Testify: Conscientious Refusal to Plea Bargain (1 of 2)

I spent a few hours in municipal court the other day fighting a traffic ticket. Of the several dozen defendants in court that day, I was the only one to demand a trial by pleading not guilty. In insisting so conspicuously and anomalously on my innocence–annoying even my attorney–I began to wonder about the guilt or innocence of the other defendants in court. No doubt some were guilty as charged, but I found it hard to believe that all of them were. What, I wondered, was the point of driving to court in a Mercedes or BMW, hiring a high priced attorney, and wasting hours to cop a plea in a case that had “reasonable doubt” written all over it? But lots did.

Those taking plea bargains were required in each case to “stipulate as to probable cause” as a condition of their plea, in other words to issue a mea culpa while getting the State off the hook. A “stipulation as to probable cause” is a “knowing, voluntary” declaration that the police had probable cause to make the stop that led to the charge under adjudication. And as Brand Nubian points out, you needn’t break any laws to trigger probable cause.

It’s worth noting that the standard required for a vehicle stop is not probable cause, but reasonable suspicion, a weaker standard. Since reasonable suspicion sans probable cause is sufficient for a vehicle stop, a police officer has no particular reason to make a determination of probable cause before stopping a vehicle. But since probable cause is the more stringent standard, the thought seems to be that the defendant’s stipulating as to probable cause immunizes the police department against any future legal challenge. It strikes me as implausible to think that the average vehicle stop actually satisfies probable cause: why would the officer meet a standard he has no obligation to meet when he can stop you by meeting a less stringent standard that was designed precisely to avoid the need to satisfy probable cause? I don’t know, but I’m willing to bet that court records indicate that they nearly always do.

Despite their pro forma assent to the “knowing, voluntary” nature of their declarations, I doubt that a single defendant who made the declaration regarded doing so as voluntary, or had the foggiest idea what a “stipulation as to probable cause” was, or indeed, what probable cause itself was. Not that it mattered. What mattered was that the ritual of “stipulating as to probable cause” had the power to get the stipulator out of a jam, whether to plead to a lesser charge, or to get a dismissal. That in turn meant, according to the circumstances, a diminution in fines owed, an increased insurance premium avoided, points avoided on one’s license, a license retained, jail time avoided, and in the case of undocumented aliens, a deportation staved off. So the incentives for defendant participation in the stipulation game were obvious and irresistible.

The incentives for the State’s participation were less obvious, but still real–administrative efficiency in the effectuation of production-line justice, for one. More subtly, the State knew that by getting defendants to “stipulate,” it would get immunity from civil liability, and perpetuation of the illusion that the State regularly meets or exceeds its evidential burden in making vehicle stops. Not bad for cases where the original charges were themselves dropped

It didn’t seem to bother anyone–not the judge, not the prosecutor, not the defense attorneys or the defendants–that legal fictions aside, these stipulations were the opposite of “knowing,” “voluntary,” or for that matter, even approximately true. Translated into ordinary English, “I knowingly and voluntarily stipulate as to probable cause” actually meant:

Having no idea what I’m being asked to say, and no idea why I’m being asked to say it, but operating under duress, and seeking nothing but relief from it, I will say whatever the court asks me to say, as long as doing so gets me out of here as fast as possible, and eases my burdens once I walk through the courtroom doors.

Watching this charade, I found myself thinking of Al Pacino’s Shylock in The Merchant of Venice, huddled on the ground after his defeat at Portia’s hands–forced to renounce his faith and adopt another one while mumbling, “I am content.” It’s not a pretty picture, but lesser versions of it happen every day, thousands upon thousands of times a day, in courtrooms across the land.

Probable cause is itself a notoriously elusive concept, and in some ways a quasi-fictional one. From William Rehnquist’s majority decision in Illinois vs. Gates (omitting internal citations):

Perhaps the central teaching of our decisions bearing on the probable cause standard is that it is a “practical, nontechnical conception.” “In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” “Long before the law of probabilities was articulated as such, practical people formulated certain common sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. …As these comments illustrate, probable cause is a fluid concept–turning on the assessment of probabilities in particular factual contexts–not readily, or even usefully, reduced to a neat set of legal rules.

So the “cause” in probable cause doesn’t really have to be all that probable. Unsurprisingly, in “everyday life,” ordinarily reasonable and prudent non-cops lack the authority to conduct traffic stops, searches, seizures, or arrests, which makes the sample size of “ordinary men making judgments of probable cause” problematically small. Inevitably, then, the “ordinary man” standard becomes the “ordinary cop” standard, leaving us with the claim that probable cause is satisfied when a cop thinks that it was probable that it was satisfied–which is pretty often. The probabilities then get upgraded when a desperate defendant “agrees.”

“Stipulation as to probable cause” is, in this context, a legal fiction added to something that already resembles one. That’s mostly unobjectionable to its authors–except that we’re all its authors. We participate in a system that depends on such fictions, and the State depends on our desperation to prop them up. “Stipulation as to probable cause” has, though our efforts, become a fraudulent maxim that we will each day to become nation-wide law.

