Rise v. Board of Parole , 304 Or. 385 ( 1987 )

LINDE, J.,

concurring.

I agree that the Board of Parole did not commit a legal error by considering petitioner’s account of the crime. The district attorney made no promise in the plea agreement quoted in the Court’s opinion that the Board would not do so.¹ He said that the purpose of one “portion of this agreement” was to assure that defendant’s crime was treated as a “subcategory 2 Murder” by the Parole Board. The word “portion” could refer to paragraph 2, in which the district attorney agreed not to oppose defendant’s statement that he knew the victim or, less plausibly, it might refer to all four “obligations imposed on the State of Oregon” by the agreement. Either way, it does not promise that the Board would treat defendant’s crime as a “subcategory 2 Murder”; it only says that this is the purpose of the promise or promises that the district attorney did make. The agreement on its face shows that the Board was understood to be a separate agency which could “treat” a case one way or another and to which the prosecutor would “send a statement.” We therefore need not now decide what consequences would follow if the district attorney had purported in the name of the “the State of Oregon” to make the promise that defendant claims.

By purporting to be made for “the State of Oregon,” the agreement highlights both a formal and real problem. Formally, the “State of Oregon” certainly encompasses the Board of Parole as well as the state’s prosecutors. ORS 135.405 to 135.415 authorize “the district attorney” to enter a plea agreement in which that official may agree to do or not to do various things within his delegated authority, not to make agreements for the State of Oregon generally. Even as to prosecutions, the statute seems not to authorize a district attorney in our fragmented system to bind the State with respect to charges that have been or may be brought by another prosecutor in a different county. Plea agreements therefore should be phrased accordingly rather than as agreements made by the “State of Oregon” which “impose obligations on the State of Oregon.”

The real problem, of course, inheres in the endemic reliance on plea agreements to manage the overloaded criminal dockets of contemporary society. Plea bargaining has been much criticized, and the widespread assumption that it is indispensable has not gone unchallenged. See, e.g., Alschuler, Implementing the Criminal Defendant’s Right to Trial: Alternatives to the Plea Bargaining System, 50 U Chi L Rev 931 (1983), Langbein, Torture and Plea Bargaining, 46 U Chi L Rev 3 (1978).² It is an obstacle to consistency in the prosecution of similar cases, as demanded by the Oregon Constitution,³ because not only discretionary charging decisions but the subsequent disposition of prosecutions without trial threaten to become a function of the state of the docket and of budgeted resources more than of the actual crimes committed. It produces an appearance of hypocrisy both when crimes known to the victims and the public are not prosecuted and when a maximum sentence for what on the record is only one conviction results from taking into account other offenses that were not charged or were withdrawn in a plea agreement. On the other side, one may see plea bargaining as a necessary corrective to the inadequately checked potential of multiplying charges and consecutive sentences.

Plea bargaining sacrifices truth to pragmatic administration. The problem is that the sacrifice achieves its pragmatic goal only if defendants believe that their expectations will be fulfilled. This may include a belief that a judge will improperly impose a heavier sentence after trial than on a guilty plea, perhaps rationalized as demonstrating defendant’s contrition or acceptance of responsibility. But, as the Court points out, the Board of Parole, which determines the actual time a prisoner serves, is not bound to honor the prosecutor’s recommendation. Nor is the sentencing judge, but when a judge lets himself be informed of a tentative agreement and rejects it, or concurs and later changes his mind, the defendant is entitled to withdraw a guilty plea and demand a trial. ORS 135.432.⁴ It seems inevitable that in making the choice to accept a plea agreement or to remain independent, courts, too, are drawn into the contradiction between pragmatism and principle.

Defense counsel are obliged to advise their clients of “the alternatives available and of factors considered important by the defense counsel or the defendant in reaching a decision.” ORS 135.425. Those factors include the limited and nonbinding nature of the parts of an agreement that depend on actions of the court and of the Board of Parole, and, I should think, counsel’s assessment of their likely reactions. Inability to control or predict the Board’s reaction may remove one chip from the plea-bargaining process. By showing that the “State of Oregon” acting through its Board of Parole often will make a different choice between accuracy and efficiency from that made by the “State of Oregon” acting through its prosecutors, today’s decision correctly weights the scales a little toward accuracy and away from efficiency.

1 To repeat the text for convenience, it provided:

“The purpose of this agreement is to secure the cooperation of Mr. Rise in the prosecution and conviction of Troy Stewart. The State of Oregon is entering into this agreement because, although Mr. Rise is fully and completely guilty of the offenses he is charged with, his role in these offenses was secondary and subsidiary to the role of Troy Stewart.

