will plead guilty to one count of misdemeanor possession; the State will dismiss the remaining charges and return the defendant’s personal property that was seized in connection with the investigation, including over $6,000 in cash. The plea is accepted by the judge and the defendant is sentenced to serve a 45-day sentence, suspended, placed on supervised probation for twelve months, and required to pay a fine and costs. The defendant then pays the fine and costs and begins serving the sentence. The State however, does not return the money. When the defendant moves for return of the funds, the State claims that it can’t return the money because it has been forfeited to federal and State authorities. What should the trial court do?
□ Strike the plea because specific performance is impossible?
□ Require the State to return the money?
Those were basically the facts of State v. King, a case recently decided by the N.C. Court of Appeals. In King, the trial court opted for choice one above. The trial court found that the State had breached the agreement but that specific performance was impossible; instead, the trial judge struck the plea. Although the Court of Appeals agreed that the State breached the agreement, it disagreed that specific performance was impossible and went on to order a return of the money. The court reasoned that because the State was in a better position to know whether the money had been forfeited, it bore the risk as to the mistake of fact. It explained:
[When] the district attorney entered into the plea agreement, he was capable of confirming the status of the funds prior to agreeing to return them to defendant. The money was seized from defendant and sent to the DEA the same month. The parties did not enter into the plea agreement until approximately nine months after the forfeiture . . . . The State could have easily confirmed the availability of the funds prior to the execution of the agreement but failed to do so. Therefore, the State must bear the risk of that mistake and the Court erred by rescinding the plea agreement based on a mistake of fact.
In this case, it concluded, rescission could not repair the harm to the defendant because the defendant had already completed approximately nine months of probation and had complied with all the terms of the plea agreement, including payment of fines and costs. The court reasoned that while the particular funds seized were no longer available, “money is fungible” and “there is no requirement that the exact funds seized must be returned to defendant and the State cannot avoid its obligation on this basis.” The court reversed the trial court’s order, reinstated the plea, and ordered the State to return the funds
In a lengthy paper here, I discuss pleas and plea procedures. I note that when the prosecution breaches a plea agreement the remedial options include specific performance and allowing the defendant to withdraw the plea. When determining which remedy is appropriate, courts typically consider the following factors:
- who broke the bargain;
- whether the violation was deliberate or inadvertent;
- whether circumstances have changed between entry of the plea and the present time;
- whether additional information has been obtained that, if not considered, would constrain the court to a disposition that it determines to be inappropriate; and
- the defendant’s wishes.
Although the King court didn’t expressly note these factors, they clearly weigh in the defendant’s favor.
King isn’t the first North Carolina case to have ordered specific performance as a remedy for a breach by the prosecution. See, e.g., State v. Rodriguez, 111 N.C. App. 141 (1993) (prosecutor breached promise to take no position on sentencing; ordering new sentencing hearing at which the state was to take no position on sentencing). What’s new about King is that it’s the first case to address return of money when the precise money seized has been disbursed to other authorities. King makes clear that those circumstances don’t preclude specific performance.
On Halloween, I was dressed up as a sheep, trick or treating with my daughter, Little Bo Peep. Fortunately, serious legal business was being conducted elsewhere: the Supreme Court heard oral argument in Lafler v. Cooper, a fascinating ineffective assistance of counsel case. Here’s a summary of the case, courtesy of SCOTUSblog:
Cooper shot a woman, striking her several times below the waist. He was arrested and charged with assault with intent to murder, possession of a firearm by a felon, and other charges. The state offered a plea bargain under which Cooper could plead guilty to the assault with intent to murder charge and face a minimum sentence of fifty-one to eighty-five months in prison. Although Cooper was inclined to take the plea, his counsel advised him that, because the victim was injured below the waist, the state could not establish an element of its case, i.e., intent to murder. Based on this erroneous advice, Cooper rejected the deal. Cooper was later convicted at trial and received a sentence of between 185 and 360 months in prison.
The defendant eventually sought, and obtained, federal habeas relief based on ineffective assistance of counsel. Applying the well-settled two-pronged Strickland test for ineffective assistance of counsel, he argued (1) that his attorney performed deficiently by giving him legally inaccurate advice, which (2) resulted in prejudice when he rejected the plea offer, and ultimately received a sentence three times as long as he would have received under the deal. At least by the time the case reached the Supreme Court, the state conceded that defense counsel’s advice was wrong and that the lawyer performed deficiently, but argued that the defendant had suffered no prejudice, because he had received a fair trial and had relinquished no rights based on the faulty advice.