Having made all these snarky complaints, I have a positive proposal to make–one that requires far more in the way of argumentation than I can give in a blog post, but whose rationale I want to sketch out. For now, I’ll just state it. Next post, I’ll describe it. Maybe some day, I’ll cook up a real argument for it.

In Rawlsian language, I think of the duty in question as the conscientious refusal to engage in plea bargaining.* As I conceive this duty, if you…

  1. have reasonable doubt about the truth of a criminal charge against you (including traffic offenses),**
  2. have the resources to dispute the charge,
  3. don’t stand to face catastrophic consequences if you lose your case, and
  4. have a good chance of winning,

you have a perfect duty in the Kantian sense to plead not guilty to the charge rather than pleading guilty and bargaining over it.*** This is, I realize, a moral mouthful–one (to mix various metaphors) where the Devil lies in the details, and the proof is in the pudding. But more on that when I re-adjourn.

*It’s more Rawlsian-sounding language than a genuinely Rawlsian thought. Conscientious refusal, on Rawls’s view, is a conscience-motivated refusal to obey a legal but flagrantly unjust command. The conscientious refusal to plea bargain, on my view, is a conscience-motivated choice to exercise one’s legal rights in a certain way. The only thing common to them is that they’re both conscientious refusals of something in a legal context. But where Rawlsian refusals are illegal, the ones I have in mind are perfectly legal.

**Most traffic violations are administrative offenses rather than crimes, but they are sufficiently crime-like to get caught in my dragnet: they’re enforced by the police, and subject to the “reasonable doubt” standard; further, you’re required to plead guilty or not guilty to them under trial and investigative procedures that closely resemble those in criminal proceedings.

Obviously, there are differences: some traffic offenses involve strict liability rather than mens rea (as crimes do), and most traffic offenses carry lesser penalties than most crimes. Arguably, traffic offenses involve less moral turpitude than crimes, though this is hardly obvious: traffic court judges can be awfully moralistic, as can prosecutors, and many “real” crimes (in the sense of being legally on the books) seem morally laughable to most people–or at least to most normal people. I’m sure there are people out there who feel righteous indignation at the thought of someone’s smoking pot, or of someone’s getting a hand job from a consenting and well paid masseuse, or of being paid a sub-minimum but non-exploitative wage, but I tend not to associate with such morally dubious weirdos.

Finally, there is ambiguity as to whether defenses that work in criminal cases work in traffic court (e.g., entrapment), but the ambiguity doesn’t erase the real similarities between traffic violations and crimes.

***The “Kantian” label is more a matter of convenience than of taxonomic accuracy. Three points here:

(a) By a “perfect duty in the Kantian sense,” I simply mean a stringent or unexceptional duty, e.g., “If you satisfy description D, where D consists of conditions 1-4, you must conscientiously refuse to plea bargain.” I’m open to the possibility that there are more than four conditions involved, but whether four or more, the issue remains the same: the number of conditions doesn’t affect the perfect nature of the duty, as long as the conjunction of the conditions entail a stringent version of the duty. To belabor what may be obvious: a perfect duty can be stated in conditional form, in which case the stringency of the duty arises from the content of the consequent, not the antecedent. (Another belaboring of the obvious: I don’t mean that the duty can be enforced by civil legislation, which is one meaning that interpreters have given to “perfect duty.”)

(b) As I think of it, the conscientious duty to refuse to plea bargain is simultaneously a duty to self and a duty to others (something I’ll explain in the next post). I’m not sure that Kant allowed for duties that cut across the self/other distinction in this way. So in this sense, the duty might not be all that Kantian.

(c) Though perfect, I don’t mean to imply that the duty in question is categorical in Kant’s sense; I mean to remain agnostic on that issue, at least here. It’s conceptually possible for a moral principle to be a hypothetical imperative but still demand a perfect duty. So the duty I describe, though meant to be perfect, is not meant to be categorical.

9 thoughts on “Testify: Conscientious Refusal to Plea Bargain (1 of 2)

  1. “I’m not sure that Kant allowed for duties that cut across the self/other distinction in this way.”

    Maybe not, but I assume one would at least agree that one can violate one type of duty BY violating another. For example, committing suicide to avoid repaying a debt.


    • I certainly agree that you can violate one type of duty by violating another, but I don’t know one way or another whether Kant did. The way he presents things in the Groundwork, one gets the impression that the four-fold distinction between perfect duties to self, perfect duties to others, imperfect duties to self, and imperfect duties to others was meant to be mutually exclusive and jointly exhaustive of duties.

      That would imply that in cases where you violate duty X by violating duty Y, one of the two is the fundamental duty violated, and characterizes the act as such. In your example, the maxim would be (very approximately), “When things get too rough for me to handle, I commit suicide,” so that the act is fundamentally a suicide with non-payment of debt as a foreseeable consequence. Even if non-payment is the intended consequence, the maxim suggests that suicide is fundamental to the description of the act. Not that I agree with that way of conceptualizing things myself. I just think there’s a tendency in Kant to want to settle on The Single Correct Description of the Act in order to preserve the mutual exclusivity of the four categories of duty. But I can’t pretend to have studied the issue in any great detail.

