Fair and Effective Administration of Justice: Amending Rule 11(c)(1) to Allow for Judicial Participation in Plea Negotiations
Volume 88, No. 2, Winter 2016
By Rachel Broder, J.D. Candidate, Temple University Beasley School of Law, 2016 [PDF]

The Supreme Court of the United States has observed, “[T]he reality [is] that criminal justice today is for the most part a system of pleas, not a system of trials.” In federal courts, Rule 11 of the Federal Rules of Criminal Procedure governs criminal pleas. Rule 11(c)(1) reads: “The court must not participate in . . . [plea agreement] discussions.” Only a defendant’s attorney or a pro se defendant may negotiate a plea agreement with the government. Rule 11(c)(1) has attracted the attention of the bar for decades, receiving the attention of proposed amendments and fervent academic commentary. It has, however, never been amended. The American Bar Association’s (ABA) adamant opposition to judicial participation in plea negotiations has had tremendous influence, as is reflected in the rule’s unchanged language.

Until recently, some federal district courts had implemented local rules permitting a judge who was not trying the case to participate in the plea negotiations. Under this model, the judge would hear both sides of the case and make an unbiased assessment. In 2013, the Supreme Court sent a message in United States v. Davila that Rule 11(c)(1) bars all judicial participation in plea negotiations, even by a judge who is not the trial judge. The Davila decision invalidated all local rules used by federal district courts that allowed judicial participation in plea negotiations. Many states still allow judicial participation through state procedural rules or the common law.

In response to Davila, Chief Judge Claudia Wilken of the Northern District of California proposed an amendment to Rule 11(c)(1) to the Advisory Committee on the Federal Rules of Criminal Procedure in April of 2014. The Northern District’s local rule had interpreted Rule 11(c)(1) to bar participation of the trial judge in plea negotiations, but not participation of another judge. Judge Wilken suggested an amendment to Rule 11(c)(1) that would allow a federal trial judge to refer plea negotiations, “upon consent and with appropriate safeguards,” to another judge. A subcommittee considered the proposal in October 2014 but declined to take action. This Comment calls for the ABA to reconsider its position on judicial participation in plea negotiations and advocates for an amendment that allows for this participation. Because virtually all federal criminal cases result in pleas, judges should be permitted to participate in negotiations to (1) check prosecutorial power, (2) monitor defense attorney practice, (3) match the practices of state judge counterparts, and (4) reflect pre-Davila district court practices.