Over at Crime and Consequences, a prosecution-oriented blog, the thinking is this: a fair trial is the benchmark way of adjudicating criminal cases. A defendant who receives such a trial can’t complain about the result. Perhaps he didn’t get a windfall — a reduced sentence obtained through plea bargaining — but there is no right to such a windfall. (For more detail, look at the posts here and here.) This point of view can be summed up in a question asked by Justice Kennedy during oral argument: “You are saying it was unfair to have a fair trial?”
The defense counters that most cases are resolved by plea bargaining, making plea bargaining a critical stage of any criminal case, a point recently acknowledged by the court in Padilla v. Kentucky. On this view, prejudice is measured not just by whether the defendant relinquished rights based on counsel’s deficient performance, but by whether the defendant received a longer sentence than he otherwise would have received. The defense contends that “the approach advocated by the state [in Lafler] has been rejected by twelve federal courts of appeals and twenty-five of the twenty-seven states in which the issue has arisen.” (I couldn’t quickly find a case directly on point in North Carolina, but in State v. Simmons, 65 N.C.App. 294 (1983), the court of appeals awarded a new trial to a defendant whose lawyer failed to communicate a plea offer to him, perhaps implicitly rejecting the idea that a defendant who receives a fair trial can never show that he was harmed by poor lawyering during plea negotiations. If you know of a case more closely on point, please let me know.)
Lafler is an interesting case. Even if the defendant prevails, there’s a question about the proper remedy. Is the defendant entitled to specific performance of the plea bargain? Is he entitled to choose whether to accept the plea offer, and to turn it down in favor of a new trial if, for example, key witnesses have died or moved? Or should his conviction simply be set aside, with the parties free to negotiate anew or to proceed to trial as they please?
The New York Times covers the case here. The oral argument transcript is available here. I should add that the case was heard along with a companion case, Missouri v. Frye, raising similar issues on what appear to be less compelling facts.
I am sometimes asked if a defendant convicted of a reportable sex crime can plea bargain his or her way out of the obligation to register. I have also been asked if a defendant convicted of a non-reportable offense can plead his or her way into registration.
A formal advisory opinion from that state attorney general’s office suggests that the answer to both questions is no. The June 24, 2002 opinion letter, available here, was issued in response to a sheriff’s inquiry as to whether a particular person was required to register as a result of a federal conviction for sexual abuse of a ward. The letter concluded that the offender needed to register because that crime is substantially similar to G.S. 14-27.7(a), intercourse and sexual offense with certain victims, an offense that is reportable here. The opinion probably could have left it at that, but it went on to say that “it is our opinion that once an offender is convicted of a reportable offense . . . . the individual is subject to registration and no authority exists to alter this requirement. . . . No exceptions exist in North Carolina’s Sex Offender Registry Program either to exclude an otherwise registerable offender from the program, or to include an otherwise non-registerable offender in the program.”
I tend to agree. At the most basic level, plea agreements purporting to excuse a defendant from the obligation to register for a reportable conviction appear to run afoul of G.S. 14-208.7, which says offenders with a reportable conviction “shall be required to maintain registration.” Just as a defendant may not plea bargain around the sentencing laws, it seems to me that he or she may not plead around the registration requirement. See State v. Wall, 348 N.C. 671 (1998) (holding a defendant was not entitled to specific performance of a plea bargain for a concurrent sentence when a consecutive sentence was required by law, notwithstanding the prosecutor’s consent).
Moreover, it’s not clear that sex offender registration is generally something the court has authority to order (or not order) at all. Only in cases involving peeping crimes under G.S. 14-202(l) and aiding and abetting under G.S. 14-208.6(4)(a) does the court have to enter an affirmative order or make findings to trigger the registration requirement. Otherwise, aside from probationers ordered register as a special condition of probation under G.S. 15A-1343(b2), registration is a matter between the registrant and the sheriff that flows from the reportable conviction alone. But see State v. Phillips, __ N.C. App. __, 691 S.E.2d 104 (2010) (referencing a trial court “order requiring defendant to register as a sex offender for the duration of his natural life”). Only since the advent of determination hearings for satellite-based monitoring have trial courts routinely entered “orders” (on forms AOC-CR-615) requiring registration. The judicial notification required under G.S. 14-208.8 for defendants who do not receive an active sentence (for which judges may use AOC-CR-261) is not an order, but rather notice to the defendant of his or her duty to register.