      The case I have in mind, though, is not one where you violate one duty by another, but where you simultaneously violate two duties, full stop. The point I want to make in the next installment is that if you satisfy the four conditions I mention (maybe a few more), you have a duty to plead not guilty; your failure to plead not guilty violates a duty of self-respect and involves free riding. I don’t know that the one violation is more fundamental than the other. I think it’s more obvious that both are violated.


  2. I don’t have any objections to your duty of conscientious refusal to engage in plea bargaining, as it’s stated. I do, though, have some doubts about the strength of your denunciation of the system as you describe it. First of all, I don’t think we’re in a good position to determine with much plausibility how many of the charges in court that day (or any day in any similar court) were true. Offhand, it strikes me that I have seen (and committed) far more traffic violations than stops, and while there’s no doubt that police stop people who haven’t committed violations (and in cases where they did not have probable cause), I don’t see any good reason to believe that many, or even any, of the people charged with you in court that day were not guilty. The chances that none of them have ever committed a traffic violation seem next to nothing – why should it be so hard to believe that all of them were guilty, and knew it?

    I’m also not convinced that we should regard these declarations as non-voluntary simply because people make them to avoid greater risks. You say that they’re made under duress, but on its face it’s no more made under duress than the choice to take a job washing dishes at Olive Garden in order to avoid getting evicted for not paying my rent; I don’t want to wash dishes at Olive Garden, but I want to avoid eviction more, and if washing dishes at Olive Garden is the best available way to avoid eviction, then taking the job is an ordinary case of voluntarily doing something onerous as a means to an end. By contrast, if I go to the Olive Garden and the manager credibly threatens to break both my legs unless I take a job washing dishes for him, when I accept the job I’m acting under duress and perhaps to that extent my act is non-voluntary. But surely the difference is not only that the manager is threatening violence against me if I refuse, but that he’s treating me unjustly in doing so; it would not be unjust, by contrast, to evict me from an apartment for which I repeatedly fail to pay rent despite having agreed to pay rent. The options that the court offers are to stipulate as to probable cause or to defend your innocence of the charge, with the risk of being found guilty: the risks are real enough that it makes sense for some people to accept the plea bargain despite their innocence, but it’s not clear to me that there’s any injustice being done in offering someone those options. That’s not to say that I think there definitely isn’t any. It seems to depend on the details of what I get to avoid by taking the bargain; you mention jail time and deportation, but presumably those will not be in the cards for many or even most people charged with traffic violations, and if they are, the problem – if there is one – would seem to lie in the laws that enable a person to be kept in jail for a traffic violation and the injustice of our immigration system, not in the plea bargain itself.

    It does seem clear to me, though, that the whole practice is shady to the extent that people don’t actually know what they’re declaring, and I suspect you’re right that many people don’t. In fact, a quick Google search of ‘stipulation of probable cause’ leads directly to message boards with people who signed stipulation of probable cause forms asking what the hell they are. Insofar as they don’t know what it is they’re doing, then, the stipulation isn’t genuinely (as opposed to legally) voluntary. In principle, though, this problem ought to be handled by lawyers and cops doing their job and explaining what the hell is going on. In that respect, it doesn’t seem to be a problem with the bargain itself.

    Perhaps I’m not able to work myself up over this because I find it much less plausible than you do that many people taking these bargains are not guilty. For those who are, it seems like a fair enough deal. For those who aren’t and who meet the criteria of your duty, there seems to be little strong incentive to take the deal in the first place. For those who aren’t guilty and don’t meet the criteria because they lack the resources to dispute the charge or would face catastrophic consequences for losing the case, I’m not sure any injustice is being done — though again, it depends on the details. I wonder whether you’d have a different view of a slightly different deal, viz. one in which the defendant does not stipulate that the police had probable cause, but simply grants the State immunity from civil liability?


    • What I want to say to that overlaps so much with what I say in the second installment (and with other posts I have planned) that I’m going to defer saying very much until I post the second installment of this post, maybe a week from tomorrow. The quickest thing I could say is that I think you have an extremely over-charitable understanding of the workings of the criminal justice system, and an extremely uncharitable view of the predicament of criminal defendants in that system.

      But a quick comment on this:

      In principle, though, this problem ought to be handled by lawyers and cops doing their job and explaining what the hell is going on. In that respect, it doesn’t seem to be a problem with the bargain itself.

      The institution of plea bargaining is motivated by what its architects regard as the need for expeditiousness in criminal justice: the system is clogged with cases, so we have to push them through faster. That motivation is incompatible with anyone’s understanding his job in the way that you envision. Legally speaking, it’s not a cop’s job to explain the nature of plea bargaining to the suspect. The cop, after all, is legally empowered to deceive the suspect into confession to the elements of some crime. Even if we made it cops’ job to explain the nature of plea bargaining, suspects would have no reason to believe their explanations.

      If by “laywers” you mean prosecutors, it’s worth remembering that the prosecutor stands in an adversarial relationship to the suspect. So again, he has no obligation to offer explanations that would tend to diminish the asymmetric bargaining power he has over the suspect. The suspect’s ignorance is the prosecutor’s asset. It isn’t part of his job description to bring home the conflict between conscience and a false plea.

