COMMENTS PLEADING FOR FREEDOM: THE THREAT OF GUILTY PLEAS INDUCED BY THE REVOCATION OF BAIL John D. Parron* INTRODUCTION Imagine a construction worker, Barry, stopped by police officers walking home from work. In his pocket is a roll of twenty-dollar bills and a white powdery substance—left over dry wall from the house his team is currently building. The police officers do not know that he regularly works with dry wall, and immediately suspect the powder to be cocaine. One of the officers runs a field-test on the substance, and it erroneously comes back positive. Barry is arrested. With strong ties to the community and with no prior con- victions, he is able to secure a reasonable bail amount, and makes bail. While out on bail, he actively assists his public defender in preparing for his case. He secures employment records, and recruits a number of co-workers to ap- pear in court and testify on his behalf. His employer, while concerned about the time he is spending preparing for trial, has never suspected Barry of using drugs, and supports his claim of innocence. One of the conditions of Barry’s release was that he be home every night by midnight. The following week his construction team is having a birthday get-together at the foreman’s house after work, and Barry catches a ride with one of his co-workers. At around 11:00 p.m. he is ready to go, but his co- worker is slightly intoxicated and wants to wait another half hour to sober up. Thirty minutes turns into forty-five, and Barry becomes worried that he is going to miss his curfew. His co-worker agrees to drive him home, but it is already approaching midnight. On the way home, the pair gets pulled over. Suspecting the driver is intoxicated, the officer pulls them both out of the car and runs their licenses. At this point it is past midnight, and the * Articles Editor, University of Pennsylvania Journal of Constitutional Law, Volume 19. J.D., 2017 Univer- sity of Pennsylvania Law School. I am greatly indebted to the Honorable Stephanos Bibas and Professor Sandra Mayson for their invaluable feedback and support throughout the comment writ- ing process. Many thanks to Danielle Fine, Timothy Pfenninger, and Craig Castiglia for their advice and input on earlier drafts. Any errors remain my own. 137 138 JOURNAL OF CONSTITUTIONAL LAW [Vol. 20:1 officers decide to take them into the precinct. The prosecutor and Barry’s public defender show up at the precinct the next day. The prosecutor has an offer to make to Barry. In exchange for Barry’s guilty plea, he is willing to recommend to the judge that Barry be sentenced only to probation. “If you still decide you want to go to trial,” the prosecutor says, “well, then I will have your bail revoked and you can spend the next few weeks in jail until the lab results come back and we are ready for trial.” More worried about the status of his job at the construction com- pany than the probationary sentence, Barry agrees to plead guilty even though he knows he never possessed cocaine. Now consider another scenario in which the prosecutor simply motions to revoke Barry’s bail. Barry, facing weeks in jail awaiting trial, just wants the whole ordeal to end. He asks his public defender to get him a deal, and eventually pleads guilty and is sentenced to probation on the prosecutor’s recommendation. In both scenarios, it was the revocation of bail that ulti- mately affected an innocent defendant’s choice to plead guilty. Much has been written about the pressures pretrial detention places on criminal defendants.1 This Comment will explore the pressures the revoca- tion of pretrial detention can place on a defendant, and what procedures can be instituted within the confines of the U.S. criminal justice system to ease these pressures. Part I of this Comment will recount the history of bail from the founding to the Supreme Court decision of United States v. Salerno in 1987. Part II will discuss whether a prosecutor’s decision to intentionally induce a defendant to plead guilty by revoking bail will result in an invalidation of that guilty plea. Part III will explore the more likely scenario of whether a sincere revocation of bail can nonetheless invalidate a defendant’s guilty plea as involuntary. Finally, in the event that a sincere revocation cannot invalidate a guilty plea, Part IV will discuss potential alternatives to requiring a defendant to languish in jail awaiting trial. The first opportunity to mitigate the effects of pretrial detention causing a guilty plea is at the revocation hearing itself. The lack of adversarial testing at the initial bail hearing provides good reason to reconsider the initial conditions imposed, and provides an opportunity to in- stitute proper conditions in light of the entirety of the circumstances as the defendant stands before the court. Another point in which the effect of pre- trial detention can be minimized is at the plea itself. Here, if the defendant is willing and the parties are prepared, an accelerated trial date minimizes the time a defendant needs to spend in pretrial detention prior to an adjudi- cation of guilt or innocence. 