I’ve heard this issue might soon be before the court of appeals. If it results in a reported case I’m sure I’ll write something about it here.
Can a defendant be ordered to pay restitution based on offenses that did not result in a conviction? Of course a defendant should not be ordered to pay restitution for a charge on which he or she was acquitted. State v. Bass, 53 N.C. App. 40 (1981) (restitution order for alleged food stamp overpayments was invalid when the defendant was found not guilty of food stamp fraud). But what about the defendant who breaks into 10 different houses but is only charged and convicted—perhaps pursuant to a plea agreement—of three counts? Can he or she be ordered to make restitution for items stolen from the other seven houses?
Under G.S. 15A-1340.34(a),“[w]hen sentencing a defendant convicted of a criminal offense, the court shall determine whether the defendant shall be ordered to make restitution to any victim of the offense in question.” That provision appears to limit restitution to crimes of conviction, and our courts have generally read it that way. In State v. Wilburn, 57 N.C. App. 40 (1982), for example, a defendant was convicted of attempting to obtain property by false pretenses based on a scheme in which he would take money from grocery store owners, promising to deliver below-cost cigarettes that he never actually intended to deliver. At his trial for taking money from a grocer named Johnny Andrews, the state called another store owner, Donald Thomas, who testified that the defendant had done the same thing to him the previous year. As part of the defendant’s sentence, the trial court ordered the defendant to pay restitution for the money he took from Donald Thomas. The court of appeals held this portion of the sentence was invalid, as there was no conviction for obtaining property by false pretenses from Mr. Thomas. To allow the restitution order and then revoke the probation of one who fails to pay it would, the court said, run afoul of Article I, Section 28 of the North Carolina Constitution, which prohibits imprisonment for debt.
What if a defendant agrees to pay victims of unconvicted acts as part of a plea agreement? Some other states word their restitution statutes in a way that expressly allows this. In Idaho, for example, the court “may, with the consent of the parties, order restitution to victims and/or any other person or entity, for economic loss or injury for crimes which are not adjudicated or are not before the court.” Idaho Code § 19-5304(9). Washington law includes a similar provision. Rev. Code. Wash. 9.94A.750(5) (“[R]estitution may be ordered . . . if the offender pleads guilty to a lesser offense or fewer offenses and agrees with the prosecutor’s recommendation that the offender be required to pay restitution to a victim of an offense or offenses which are not prosecuted pursuant to a plea agreement.”). And so does the United States Code. 18 U.S.C. § 3663 (“The court may also order, if agreed to by the parties in a plea agreement, restitution to persons other than the victim of the offense.”).
Restitution is mentioned in North Carolina’s guilty plea statute, but not in a way that clearly authorizes payments to victims of unconvicted offenses. G.S. 15A-1021(c) says that a “proposed plea arrangement may include a provision for the defendant to make restitution or reparation to an aggrieved party or parties for the damage or loss caused by the offense or offenses committed by the defendant.” There’s no mention of conviction in that subsection—only offenses—which might weigh in favor of allowing agreements to pay restitution for unconvicted acts. But subsection (d) says any restitution order under subsection (c) must be in accordance with Article 81C of Chapter 15A, which brings us back to the “convicted of a criminal offense” language of G.S. 15A-1340.34.
So there’s no clear authority for ordering restitution to victims of offenses other than the crime of conviction. But there doesn’t appear to be explicit authority against it either—at least in the context of a voluntary plea agreement. The Wilburn case discussed above was not a plea, and the defendant didn’t consent to the restitution order to Donald Thomas. Other cases have said the criminal courts cannot compel a defendant to confess judgment against a victim—“something which is in the realm of a civil forum”—as a condition of probation. State v. Clemmons, 111 N.C. App. 569 (1993). But again, that case concerned a compelled restitution order.