      The judge assumes that ignorance of the law is no excuse. So by the time you face a judge, she has no obligation to explain anything to you except in the most minimal way of reading the relevant formulations at you at top speed. She’s got a whole docket to get through.

      Who’s left? Court clerks and defense attorneys. But given the motivation behind the system, they will plead, with some justification, that they cannot possibly be expected to explain what they regard as trivial details. Your attorney’s job is to get you, the defendant, the best outcome. Most attorneys take it as self-evident that a reduced sentence in exchange for stipulation is a better outcome than undergoing the rigors and expense of a trial so as to avoid a false plea. If it’s anyone’s job to explain the nature of plea bargaining, it’s their job, but the excuse they have for not seeing things that way is systemic: the system systematically undervalues truth and moral desert. Legal fictions matter more than truth; clever bargains matter more than desert. Clerks and defendants aside, defense attorneys are the least powerful player in this game. There’s something implausible about dumping the burdens of the system on them while letting the system off the hook, when the burdens are there because the system put them there.


      • A quicker way of putting my point: the idea that the problem I’ve described should be handled by “people’s doing their jobs” involves so revisionary a conception of their jobs that it’s as much an indictment of the system as anything I’ve said. No cop or lawyer working within the system today would recognize your description of their job.

        I’m not denying that their job descriptions should be revised, by the way. I am, after all, putting a huge burden on the defendant to “do his job” by pleading not guilty when he’s not guilty. That’s a revisionary account of the defendant’s role (or maybe a revolutionary one, in the sense of a return to first principles that involves a U turn from where we currently are). But it isn’t one that lets the system off the hook. Part of the point of my proposal is to put the system on the hook. But more on that when I post installment 2.


      • You have far more experience and knowledge of the system than I do, so I’ll defer to you on how it actually works. But I can’t see my suggestion as especially revisionary or alien to the way that the people involved would reasonably see their roles. The law requires the stipulation to be knowing and voluntary; people who do not know what it is they’re signing cannot be acting knowingly and voluntarily; informing them of what they’re being asked to do would be straightforward and easy, while not informing them seems to cast doubt on whether they’ve actually done what the law requires. I mentioned the police because a few of the posts I read on message boards were from people who seemed to be suggesting that the cops gave them the forms to sign and then released them from jail, but I’d imagine that in the more typical case it would fall to the defense attorney to explain it to the defendant. Nothing you say about it here seems to tell against my suggestion; yes, the cop is entitled to deceive me into confession, but he already has to inform me of my rights when he arrests me, and already has to stop asking me questions if I ask for a lawyer, so it would hardly be an unusual departure from his normal job requirements to inform me adequately of what I’m signing before allowing me to sign it. So too, the demand for quick and efficient turnover is hardly relevant; defense attorneys don’t need to teach their clients a class on the law, they just need to explain what the stipulation means and what its effects will be, and that should not take very long (lawyers on the message boards I found do it well enough in a few sentences). So too, it hardly matters that others are in an adversarial relationship with the defendant and do not particularly care about truth; it’s not the truth of the plea or the fairness of the bargain that’s at issue, it’s that the stipulation is made voluntarily and in knowledge of what it means.

        But my point here is fairly limited: it’s that insofar as the problem with the system you’re describing is that the people who make the stipulation do not know what they’re doing, and so do not do it voluntarily, there is an easy fix for that, and it does not require anyone involved to act contrary to their normal roles or to do anything hard. It may be that most people involved in the system do not take the stipulation seriously and really do take the voluntary character of it as a pure legal fiction. If so, that’s a deeper problem; my proposal would solve it, but nobody will care about real knowledge and consent enough to adopt it. Insofar as the problem lies in all the major players in the system acting without any serious consideration for truth or justice, minor details like these won’t make a difference.

        I think your Shylock comparison is overblown in many respects, but one of them is that the problem in his case is not that his adversaries or the legal system do not care about justice, desert, or truth. Portia and Bassanio — and perhaps Shakespeare’s original audiences, too — believe that they’re very much doing the right thing not only in saving Antonio, but in defanging Shylock and bringing about his conversion. Portia is willing and able to manipulate the technicalities of the law in a perhaps disingenuous way, but in the service of what she regards as right and good — mercy, perhaps, over justice, as she puts it, but justice in a broader sense that covers what is right. The problem is with their perverse notions of what is right, not with their indifference to it. What you’re describing is in at least one way worse — though the disparity between what is done to Shylock and what is done to people who take a plea bargain in a traffic violation case makes the comparison a bit ridiculous to begin with, and “lesser version” doesn’t seem to cut it — insofar as indifference to truth and justice is worse than sincere error.

        To what extent, then, does the problem, as you see it, come down to the truth-indifferent adversarial character of the system rather than to this or that detail of the arrangements?


        • You say:

          But I can’t see my suggestion as especially revisionary or alien to the way that the people involved would reasonably see their roles. The law requires the stipulation to be knowing and voluntary; people who do not know what it is they’re signing cannot be acting knowingly and voluntarily; informing them of what they’re being asked to do would be straightforward and easy, while not informing them seems to cast doubt on whether they’ve actually done what the law requires.

