Tag: plea bargaining

Federal Judge Says Thousands of Innocent Americans Behind Bars

Judge Jed Rakoff delivers a lecture.Federal Judge Jed Rakoff:

“The criminal justice system is nothing like you see on TV — it has become a system of plea bargaining,” Rakoff said.

Today, only 2 percent of cases in the federal system go to trial, and 4 percent of cases in the state system go before a jury. As a result, accepting a deal from prosecutors — despite one’s guilt or innocence — has become a common choice for individuals accused of a crime.

“Plea bargains have led many innocent people to take a deal,” Rakoff said. “People accused of crimes are often offered five years by prosecutors or face 20 to 30 years if they go to trial. … The prosecutor has the information, he has all the chips … and the defense lawyer has very, very little to work with. So it’s a system of prosecutor power and prosecutor discretion. I saw it in real life [as a criminal defense attorney], and I also know it in my work as a judge today” …

Until extraordinary action is taken, Rakoff said little will change.

“We have hundreds, or thousands, or even tens of thousands of innocent people who are in prison, right now, for crimes they never committed because they were coerced into pleading guilty. There’s got to be a way to limit this.”

For related Cato work, go here.

George Will: We Need More Justice in Our ‘Justice System’

George Will’s latest column is a scathing attack on explosive growth in the federal criminal code, mandatory minimum sentencing, and plea bargaining. Here is an excerpt:

The House Judiciary Committee has created an Over-Criminalization Task Force. Its members should read “Three Felonies a Day: How the Feds Target the Innocent,” by Harvey Silverglate, a libertarian lawyer whose book argues that prosecutors could indict most of us for three felonies a day. And the task force should read the short essay “Ham Sandwich Nation: Due Process When Everything Is a Crime” by Glenn Harlan Reynolds, a professor of law at the University of Tennessee. Given the axiom that a competent prosecutor can persuade a grand jury to indict a ham sandwich, and given the reality of prosecutorial abuse — particularly, compelling plea bargains by overcharging with “kitchen sink” indictments — Reynolds believes “the decision to charge a person criminally should itself undergo some degree of due process scrutiny.”

He also suggests banning plea bargains: “An understanding that every criminal charge filed would have to be either backed up in open court or ignominiously dropped would significantly reduce the incentive to overcharge. . . . Our criminal justice system, as presently practiced, is basically a plea-bargain system with actual trials of guilt or innocence a bit of showy froth floating on top.”

U.S. prosecutors win more than 90 percent of their cases, 97 percent of those without complete trials. British and Canadian prosecutors win significantly less, and for many offenses, the sentences in those nations are less severe.

Making mandatory minimums less severe would lessen the power of prosecutors to pressure defendants by overcharging them in order to expose them to draconian penalties. The Leahy-Paul measure is a way to begin reforming a criminal justice system in which justice is a diminishing component.

Good stuff. For related Cato scholarship, go here, here, and here.

Plea Bargaining in the Supreme Court

The Supreme Court issued two rulings today related to plea bargaining.  What if a defense attorney fails to pass along a prosecutor’s offer to his client?  And what if a defense attorney gives a client really bad advice so an offer is rejected and, after a trial, the client gets a lengthy prison sentence?  The Supreme Court grappled with what should be the appropriate remedy, if any, in such circumstances.

Lurking in the background of these cases is the practice of plea bargaining itself.   Most Americans mistakenly think that we have a system of jury trials because they tend to hear about such cases on the news.   Well, yes, some people have jury trials and some people win the lottery–most do not.  According to the figures cited by the Court, “ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.”  Of the nine justices on the Court, seven did not perceive any problem with this situation.

Justices Scalia and Thomas couldn’t ignore the elephant in the room.   Unlike the majority, they said plea bargaining is a “necessary evil” and that it has been “a somewhat embarrassing adjunct to our criminal justice system.”  Here’s an excerpt from the Scalia dissent  in Lafler v. Cooper (joined by Thomas):

In the United States, we have plea bargaining a-plenty, but until today it has been regarded as a necessary evil. It presents grave risks of prosecutorial overcharging that effectively compels an innocent defendant to avoid massive risk by pleading guilty to a lesser offense; and for guilty defendants it often—perhaps usually—results in a sentence well below what the law prescribes for the actual crime. But even so, we accept plea bargaining because many believe that without it our long and expensive process of criminal trial could not sustain the burden imposed on it, and our system of criminal justice would grind to a halt.