Despite the lack of a clear prohibition, I see at least two problems with plea agreements to pay restitution to victims of unconvicted offenses. First, a defendant’s agreement to a condition of probation at sentencing does not preclude him or her from challenging the condition later at a probation violation hearing. G.S. 15A-1342(g) (“The failure of a defendant to object to a condition of probation imposed pursuant to G.S. 15A‑1343(b1) at the time such a condition is imposed does not constitute a waiver of the right to object at a later time to the condition.”); State v. Cooper, 304 N.C. 180 (1981). If the defendant successfully challenged the condition at that point, the victim might be left out in the cold—particularly if the statute of limitations on a related civil suit had already run. (Ordinarily G.S. 1-15.1 would operate to toll the statute of limitations on a related civil action, but that law is limited to “damages arising out of the offense for which the defendant was convicted.”) Second, I think even a voluntary restitution order might run afoul of the North Carolina Supreme Court’s admonition against “use of the criminal process to enforce the payment of a civil obligation”—the very “oppressive action which [Article I, Section 28 of the state constitution] was designed to forbid.” State v. Caudle, 276 N.C. 550 (1970).
Given these concerns about the validity of restitution orders for unconvicted acts, district attorneys might, in cases involving multiple victims, consider structuring plea agreements around consolidated judgments or concurrent sentences in lieu of dismissing some of the charges. Your thoughts?
The court of appeals decided State v. Salvetti this week. The case involves several interesting issues, but I want to focus on the court’s approval of “package deal” plea bargaining.
In Salvetti, the defendant and his wife were charged with abusing their son. The defendant entered into a plea bargain, under which he pled guilty to Class E felony child abuse in exchange for the dismissal of a charge of Class C felony child abuse. His wife entered into what appears to have been a similar arrangement. Subsequently, the defendant moved to withdraw his plea, alleging in part that he was innocent and that he entered into the plea bargain only because it was part of a package deal, i.e., because the state’s plea offer to his wife was contingent on the defendant pleading guilty as well. This, he asserted, amounted to “improper pressure” to plead guilty in violation of G.S. 15A-1021(b) and the Constitution. There’s some support for this argument in Bordenkircher v. Hayes, 434 U.S. 357, 365 n. 8 (1978), where the Court noted that a plea bargain involving leniency for a third person “might pose a greater danger of inducing a false guilty plea by skewing the assessment of the risks a defendant must consider.”
Back to Salvetti, the trial court denied the defendant’s motion to withdraw his plea, and the court of appeals affirmed. Here’s what it said, pretty much in its entirety:
Package plea deals offer leniency for a third party that are made contingent on the defendant pleading guilty. While North Carolina appellate courts have not directly addressed the issue of the voluntariness of package deal pleas, other jurisdictions both federal and state, have found they are not per se involuntary. See United States v. Mescual-Cruz, 387 F.3d 1, 7 (1st Cir. 2004); Howell v. State, 185 S.W.3d 319, 334 (Tenn. 2006)(concluding that a majority of jurisdictions have found package pleas are not invalid per se).
The Fourth Circuit has noted that package plea deals present a greater risk of inducing a false guilty plea by altering the defendant’s assessment of the attendant risks. [United States] v. Marrow, 914 F.2d 608, 613 (4th Cir. 1990). We hold that the prosecutor did not use improper pressure to induce defendant’s guilty plea, thus defendant’s argument is without merit.
The bottom line, obviously, is that the court approved the use of package deal plea bargains. But I still recommend the following, based on a review of the case cited by the court and a number of other cases on package deals.
- Package deals should be disclosed to the court. The overwhelming majority of courts considering package deals have required that they be disclosed to the judge taking the pleas. See, e.g., Mescual-Cruz, supra; Howell, supra; In re Ibarra, 666 P.2d 980 (Cal. 1983).
- The judge taking the pleas should be especially alert to any indication that any plea is the result of one defendant’s coercion of another. Some courts have required alterations to the plea colloquy in package deal cases in an attempt to sniff out coercion, see, e.g., Ibarra, supra, but most have simply encouraged judges to be particularly vigilant.
- Although courts have generally recognized that one defendant may properly “elect to sacrifice himself” for another, United States v. Carr, 80 F.3d 413 (10th Cir. 1996), the risk of an innocent defendant sacrificing himself for another appears to be greatest when the relationship between the defendants is very close — for example, parent and child — and the punishment to be avoided by the plea bargain is very severe — for example, the death penalty. Even in such circumstances, package deals probably are not per se invalid, but both prosecutors and judges should proceed with extra caution when the stakes are high and the defendants are close.