          You’re conflating a normatively-laden account of the job descriptions of law enforcement officers with a descriptive account of how they actually function. You’re also conflating an intuitive understanding of “knowing and voluntary” with the narrowly legal conception of that phrase. On a descriptive account of how law enforcement officers actually function, and the legal conception of “knowing and voluntary,” your account of the job description of law enforcement officers is radically revisionary.

          The legal conception of “knowing and voluntary” is so thin and so counter-intuitive that it amounts to a travesty of both concepts. On the legal conception of voluntary, a prosecutor can bargain with a presumptively innocent suspect by threatening him with capital punishment if he goes to trial while offering a life sentence if he takes a plea. Faced with this offer, when the suspect takes the plea, he does so “voluntarily.” Yes, he does so because he fears that if found guilty, he will be executed, and he’d rather just escape with his life than take his chances with death. And yes, he’s in a prison cell, facing the might of the State. But as far as the law is concerned, it’s all still voluntary. The legal conception of “voluntariness” is not the ordinary concept of “voluntariness.” Lawyers inhabit a universe of their own.

          “Knowledge” on this conception really just consists in the ability to repeat a rote legal formulation and sign your name underneath it, more or less the way I was taught to recite the Qur’an in Arabic, or how school children are taught to recite the Pledge of Allegiance (or the Plejuvlegiance). When a law enforcement officer “informs you adequately” of what you are signing, all he is doing, and all he is expected to do given his actual job description, is to read a set of formulations to you, or at you, ask whether you understand, ask whether you are signing of your own free will, and then give you a pen. Suppose you claim not to understand, and expect to given an “adequate explanation” of what you’re to sign. There is no legal criterion of an “adequate explanation.” Since there isn’t, you won’t get one, and no law enforcement officer will feel the slightest obligation to give you one. The question is: do you want to sign or not? Explanation is not part of their job description (except in the mercenary sense of “explaining” something to draw you into a confession).

          Yes, the law requires that stipulation be knowing and voluntary. The whole point of my criticism is that it typically isn’t, at least in an intuitive sense of either of those terms. But it doesn’t follow from that, and isn’t true, that because “knowing and voluntary” is what the law requires, police officers’ giving “adequate explanations” in the intuitive sense is part of their actual job descriptions.

          And it’s not true that conveying the relevant knowledge is “straightforward and easy.” In the original post, I quoted at length from a Supreme Court case, Illinois vs. Gates, describing the concept of probable cause. The point of the passage is that the concept of probable cause is not straightforward and easy. But if the concept isn’t, stipulation to it in a given case is going to be even less so. The concept isn’t straightforward or easy; its application to cases is not easy; and its application to cases is made harder by the partial perspective of the suspect.

          Partial perspective of the suspect: For one, there is the duress of being stopped or arrested, which interferes with really knowing what’s going on. No one under that kind of pressure can really think straight, much less make a real determination whether the officer had probable cause during the stop.

          It’s worth remembering something I stressed in the post: officers themselves do not need probable cause to make a stop; the standard they’re required to satisfy is reasonable suspicion, not probable cause. Reasonable suspicion is a much easier standard to satisfy. The reason they don’t need probable cause is that it’s understood that doing so would be too difficult for them to satisfy. But if it’s too difficult for a trained officer to make a determination of probable cause, it’s obviously too difficult for an untrained non-officer. And if it’s too difficult for the officer to make a determination of probable cause, so that he typically doesn’t make one, it cannot make sense to expect the suspect to make one for the officer–i.e., to make a determination of probable cause that the officer didn’t himself make, because he wasn’t obliged to, and couldn’t, under the circumstances have pulled it off anyway.

          It’s as though someone were to say,

          Obviously, it’s too difficult to expect a cop to make a determination of probable cause. So that’s why we relax the standards for them. They don’t need probable cause to stop the suspect; it’s the suspect who has to stipulate as the probable cause–i.e., stipulate as to the probable cause that the cop didn’t have to have, and probably didn’t have.

          There is also the literal perspectival problem, which in some cases can be a perceptually perspectival one. The suspect is being asked to stipulate as to probable cause, but probable cause refers to officer’s judgment that, all things considered, from his perspective, there was probable cause for, say, an arrest. How could the suspect possibly have access to that?

          Suppose I am an officer driving behind you. I stop you and claim that you “failed to maintain lane.” You insist (and sincerely believe) that you did “maintain lane.” The plea bargain you reach is that the prosecutor will let you off as long as you “stipulate as to probable cause”: i.e., stipulate that the officer had probable cause to stop you for failure to maintain lane, but didn’t have evidence sufficient to prove guilt of the offense. Such a tempting offer! But now, ask yourself: absent a dash cam from my car, that is, the police car, how could you possibly know that I had probable cause to stop you for failing to maintain lane? You might be tempted into agreeing that I did, given the nature of the offer before you, but you’d almost certainly be lying if you did–and lying under oath, with the eager acquiescence of every legal officer in the room.