1 See generally, e.g., Albert W. Alschuler, Preventive Pretrial Detention and the Failure of Interest-Balancing Ap- proaches to Due Process, 85 MICH. L. REV. 510 (1986); Samuel R. Wiseman, Pretrial Detention and the Right to be Monitored, 123 YALE L.J. 1344 (2014). Oct. 2017] PLEADING FOR FREEDOM 139 I. A BRIEF HISTORY OF BAIL In order to understand the parameters of pretrial detention, it is necessary to explore its historical foundations. Starting from the founding of America, up to the most recent significant Supreme Court challenge to pretrial deten- tion, bail has only ever served two primary regulatory goals: to ensure the defendant’s presence at trial, and to prevent the defendant from committing pretrial crimes if released pending a determination of guilt.2 Other prosecu- torial motives run the risk of being considered punishment, and running afoul of the prohibition on punishing a defendant prior to an adjudication of guilt. A. Pretrial Detention in Early America Pretrial detention in early America was derived from the English model.3 Early bail decisions consisted of two distinct parts: (1) whether the defendant was to be permitted to bail or denied bail and (2) if the defendant was per- mitted to bail, at what amount bail was to be set.4 In Colonial America, bail was a tool used solely to ensure the accused appeared at trial.5 The prohibi- tion on pretrial punishment, therefore, played a substantial role in bail argu- ments.6 Indeed, this prohibition lay at the foundation of the United States criminal justice system, and it applied to all defendants accused of a crime in its courts.7 In the early years of the United States and its Constitution, the prohibition on pretrial punishment was believed to provide criminal defend- ants with a presumption that, at least in non-capital cases, they would be 2 The latter was not legitimized until the 1980s. See infra notes 23–32 and accompanying text. 3 See June Carbone, Seeing Through the Emperor’s New Clothes: Rediscovery of Basic Principles in the Administra- tion of Bail, 34 SYRACUSE L. REV. 517, 529 (1983) (finding that the English brought the English bail statute across the Atlantic and the early colonies applied the English law verbatim). 4 Id. at 534. 5 See Clara Kalhous & John Meringolo, Bail Pending Trial: Changing Interpretations of the Bail Reform Act and the Importance of Bail from Defense Attorneys’ Perspective, 32 PACE L. REV. 800, 806–07 (2012) (finding that between 1776 and 1966 bail decisions in the colonies weighed factors that were used as proxies for a failure to appear at trial). 6 See id. at 802 (“Bail in the federal system ‘is rooted in the belief that a person who has not yet been convicted of a crime should ordinarily not spend any extended period of time in jail.’” (quoting H.R. REP. NO. 98-1121, at 16 (1984)). 7 See Coffin v. United States, 156 U.S. 432, 453 (1895) (“The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforce- ment lies at the foundation of the administration of our criminal law.”). The Court in Coffin traced the history of the presumption of innocence to the Book of Deuteronomy, the Law of Sparta and Athens, Roman Law, and Blackstone. Id. at 454–56. In my view, the terms “presumption of inno- cence” and “prohibition on pretrial punishment” are completely interchangeable. The Supreme Court, however, has stated that the presumption of innocence is nothing more than a doctrine allocating the burden of proof in criminal trials. Bell v. Wolfish, 441 U.S. 520, 533 (1979). There- fore, I will use the term “prohibition on pretrial punishment” whenever possible to be clear that I am not invoking the presumption of innocence as a doctrine. 140 JOURNAL OF CONSTITUTIONAL LAW [Vol. 20:1 eligible for release while they awaited trial.8 Even beyond the Constitution, the First Congress found it important to allow judges the discretion to admit bail in all non-capital offenses.9 This presumption held true through the nineteenth century, and allowed a great number of defendants to be eligible for release pending trial.10 Capital cases were an exception to the presumption of bail due to the grave punishment that attended such charges.