Coercive Plea Bargaining as Compelled Self-Incrimination: A State Constitutional Approach

Longstanding common-law rules rejected guilty pleas and out-of-court confessions induced by threats or promises. Judicial skepticism of such confessions reflected concern that individuals might falsely acknowledge guilt to secure favorable treatment or to avoid consequences threatened for claiming innocence. The United States Supreme Court properly drew on this common-law background to interpret the Fifth Amendment privilege against self-incrimination. However, later decisions declined to apply precedent grounded in these common law rules in cases involving plea bargains. The Court expressed doubt that defendants advised by competent counsel would ever plead guilty to crimes they had not committed. As a result, courts have become highly tolerant of coercive prosecutorial conduct designed to pressure defendants into pleading guilty.&nbsp;<span>In the decades since the Supreme Court shut down constitutional scrutiny of plea bargaining, evidence has accumulated that innocent defendants, represented by counsel, sometimes plead guilty because they fear risking more severe consequences if they take a case to trial. We argue that state courts should read state constitutional protections against compelled self-incrimination to limit prosecutorial conduct in the plea-bargaining process. Constitutional reform at the state level, where the vast majority of criminal cases are prosecuted, could reduce the pressure that produces unreliable guilty pleas and provoke a constitutional dialogue on prosecutorial coercion. We illustrate our thesis by showing how common law rules governing induced confessions could guide interpretation of Georgia’s privilege against self-incrimination. The Georgia Supreme Court would be well situated to initiate such a constitutional dialogue because it independently interprets the Georgia Constitution and has often departed from U.S. Supreme Court precedent difficult to justify on originalist grounds.</span>