          To convince yourself that I, the officer, had probable cause to stop you, you somehow have to convince yourself that I saw you do something that sincerely convinced me that you were doing the very thing you sincerely claim you weren’t doing. Never mind that you don’t really know what “probable cause” amounts to. Never mind that I didn’t need it to stop you in the first place! The problem here is that you were driving your vehicle, but probable cause was established by the occupant of the vehicle behind yours–precisely where you weren’t. You have no access to that evidence at all. To stipulate as to probable cause, you have to take on faith that the officer whom you regard as wrong to have ticketed you was right to have stopped you–or rather, had a superabundance of evidence beyond what he needed to stop you, but somehow managed wrongly to ticket you “despite” that. Taking this on faith, or willing yourself into “believing” on faith, is not knowing it in any intelligible sense of the word.

          This is a particular case, but the features of this case are recurring and general. Some version of this problem is going to pop up in a huge variety of cases: the officer says he had reason to stop you; you are asked, as part of a plea, to stipulate as to probable cause; but your stipulation as to probable cause is in evidential tension with the defense you would invoke against the charge. Stipulation as to probable cause concedes that the officer had more evidence than he needed to stop you; meanwhile, you’re claiming that you’re not guilty. The most obvious way of denying one’s guilt is to contest the legitimacy of the evidence adduced in favor of it. Stipulation as to probable cause induces you to say that there is actually a hell of a lot of evidence of your guilt–but still, despite all that evidence, you’re not guilty of the original charge. One way of handling this is to distinguish between a stipulation and an admission, which is a neat solution to the conceptual problem, but not universally accepted. But the more obvious problem is that when you stipulate, you are allowing yourself to be used by the State to close the evidential space between the case against you and the case for your defense. Ex hypothesi, you are making the space between those two things seem narrower than they they really are.

          Obviously, if you’re stipulating to the arresting officer, he knows all of the above. So the idea that you can now ask him to help you with it is not just revisionary, but about as pie in the sky as anything can be. What you need at this point is not just some rote formulation about the “meaning” of probable cause, as written out on some half-literate, half-legible form, rehearsing the hackneyed formulations taught to rookies in the Police Academy (which is their idea of “voluntary” and “knowing,” and not just theirs, but fully passes legal muster). What you need to know is: how do I stipulate as to probable cause without compromising my defense, without conceding too much, and in a way that genuinely captures the evidence that the officer must have had?

          This is an artificial enough question as it is. But it’s quixotic to imagine asking a cop for help with it–i.e., asking for help from the guy who is trying his best to deceive you into confessing the elements of a whole string of crimes. (Worth noting that a cop’s legal advice has no authority in a court of law anyway. You cannot successfully plead in court that you were told X, Y, or Z by a cop. That’s hearsay, and the cop is not the relevant authority anyway.)

          There is a world of difference between what is written on a form, and what you really need to know to make a voluntary and knowing declaration. There is also a world of difference between the legal conception of a voluntary and knowing declaration, and anything approaching an intuitive understanding of the phrase. No police officer in the midst of an arrest or investigation regards it as his job to assist the suspect in understanding what probable cause is, or how it applies to the case at hand, so as to ensure that the suspect really knows what he needs to know to make a knowing and voluntary declaration (in the ordinary sense of “knowing” and “voluntary”). Maybe they should, but they don’t. And it certainly doesn’t follow that they do because they should. Informing you what your rights are (in some minimal sense) and explaining what they are, are two completely different things. It’s part of a cop’s job description to read you your Miranda rights. It is not part of his job description to explain the content of your Miranda rights, much less to appreciate the subtle ways in which you didn’t quite grasp this or that that subtlety that it might help you to know–so maybe he should stop the interrogation for a moment, and re-explain things to help you do a better job at defending yourself than you currently are.

          It’s also not true that questioning has to end once you ask for an attorney. That depends on the kind of stop you’re in. You certainly can’t ask for an attorney during a vehicle stop. Nor can you ask for an attorney during a Terry stop. Of course, asking for an attorney doesn’t mean that one will materialize any time soon. But talk of attorneys takes us from one topic to the next.

          As for defense attorneys,

          So too, the demand for quick and efficient turnover is hardly relevant; defense attorneys don’t need to teach their clients a class on the law, they just need to explain what the stipulation means and what its effects will be, and that should not take very long (lawyers on the message boards I found do it well enough in a few sentences). So too, it hardly matters that others are in an adversarial relationship with the defendant and do not particularly care about truth; it’s not the truth of the plea or the fairness of the bargain that’s at issue, it’s that the stipulation is made voluntarily and in knowledge of what it means.

          Lawyers on message boards are very careful to tell you that they’re not giving actual legal advice. What they’re really doing, for the most part, is advertising their services so that you will pay them to take their actual legal advice. So the simpleminded advice that is given on message boards can’t be taken at face value, or as conclusive.

          As I see it, the issue here is very simple: you can’t stipulate as to probable cause if you don’t know what “probable cause” is, or how it applies to cases, or how it applies to your case (including how it could apply if the officer never bothered to satisfy the probable cause standard). Most people making the stipulation know none of the three. But knowing those three things takes a lot more than a couple of sentences. It’s not the kind of thing you can pick up by reading a message board, or having a half hour consultation with an attorney.

