November 6, 2008

the Unraveling of American Justice: Plea bargaining

American justice nowadays is a sham. It is easy to see how things devolved to get where they are: there is a constant flood of accused people that need to be processed through a system that is a maze built around byzantine laws. To deal with the deluge, the system is radically dependent on plea bargaining to lop out of the process the most-expensive step, people's right to trial.

Because bargained pleas are known -- by those in the know, and not me, until now -- to be such fantastic deals compared to the price that'll be paid if a case goes to trial and one is convicted, even fully innocent people take a plea bargain [aka, cop a plea] instead of undergoing the risks of trial and a decision made by an unpredictable jury swayed by emotion.

In his 2002 article for Slate, "Why Innocent People Confess," Michael Kingsley tells the story of the so-called Central Park Jogger's supposed rapists of, now, 18 years ago. Five teenaged boys confessed to raping and nearly killing a park jogger. Turns out, years after their conviction, the boys were exonerated by DNA evidence. Why in the world did the boys avoid a trial for a crime they had nothing to do with? Because the evidence at the time of trial was overwhelming in the pre-DNA days of 1988 when the crime occured, so, in order to avoid risk of life in prison [or death penalties?], the boys implicated each other and copped a plea.

Kingsley explains the plea bargaining situation in America thus [Emphases, mine]:

... for every one criminal conviction that comes after a trial, 19 other cases are settled by plea bargain. And when, as part of a plea bargain, innocent people confess to a crime they did not commit, that isn't a breakdown of the system. It is the system working exactly as it is supposed to. If you're the suspect, sometimes this means agreeing with the prosecutor that you will confess to jaywalking when you're really guilty of armed robbery. Sometimes, though, it means confessing to armed robbery when you're not guilty of anything at all.

In 1978 Professor John Langbein, now of Yale Law School, wrote a dazzling and soon-famous article in the Public Interest called "Torture and Plea Bargaining." Langbein compared the modern American system of plea bargaining to the system of extracting confessions by torture in medieval Europe. In both cases, the controversial practice arose not because standards of justice were too low, but because they were too high. In medieval Europe, a conviction for murder required either two eyewitnesses or a confession by the perpetrator. This made it almost impossible to punish the crime of murder, which was an intolerable situation. So, torture developed as a way to extract the necessary confessions.

Plea bargaining evolved the same way, Langbein explained. As our official system of justice became larded with more and more protections for the accused, actually going through the process of catching, prosecuting, and convicting a criminal the official way became impossibly burdensome. So, the government offered the accused a deal: You get a lighter sentence if you save us the trouble of a trial. Or, to put it in a more sinister way: You get a heavier sentence if you insist on asserting your constitutional rights to a trial, to confront your accusers, to privacy from searches without probable cause, to avoid incriminating yourself, etc.
But the situation is really far worse than this -- that is, it is even worse than citizens' deprivation of their rights as defendants! Impartial judges and defendants are effectively left out of the bargaining process that goes on between the prosecutor and defense attorneys, who rely on incomplete -- to the level of sketchy or wrong -- grasps of essential facts. And, of course, in this rump justice system that we have, "the people" are not being protected by laws that are just. Thus, American "justice" is injustice, for all concerned or unconcerned.

In a Cato think tank paper, published in Regulation, titled "The Case Against Plea Bargaining," Timothy Lynch argues the rather obvious, that plea bargaining "... should be abolished since the practice is unconstitutional." First Lynch explains our terrible situation and then he relates the circumstances in Bordenkircher v. Hayes, a watershed 1978 U. S. Supreme Court ruling, decided 5 - 4, that determined that plea bargaining was OK.

The story that led to the ruling is a sad one: Paul Lewis Hayes was indicted for passing a forged check in the tiny amount of $88.30. He was offered a sentence of five years by the prosecutor, and threatened with a new charge of life imprisonment, under Kentucky's "Habitual Criminal Act," if he didn't take the deal. Hayes insisted on his right to trial, was convicted, and given a life sentence. On appeal, Hayes's attorney argued that the prosecutor violated the Constitution by threatening to punish him for simply invoking his right to trial. The government side admitted that that was exactly what happened, but was not improper. The Court decided against Hayes with this rationale: There is "no element of punishment or retaliaion so long as the accused is free to accept or reject the prosecution's offer."

Quoting the Court in another context, Lynch writes, "It always is for the interest of a party under duress to choose the lesser of two evils. But the fact that a choice was made according to interest does not exclude duress. It is the charactistic of duress properly so called."

Lynch also tells us, "the Supreme Court has repeatedly invalidated [government actions] that were purposely designed to coerce individuals and organizations into surrendering their constitutional rights" and he offers many examples of this.

