It has been reported in multiple news sources and case law that roughly 97 percent of all federal criminal defendants plead guilty. The overwhelming majority of these pleas are the product of an agreement with the U.S. Attorney’s Office. Like it or not, this reality makes guilty pleas, and plea bargaining, an integral component of the federal criminal justice system.


Rule 11 of the Federal Rules of Criminal Procedure governs the acceptance of guilty pleas by the courts. The Rule was dramatically amended in 1975 in response to the Supreme Court’s 1969 landmark decision in Boykin v. Alabama that imposed requirements on both state and federal courts to ensure that guilty pleas are intelligently and voluntarily made. Those basic requirements are: that before a guilty plea can be intelligently and voluntarily entered, the sentencing judge must conduct an on-the-record inquiry informing the defendant that their guilty plea waives three fundamental constitutional rights—right to a trial by jury, right to confront one’s accuser, and the privilege against self-incrimination.


Guilty Pleas Must be Intelligently and Voluntarily Made


The recent guilty plea by President Trump’s former personal attorney, Michael Cohen, has inserted guilty pleas and plea agreements into the public debate. A Rule 11 primer is needed to illustrate both the seriousness and complexity the federal courts face when accepting a guilty plea. The following are strict Rule 11 requirements federal judges must adhere to when accepting guilty pleas, especially those conditioned on agreements with the Government:


  • Rule 11(b)(1) (B-F) requires the court to convey to the defendant that by pleading guilty they waive the following rights: right to a jury trial; right against self-incrimination; the right to maintain previously entered not guilty plea; the right to testify at a trial, the right to compel the appearance of witnesses; and the right to have the Government prove guilt beyond a reasonable doubt a trial.
  • Rule 11(b)(1)(G)requires the court not only to inform the defendant of the exact nature of each offense to which they are pleading but to ensure that they understand the charges.
  • Rule 11(b)(1)(H) requires the court to advise the defendant of the maximum possible penalty, including imprisonment, fine, and term of supervised release.
  • Rule 11(b)(1)(I) requires the court to inform the defendant of any mandatory minimum sentence that can be imposed.
  • Rule 11(b)(1)(J) requires court to advise the defendant of any applicable asset and/or property forfeiture,
  • Rule 11(b) (1) (K) requires court to inform the defendant of court’s authority to order restitution.
  • Rule 11(b)(1)(L) requires court to inform the defendant of court’s obligation to impose a special assessment.
  • Rule 11(b)(1)(M) requires the court to advise the defendant of its obligation to calculate the applicable sentencing-guideline range and to consider that range, possible departures under the Sentencing Guidelines, and other sentencing factors.
  • Rule 11(b)(1)(N) requires the court to advise the defendant that the term of any plea-agreement waives the right to appeal or to collaterally attack the sentence.
  • Rule 11(b)(1)(O) requires the court to inform the defendant that if convicted, a defendant who is not a U.S. citizen may be removed from United States, denied citizenship, and denied admission into the country in the future.
  • Rule 11(b)(2) requires that before the plea acceptance process can begin, the court must determine in open through direct communication with the defendant that the guilty plea is voluntary and not the result from force, threats, or promises other than those made through a plea agreement.
  • Rule 11(b)(3) requires that the court “determine that there is a factual basis for the plea” before “entering a judgment” on the plea.


Collateral Consequences of Federal Guilty Plea


Collateral consequences of a federal guilty includes but is not limited to loss of the right to vote, loss of right to possess firearms, sex offender registration (if conviction involves sex offense), civil commitment, loss of professional career, and a host of other rights and privileges.


This is why courts have uniformly recognized that a “guilty plea is no mere formality, but a ‘grave and solemn act.’”


The Second Circuit Court of Appeals on August 20, 2018 reinforced this recognition by remanding a guilty plea conviction in United States v. Lloyd. In Lloyd, the appeals court instructed federal district courts “in the strongest possible terms to take steps—by using a checklist, script, or other tool for conducting change-of hearings, and reviewing its current practices—to ensure its regular and rigorous compliance with Rule 11 and to avoid casting unnecessary doubt on the voluntary and knowing nature of the guilty pleas that it accepts.”


Lawyers Also Have Responsibility to Insure Rule 11 is Followed


Pointing out that failures to comply with Rule 11 is not always the fault of the sentencing judge, the Lloyd court stressed to “prosecutors and defense attorneys” that they “also have an obligation to make sure the Rule is followed.” The court added that prosecutors have a special obligation to “’alert the judge to any provisions that may have been missed,” both to ‘protect the defendant’s rights in the interest of justice, and to protect the record and avoid time-consuming appeals by defendants who subsequently suffer ‘buyer’s remorse’ and wish they had not pled guilty.”


Subsection C of Rule 11 spells out the procedure the court must follow when accepting a guilty plea that is the result of a plea bargain. Compliance with this subsection is as critical as compliance with Subsection B.


Nearly 50 years ago the U.S. Supreme Court recognized that guilty pleas, especially those arrived at through the plea bargaining process, are essential to the administration of justice.


We disagree.


At best, plea bargained guilty pleas are necessary to the orderly and timely administration of justice—an administration fraught with errors, mistakes, and misconduct. However, criminal courts often have nothing to do with justice.  In many cases, criminal courts are centers of dispute resolution, in which tough decisions about risk tolerance often rule the day.


In a November 20, 2014 article New York Review of Books tilted “Why Innocent People Plead Guilty,” U.S. District Judge Jed S. Rakoff pointed out that 2 to 8 percent of the defendants who plead guilty are innocent. That’s a disturbing prospect since 90 percent of all the nation’s 2.3 million inmates pled guilty. Judge Rakoff said this is a “haunting amount of injustice.”


This “haunting amount of injustice” demands that criminal defense attorneys step up and alert federal judges when the court has not fully complied with Rule 11. The Rule itself may not protect an innocent defendant from pleading guilty, but strict compliance with the Rule may possibly prevent an innocent individual from entering a plea without fully understanding its consequences.