          I am less confident pronouncing on the ways of defense attorneys than I am cops, but I would say this: the more you want to know from an attorney, the more you have to pay. Few people have the resources to get a full answer for the amount it costs. You could say that payment is not one of the internal goods of lawyering, but lawyers are not big fans of the distinction between internal and external goods. So they see healthy remuneration as part of what they do. It would be revisionary to imagine a defense attorney who takes a pay cut to explain what you need to know in order to make a knowing and voluntary declaration. As I said before, most attorneys take it for granted that what you want is to minimize the loss of some tangible external good like money or monetizable time. That you have to bullshit your way through a stipulation is, as far as they’re concerned, neither here nor there. Likewise the fact that you don’t understand the stipulation, and that in some (to them) recondite sense of “know,” you lack knowledge of what you’re declaring.

          Client: What the fuck does this all mean?
          Lawyer: Oh, it just means that they had probable cause to stop you. Don’t worry. Once you say that, the prosecutor has agreed to the deal. We’re done here.
          Client: Right, but what exactly am I agreeing to?
          Lawyer: Well, that they had probable cause to stop you.
          Client: What does that even mean?
          Lawyer: Who cares what it means? Do you want to sue the cops or not?
          Client: No.
          Lawyer: Then say it. It just shows them you don’t want to sue them, and then they’ll let you off. No points, no fine, nothing. You got that?
          Client: Well, yeah.
          Lawyer: OK, then. Say it.
          Client: I stipulate that the Brownsville Police had probable cause to stop me on Route I-870 North at 3 pm on March 25, 2019, mile marker 27.
          Judge: Case dismissed. Next?

          Client understands that by saying what he just said he is waiving his right to a suit against the Brownsville PD. Understanding that is sufficient for making a “knowing” declaration. Beyond that, no one is literally putting a gun to Client’s head right there in the court room at the exact moment of the declaration. Therefore, the declaration is voluntary. Knowledge of the content of the declaration is, as far as the court is concerned, utterly beside the point. And the fact that an innocent person, faced with the nearly impossible task of fighting the State at its own rigged game, might be acquiescing in the prosecution’s motion for lack of resources to fight, is also beside the point. On current conceptions of everyone’s job, it is no one’s job to explain the nature of the stipulation to him in a way that approximates really knowing what he’s talking about. Legally speaking, knowing that p is compatible with blank ignorance about p. The defense attorney’s job comes closest to that of giving the client the requisite knowledge, but is still pretty distant from that task.

          As for your claim that my comparison to Shylock is overblown: first of all, I did say that what happens in court rooms is a “lesser form” of what happened to Shylock. I don’t see how any of what you’re saying has any relevance at all to that. The issue is what happens to Shylock, or what’s demanded of him, not the motivations behind Portia’s or Bassanio’s action. Whatever their motivations, Shylock is obliged to act against his conscience for lack of the capacity to fight the State; so is the innocent defendant who accepts a false plea, even the mildest one. Though the post begins by discussing moving violations, I wasn’t restricting my claims to moving violations. The duty that I defend at the end includes moving violations, but is supposed to range beyond them. How far it actually goes is not clear. But that it wasn’t just about moving violations ought to have been clear, too.

          In any case, moving violations are, in the case of undocumented aliens, grounds for deportation. This means that an undocumented alien who has lived in this country for the last 30 or 40 years can be stopped on a false charge of “failing to keep to the right of traffic” or “driving too slowly,” or even of having a broken brake light, be handed over to the immigration authorities, and be deported to his “country of origin” without any hope of return to the United States–separated from work, from family, from home, and from everything he’s earned. If the charge against him involves moral turpitude, he may wish to plea bargain, just to avoid the taint of the charge. Once he does so, he might “stipulate as to probable cause” when there was no evidence against him at all, so as to plead guilty to a moving violation that involved less turpitude than the one he’s charged with (e.g., careless driving for reckless endangerment, or careless driving for DUI, etc.). In doing so, he avoids the more serious charge, but violates his conscience and sets himself up to be deported. And if you have trouble imagining that a cop could falsely charge you with a moving violation, you don’t know cops. Once our “illegal” walks out the courtroom doors, ICE will be waiting for him, maybe a block away. They will sweep him into their system, throw him into a detention camp, and eject him into what they regard his “country of origin.”

          The similarities with Shylock’s case are obvious enough to make any dissimilarities involving Portia and Bassanio irrelevant by comparison. The Merchant of Venice is a story of how a ridiculous commercial dispute between an alien and a citizen can devolve into a deportation proceeding where one party is obliged to debase himself for the gratification of the crowd. Substitute “moving violation” for “commercial dispute,” and you get the same result out of our system.

          So too, it hardly matters that others are in an adversarial relationship with the defendant and do not particularly care about truth; it’s not the truth of the plea or the fairness of the bargain that’s at issue, it’s that the stipulation is made voluntarily and in knowledge of what it means.