Also, Lynch shows that plea bargaining rests on a constitutional fiction. Here a quote of Chief Justice Young of the Federal District Court of Massachusetts, from the article [Emphases, mine]:
Evidence of sentencing disparity visited on those who exercise their Sixth Amendment right to trial by jury is today stark, brutal, and incontrovertible. True, there was always a sentencing discount for those who plead guilty and turn state’s evidence. In this District that discount used to range from 33% to 45%. Today, under the Sentencing Guidelines regime with its vast shift of power to the executive, that disparity has widened to an incredible 500%.
Not surprisingly, such disparity imposes an extraordinary burden on the free exercise of the right to an adjudication of guilt by one’s peers. Criminal trial rates in the United States and in this District are plummeting due to the simple fact that we punish people–punish them severely– simply for going to trial. It is the sheerest sophistry to pretend otherwise. This is nothing new, of course. Sugarcoat it as we may with terms like “acceptance of responsibility” for those who cooperate, we have always punished those who demand that the government carry its constitutionally-mandated burden of persuasion beyond a reasonable doubt before an American jury.
Michael O'Hear, a Marquette University professor, in a paper called "Plea Bargaining and Procedural Justice," is sympathetic to situations that are similar to mine. He writes:
Many defendants welcome the impersonal, rapid-fire nature of the routine case processing mode, preferring just to "get in over with" in cases that are unlikely to result in substantial sentences of incarceration. From a procedural justice standpoint, though, the concern is that not all defendants are content letting the police report do the talking for them.

Even if the report is entirely accurate, the defendant may have a "story" to tell that would contextualize the information collected by the police. And even if that context is irrelevant to the lawyers' assessment of the case, it may nonetheless be subjectively important to the defendant to tell his or her side of the story. Yet, in the routine case processing mode, the defendant may have no opportunity to do so until after the prosecutor has decided what the plea offer will be (if at all). Given the realities of criminal defense -- notoriously overburdened public defenders and private defense lawyers whose practice economics also demand speedy case processing -- the defendant's lawyer will often spend little time with the defendant before an agreement is reached with the prosecutor. At that point, the pressure will be on the defendant simply to consent to the deal without troubling anyone with new information. In such a case, the defendant would be well justified in concluding that he or she has no real voice in the process.
" real voice in the process." I'll say!


Nagarjuna said...

If I were in your situation, I'm sure I'd be just as frustrated and dismayed by the basic unfairness and injustice of the so-called "justice" system and by its over-reliance on plea bargaining as you are. But what I wonder is how, especially in an age of shrinking budgets, things could be improved.

How can the state afford countless more prosecutors and public defenders, judges, bailiffs, court reporters, juries, courtrooms, and other resources necessary to accommodate vastly more defendants taking their cases to trial?

I agree with you that everyone charged with a crime, especially a felony, should be able to exercise his Constitutional right to a trial by jury or judge without fear of retribution if he loses. He should also be able to receive representation by an attorney he trusts and with whom he has rapport. And even if he's committed the acts in question, context and motive should be taken into greater account when deliberating a verdict or imposing a sentence.

But how would you suggest that all of this be done?

Tom said...


For starters, the "justice" system has to lead to justice -- no matter if the cost getting there is rather high. Otherwise, we will be continuing a system where innocent people intentionally plead guilty because that is their best risk and sentencing is a game of vast inequities rather than an effort to do what is most right.

What we cannot allow to continue is the circumstance where invoking one's constitutional right exacts a huge penalty. There needs to be NO penalty whatsoever. I mean, it is outrageous what's going on now.

One short-term "fix," as we work our way out of what happens now, might be to cap sentencing for a tried conviction to twice what is offered in a plea bargain. We also need semi-determinant sentencing such that a person charged has a grasp of what his penalty will be, were he to be tried and convicted, well before the plea bargaining dance begins. Also, plea bargaining needs to include the defendant and include a semi-complete revealing of evidence so that both the defendant and the public are getting better justice.

The above are some of my thoughts. But, truly, I think we should skuttle plea bargaining altogether and return fully to a justice system that is obligated to prove defendants' guilt and exact justice. As things are now, it is all a lawyers' gameshow unrelated to doing the right thing.

They call him James Ure said...

Great post. I kept thinking while reading this post of the unfair and lopsided convictions of minorities in this country.

I agree that we must fund our justice system to whatever needed to have the fairest system possible. I also think that we need to stop requiring some judges run for office.

It flirts too much with politics and buying a judgeship. Better in my mind to rely upon those experienced to appoint those whom they deem (upon their experience) as qualified. This said, there are still plenty of judges who are corrupt and unqualified.

I think that too often in our society we just assume that all judges are perfect and always out to do the right thing. I wish it were so.