On June 26, former national security adviser John Bolton appeared before a federal judge in Greenbelt, Maryland, and pleaded guilty to one count of illegally retaining classified information. He had been indicted on 18 counts. Instead of a trial, his case ended the way most federal criminal cases end, with a negotiated plea.
"I'm sorry for it," Bolton told the judge. His deal is a useful window into a system that decides far more cases than juries do.
Most cases end with a plea
The numbers are lopsided. The federal judiciary says that "more than 90 percent of defendants plead guilty rather than go to trial." A Pew Research Center analysis of fiscal 2018 data found that 90 percent of nearly 80,000 federal defendants pleaded guilty, 8 percent had their cases dismissed and just 2 percent went to trial. Fewer than 1 percent were acquitted. In fiscal 1998, by comparison, 7 percent went to trial.
State courts look similar where data exists. Pew, citing the National Center for State Courts, reported that jury trials made up fewer than 3 percent of criminal dispositions in 22 jurisdictions in 2017.
The Supreme Court has built rules around that reality. In Missouri v. Frye in 2012, Justice Anthony Kennedy's majority opinion noted that the great majority of convictions come from plea bargains, and the court held that defense lawyers must tell clients about formal plea offers from prosecutors.
How a deal gets made
A plea bargain is a negotiation between the prosecutor and the defense. Under Rule 11 of the Federal Rules of Criminal Procedure, the judge may not take part in those talks. Deals usually take one of three forms. The government can agree to drop or not bring other charges. It can recommend a sentence that the judge is free to ignore. Or both sides can agree to a specific sentence or range, which binds the judge once the judge accepts the deal.
The difference matters. If a judge rejects a deal that drops charges or fixes a sentence, the defendant must be given a chance to withdraw the plea. If the deal only includes a recommendation and the judge goes higher, the defendant has no right to back out.
Bolton's agreement shows how those terms work in practice. It recommends capping any prison term at five years on a count that carries up to 10. He agreed to a $2.25 million fine, to forfeit his federal retirement pay and to perform up to 100 hours of community service. The agreement lets him withdraw his plea if the judge imposes a longer prison term or a larger fine. Sentencing is set for October 28 before U.S. District Judge Theodore Chuang.
What the judge must ask
A guilty plea is not accepted on a handshake. Rule 11 requires the judge to address the defendant personally in open court and make sure the defendant understands the rights being given up, including the right to a jury trial and to a lawyer. The judge must also explain the charges, the maximum penalties and any mandatory minimum. A defendant who is not a citizen must be told that a conviction could lead to removal from the country.
The judge must find that the plea is voluntary and did not result from force, threats or promises outside the agreement, and that there is a factual basis for it. In Bolton's case, a prosecutor read a summary of the offense, and Bolton agreed it was accurate.
His lawyer, Abbe Lowell, said Bolton "took responsibility for a mistake he made." U.S. Attorney Kelly O. Hayes said Bolton "put our national security at grave risk in violation of the law."
Why so few trials
A plea offers certainty to both sides. The defendant can limit the charges and the possible sentence, and prosecutors avoid the time and risk of a trial. The odds at trial are also steep. Of the 1,879 federal defendants who went to trial in Pew's data, 320 were acquitted, which means most were convicted.
Trials still happen, as in the Keefe D murder case over the killing of Tupac Shakur. For the steps that come before any plea, see our explainers on bail hearings and grand juries. Plea bargaining is the kind of issue Daniel Rosenberg, Michael Dye and Lloyd Golburgh take apart on the show.
This article is general information about how the legal system works and is not legal advice.
Two Taps News stories summarize reporting and the analysis discussed on Two Taps and Friends. They are not legal advice. Read our standards.