          I don’t really see why. I spent a fair bit of time talking about stipulation as to probable cause, but the post wasn’t just about that (and in any case, isn’t done). The duty I describe at the end is not a duty to avoid stipulating as to probable cause, but a duty to refrain from plea bargaining. Falsely or unknowingly/involuntarily stipulating as to probable cause is just one aspect of a bigger problem. The falsity of a false plea, the unfairness of the bargain, and the involuntary character of the stipulation are all at issue, because all three are essential features of plea bargaining, and I would contest them all. But the (knowing) falsity of the plea is the worst of the trio, far worse than the involuntary character of the stipulation. In this context, involuntary stipulation re probable cause is merely a kind of perverse icing on a shitty cake. We happened to have lingered here on the icing, which is only natural. But my deepest objection is to the cake itself.


          • ‘Knowing’ doesn’t mean ‘knowing,’ ‘voluntary’ doesn’t mean ‘voluntary,’ and ‘probable cause’ is apparently so special a notion that it can’t be articulated clearly and intelligibly in a reasonably short amount of time, yet it does not (apparently) entail guilt. I wonder, then, whether I need to regard taking the plea bargain as a violation of conscience at all. Why not regard myself simply as signing a form in order to avoid certain penalties and granting the state immunity from liability? Certainly if what I were doing were nothing more than agreeing to grant immunity, there would seem to be no violation of conscience involved (not necessarily, anyway); I wouldn’t be claiming anything, sincerely or not, about the facts, I’d just be releasing the state (or the police, more narrowly) from liability. In fact, I’m stipulating that they had probable cause, but why should I, in conscience, regard myself as conceding anything about whether they had probable cause? If it’s plainly acknowledged by the law that I don’t even need to do any of this in a genuinely knowing or voluntary way, and that these are just legal fictions that conveniently share names with terms from ordinary language, why should I regard myself as doing anything other than indulging in some technicalities?

            I can’t imagine myself being worried about violation of conscience in this sort of scenario, despite taking violation of conscience seriously. The problems with the system as you describe it seem to lie elsewhere. In particular, it strikes me as problematic that the stipulation isn’t genuinely knowing and voluntary. I’m not sure one needs to understand the details of the legal technicalities in order to count as knowingly and voluntarily stipulating to probable cause — it seems sufficient to me to understand not simply that I’m releasing the police from liability, but that I’m agreeing that the cops who arrested me had sufficient reason to believe that I was guilty of a crime, even if I wasn’t, but perhaps this seems sufficient to me only because I don’t understand the legal details of probable cause. Regardless of how far the technicalities take us from an ordinary conception of ‘sufficient reason to believe that I was guilty of a crime,’ it also seems problematic that the court demands stipulation as to probable cause when it isn’t clear that there was any, particularly if what’s really wanted here is just immunity from liability. These problems don’t seem hard to fix; that is, it doesn’t seem like it’s asking a lot to require that the stipulation be genuinely knowing and voluntary or that the stipulation simply take the form of agreeing to release the police from liability if that’s the main point. I haven’t meant to suggest that the parties involved already more or less do this, so that my suggestion isn’t radically revisionary because it already fits with how they understand themselves; I mean simply that it wouldn’t be a drastic shift or especially difficult. I’m not conflating a normative account of how things should be with an account of how they actually function; I’m claiming that a solution to these particular problems doesn’t require a dramatic revision to what the law currently requires, so far as I understand it.

            As I said, I’m not objecting to the main point of your post, viz., the duty to refrain from plea bargaining as you’ve articulated it. Nor am I trying to defend the system in general. I’m expressing skepticism about some of the particular claims you made, and I’m trying to identify exactly where the more serious problems are and how serious they are. I remain unconvinced that in the specific sorts of cases you initially focused on — traffic violations — there is any deep problem that could not be resolved without radical revisions to the legal system. I also still think that the comparison to Shylock’s case is ridiculous — yes, there are some broad structural similarities, but aside from the dissimilarities between being required to stipulate as to probable cause in a traffic violation and being required to publicly repudiate your entire religious/ethnic identity, there is the fact that Shylock was trying to kill someone who wasn’t able to repay his loans on time, while the relevant parties in your case are people who sincerely do not believe that they committed a traffic violation. The more important point about the (lack of) comparison, though, was the question about what the fundamental problems here are: it seems to me that on your account (the main lines of which I do not find objectionable), the troubles stem from a legal system that is structurally indifferent to truth, whereas in Merchant the trouble with what is done to Shylock has nothing to do with that — after all, Antonio’s salvation does not depend on Shylock’s admitting anything or doing anything at all, let alone debasing himself for the gratification of the crowd, but simply on the impossibility of his taking a pound of flesh without taking more and Shylock’s quite sensible refusal to make himself guilty of murder. Shylock fits your model only if we ignore most of the character and the play, and in any case what’s important here is not Shakespearean interpretation — so even if you disagree with me about Shylock, what I take to be the more important question is whether the deeper problems you’re addressing are the sort of thing that can be satisfactorily resolved without a really radical revision to the legal system — far more radical than revising definitions and procedures to better approximate genuinely voluntary and knowing plea bargains. (In case it isn’t obvious, one reason why I ask is that the issue relates to our recent discussion of adversarial legal systems vis-a-vis Aristotle, which got me thinking more carefully about exactly what it is for a legal system to be adversarial and what might be wrong with that).


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