Pleas of Guilty and the Loss of Constitutional Rights: The Current Price of Pleading Guilty

This Article proposes the same basic rule as Westen’s to explain the Supreme Court’s decisions, but for very different reasons which require several modifications of the Westen rule. I argue that all the guilty-plea cases, properly viewed, are consistent with, and therefore can be read as evidence of, a theory more easily applied than articulated by the Court: that some constitutional rights are largely premised on notions of litigation avoidance, that their “avoidance” rationales must be respected, and that these rights therefore prevent governments from establishing procedural rules that force criminal defendants to go to trial-to choose more rather than less expensive means-to claim them. The rule of thumb is that defendants may plead guilty and yet preserve constitutional claims which, if sustained, would bar any litigation of the charges against them. Forcing defendants to go to trial to assert such claims negates their value and is intolerable. Hence, defendants wishing to raise double jeopardy and closely related claims, some speedy trial claims, and arguably certain attacks on the constitutionality of substantive criminal statutes that proscribe conduct beyond the power of the state to punish legitimately, cannot be forced to incur the costs of trial to assert that the Constitution bars the state from proceeding at all with its charges. Rather, defendants may plead guilty and then assert these claims. Other claims-those not substantially concerned with avoiding litigation and its attendant costs-may be barred following a guilty plea.