# Santobello v. New York/Concurrence Douglas

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United States Supreme Court
404 U.S. 257
Santobello v. New York
Argued: Nov. 15, 1971. --- Decided: Dec 20, 1971
Mr. Justice DOUGLAS, concurring.
I join the opinion of the Court and add only a word. I agree both with THE CHIEF JUSTICE and with Mr. Justice MARSHALL that New York did not keep its 'plea bargain' with petitioner and that it is no excuse for the default merely because a member of the prosecutor's staff who was not a party to the 'plea bargain' was in charge of the case when it came before the New York court. The staff of the prosecution is a unit and each member must be presumed to know the commitments made by any other member. If responsibility could be evaded that way, the prosecution would have designed another deceptive 'contrivance,' akin to those we condemned in Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 341, 79 L.Ed. 791, and Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217.
These 'plea bargains' are important in the administration of justice both at the state and at the federal levels and, as THE CHIEF JUSTICE says, they serve an important role in the disposition of today's heavy calendars.
However important plea bargaining may be in the administration of criminal justice, our opinions have established that a guilty plea is a serious and sobering occasion inasmuch as it constitutes a waiver of the fundamental rights to a jury trial, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, to confront one's accusers, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, to present witnesses in one's defense, Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019, to remain silent, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, and to be convicted by proof beyond all reasonable doubt, In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368. Since Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009, this Court has recognized that 'unfairly obtained' guilty pleas in the federal courts ought to be vacated. In the course of holding that withdrawn guilty pleas were not admissible in subsequent federal prosecutions, the Court opined:
'(O)n timely application, the court will vacate a plea of guilty shown to have been unfairly obtained or given through ignorance, fear or inadvertence. Such an application does not involve any question of guilt or innocence.' Id., at 224, 47 S.Ct., at 583.
Although Kercheval's dictum concerning grounds for withdrawal of guilty pleas did not expressly rest on constitutional grounds (cf. Frame v. Hudspeth, 309 U.S. 632, 60 S.Ct. 712, 84 L.Ed. 989), Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830, clearly held that a federal prisoner who had pled guilty despite his ignorance of and his being uninformed of his right to a lawyer was deprived of that Sixth Amendment right, or if he had been tricked by the prosecutor through misrepresentations into pleading guilty then his due process rights were offended. In Walker, the petitioner was granted an evidentiary hearing to prove his factual claims in anticipation of vacating the plea. Accord: Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302; Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309. In Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473, the defendant alleged that when he threatened to tell his lawyer of private promises made by an Assistant United States Attorney in exchange for a proposed guilty plea, the prosecutor threatened additional prosecutions. Although the Government denied them, the Court held that if the allegations were true, then the defendant would be entitled to have his sentence vacated and the matter was remanded for an evidentiary hearing.
State convictions founded upon coerced or unfairly induced guilty pleas have also received increased scrutiny as more fundamental rights have been applied to the States. After Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, the Court held that a state defendant was entitled to a lawyer's assistance in choosing whether to plead guilty. Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398. In Com. of Pa. ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126, federal habeas corpus was held to lie where a lawyerless and uneducated state prisoner had pleaded guilty to numerous and complex robbery charges. And, a guilty plea obtained without the advice of counsel may not be admitted at a subsequent state prosecution. White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193. Thus, while plea bargaining is not per se unconstitutional, North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S.Ct. 160, 167-168, 27 L.Ed.2d 162; Shelton v. United States, 242 F.2d 101, aff'd en banc, 246 F.2d 571 (CA5 1957), a guilty plea is rendered voidable by threatening physical harm, Waley v. Johnston, supra, threatening to use false testimony, ibid., threatening to bring additional prosecutions, Machibroda v. United States, supra, or by failing to inform a defendant of his right of counsel, Walker v. Johnston, supra. Under these circumstances it is clear that a guilty plea must be vacated.
But it is also clear that a prosecutor's promise may deprive a guilty plea of the 'character of a voluntary act.' Machibroda v. United States, supra, 368 U.S., at 493, 82 S.Ct., at 513. Cf. Bram v. United States, 168 U.S. 532, 542-543, 18 S.Ct. 183, 186-187, 42 L.Ed. 568. The decisions of this Court have not spelled out what sorts of promises by prosecutors tend to be coercive, but in order to assist appellate review in weighing promises in light of all the circumstances, all trial courts are now required to interrogate the defendants who enter guilty pleas so that the waiver of these fundamental rights will affirmatively appear in the record. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418; Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. The lower courts, however, have uniformly held that a prisoner is entitled to some form of relief when he shows that the prosecutor reneged on his sentencing agreement made in connection with a plea bargain, most jurisdictions preferring vacation of the plea on the ground of 'involuntariness,' while a few permit only specific enforcement. Note: Guilty Plea Bargaining: Compromises By Prosecutors To Secure Guilty Pleas, 112 U.Pa.L.Rev. 865, 876 (1964). As one author has stated, the basis for outright vacation is 'an outraged sense of fairness' when a prosecutor breaches his promise in connection with sentencing. D. Newman, Conviction: The Determination of Guilt or Innocence Without Trial 36 (1966).
This is a state case over which we have no 'supervisory' jurisdiction; and Rule 11 of the Federal Rules of Criminal Procedure obviously has no relevancy to the problem.
I join the opinion of the Court and favor a constitutional rule for this as well as for other pending or oncoming cases. Where the 'plea bargain' is not kept by the prosecutor, the sentence must be vacated and the state court will decide in light of the circumstances of each case whether due process requires (a) that there be specific performance of the plea bargain or (b) that the defendant be given the option to go to trial on the original charges. One alternative may do justice in one case, and the other in a different case. In choosing a remedy, however, a court ought to accord a defendant's preference considerable, if not controlling, weight inasmuch as the fundamental rights flouted by a prosecutor's breach of a plea bargain are those of the defendant, not of the State.
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN and Mr. Justice STEWART join, concurring in part and dissenting in part.

## Notes

* ↑ In 1964, guilty pleas accounted for 95.5% of all criminal convictions in trial courts of general jurisdiction in New York. In 1965, the figure for California was 74.0%. President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts 9 (1967).
* ↑ In 1964, guilty pleas accounted for 90.2% of all criminal convictions in United States district courts. Ibid. In fiscal 1970, of 28,178 convictions in the 89 United States district courts, 24,111 were by pleas of guilty or nolo contendere. Report of Director of Administrative Office of U.S.C.ourts, for Period July 1 through Dec. 31, 1970, Table D-4, p. A-26.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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