“Mr. Rise agrees to meet with authorities from state law enforcement at such reasonable times and places as they may deem necessary to tell honestly, truthfully, and completely all he knows about the crimes set forth above and these persons involved in those crimes. He also agrees to appear at any grand jury, trial proceeding, or any other court proceeding in connection with these crimes and to testify fully and truthfully.

“In return for Mr. Rise’s fulfilling each and every obligation of this agreement, the State of Oregon agrees to:

“1. Allow Mr. Rise to stipulate to the facts on a charge of Murder based on this incident. This stipulation will occur after trial or plea in State v. Stewart, supra.

“2. Not oppose Mr. Rise’s truthful statement that he knew the victim, Mr. Anderson. The purpose of this portion of this agreement is to assure that this crime is treated as a subcategory 2 Murder by the Oregon Board of Parole, thereby setting Mr. Rise’s range at 10-13 years.

“3. To send a statement to the Oregon Board of Parole requesting that Mr. Rise serve 10 years. If Mr. Rise requests that the State provide the Parole Board with additional information or appear in person before the Parole Board, the State will do so.

“4. To permit Mr. Rise to continue with the appeal of the remand proceedings which resulted in this case being sent to adult court.

“These four obligations are the only obligations imposed on the State of Oregon by this agreement.”

2 Professor Alschuler summarizes the criticisms (not all of which apply in Oregon):

“Plea bargaining makes a substantial part of an offender’s sentence depend, not upon what he did or his personal characteristics, but upon a tactical decision irrelevant to any proper objective of criminal proceedings. In contested cases, it substitutes a regime of split-the-difference for a judicial determination of guilt or innocence and elevates a concept of partial guilt above the requirement that criminal responsibility be established beyond a reasonable doubt. This practice also deprecates the value of human liberty and the purposes of the criminal sanction by treating these things as commodities to be traded for economic savings—savings that, when measured against common social expenditures, usually seem minor.

“Plea bargaining leads lawyers to view themselves as judges and administrators rather than as advocates; it subjects them to serious financial and other temptations to disregard their clients’ interests; and it diminishes the confidence in attorney-client relationships that can give dignity and purpose to the legal profession and that is essential to the defendant’s sense of fair treatment. In addition, this practice makes figureheads of court officials who typically prepare elaborate presentence reports only after the effective determination of sentence through prosecutorial negotiations. Indeed, it tends to make figureheads of judges, whose power over the administration of criminal justice has largely been transferred to people of less experience, who commonly lack the information that judges could secure, whose temperaments have been shaped by their partisan duties, and who have not been charged by the electorate with the important responsibilities that they have assumed. Moreover, plea bargaining perverts both the initial prosecutorial formulation of criminal charges and, as defendants plead guilty to crimes less serious than those that they apparently committed, the final judicial labeling of offenses.”

50 U Chi L Rev at 932-33 (footnotes omitted). Interesting studies from a variety of perspectives are collected in a conference symposium, Plea Bargaining, 13 Law & Soc Rev 189 (1979).

3 The Oregon Constitution, Article I, section 20 states:

“No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.”

See State v. Freeland, 295 Or 367, 667 P2d 509 (1983).

4 ORS 135.432 provides:

“(1) The trial judge shall not participate in plea discussions, except to inquire of the parties about the status of any discussions or to participate in a tentative plea agreement as provided in subsections (2) to (4) of this section. Any other judge, at the request of both the prosecution and the defense, or at the direction of the presiding judge, may participate in plea discussions. Participation by a judge in the plea discussion process shall be advisory, and shall in no way bind the parties. If no plea is entered pursuant to these discussions, the advice of the participating judge shall not be reported to the trial judge. If the discussion results in a plea of guilty or no contest, the parties, if they both agree to do so, may proceed with the plea before a judge involved in the discussion. This plea may be entered pursuant to a tentative plea agreement as provided in subsections (2) to (4) of this section.

“(2) If a tentative plea agreement has been reached which contemplates entry of a plea of guilty or no contest in the expectation that charge or sentence concessions will be granted, the trial judge, upon request of the parties, may permit the disclosure to the trial judge of the tentative agreement and the reasons therefor in advance of the time for tender of the plea. The trial judge may then advise the district attorney and defense counsel whether the trial judge will concur in the proposed disposition if the information in the presentence report or other information available at the time for sentencing is consistent with the representations made to the trial judge.

“(3) If the trial judge concurs, but later decides that the final disposition of the case should not include the sentence concessions contemplated by the plea agreement, the trial judge shall so advise the defendant and allow the defendant a reasonable period of time in which to either affirm or withdraw a plea of guilty or no contest.

“(4) When a plea of guilty or no contest is tendered or received as a result of a prior plea agreement, the trial judge shall give the agreement due consideration, but notwithstanding its existence, the trial judge is not bound by it, and may reach an independent decision on whether to grant sentence concessions under the criteria set forth in ORS 135.415.”