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…
- have reasonable doubt about the truth of a criminal charge against you (including traffic offenses),**
- have the resources to dispute the charge,
- don’t stand to face catastrophic consequences if you lose your case, and
- 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.