Well, that is the standard explanation offered, but as I noted in this article for Reason magazine, please observe that the main justification for the way in which the overwhelming number of cases are handled is a pragmatic argument–i.e. there’s just no other way of handling so many cases!  The argument is not that plea bargaining is a terrific way to administer justice.  And what about that “risk” of “compelling” persons to plead guilty–does that not threaten, you know,  the constitutional right to trial by jury?   Without much elaboration, Justice Scalia just says we “accept” it for pragmatic reasons.  Oh.  Today is just not a day for originalism I guess.

For additional background, go here.

Go to Trial and Crash the System?

Yesterday, Law Professor Michelle Alexander wrote an op-ed for the New York Times with the title, “Go to Trial: Crash the Justice System.”  Here’s an excerpt:

AFTER years as a civil rights lawyer, I rarely find myself speechless. But some questions a woman I know posed during a phone conversation one recent evening gave me pause: “What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn’t we bring the whole system to a halt just like that?”

The woman was Susan Burton, who knows a lot about being processed through the criminal justice system.

Her odyssey began when a Los Angeles police cruiser ran over and killed her 5-year-old son. Consumed with grief and without access to therapy or antidepressant medications, Susan became addicted to crack cocaine. She lived in an impoverished black community under siege in the “war on drugs,” and it was but a matter of time before she was arrested and offered the first of many plea deals that left her behind bars for a series of drug-related offenses. Every time she was released, she found herself trapped in an under-caste, subject to legal discrimination in employment and housing. …

I was stunned by Susan’s question about plea bargains because she — of all people — knows the risks involved in forcing prosecutors to make cases against people who have been charged with crimes. Could she be serious about organizing people, on a large scale, to refuse to plea-bargain when charged with a crime?

“Yes, I’m serious,” she flatly replied.

I launched, predictably, into a lecture about what prosecutors would do to people if they actually tried to stand up for their rights. The Bill of Rights guarantees the accused basic safeguards, including the right to be informed of charges against them, to an impartial, fair and speedy jury trial, to cross-examine witnesses and to the assistance of counsel.

But in this era of mass incarceration — when our nation’s prison population has quintupled in a few decades partly as a result of the war on drugs and the “get tough” movement — these rights are, for the overwhelming majority of people hauled into courtrooms across America, theoretical. More than 90 percent of criminal cases are never tried before a jury. Most people charged with crimes forfeit their constitutional rights and plead guilty.

“The truth is that government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used,” said Timothy Lynch, director of the criminal justice project at the libertarian Cato Institute. In other words: the system is rigged.

In the race to incarcerate, politicians champion stiff sentences for nearly all crimes, including harsh mandatory minimum sentences and three-strikes laws; the result is a dramatic power shift, from judges to prosecutors.

Read the whole thing.  I am glad to see this attention to the deplorable plea bargaining system that has developed here in the USA.  Susan Burton and Professor Alexander pose an interesting thought experiment, but it is not realistic.  The government has enormous leverage over everyone’s liberty.  By offering straight probation to some and threatening others with additional charges and more prison time, the persons accused would be unable to hold the line–individuals will take the deals offered and surrender their right to a trial.

If we take the Constitution seriously, the only options open to us are (1) scale back the criminal codes–especially the drug laws; (2) spend the money that will be necessary to conduct the trials; (3) amend the Constitution.

For more background, go here (pdf).

The Casey Anthony Verdict and the Criminal Justice System

The Casey Anthony case is all over the news this week.  I did not follow the case closely, but Harvard law professor Alan Dershowitz has a good article about the case and the criminal law in today’s Wall Street Journal.  One thing I do know is that this highly-publicized trial will reinforce a commonly held view about criminal justice in America–that juries weigh evidence and decide whether the accused is guilty or not.  As I note in the July issue of Reason magazine, trials are infrequent events in our legal system.

Most Americans are under the mistaken impression that when the government accuses someone of a crime, the case typically  proceeds to trial, where a jury of laypeople hears arguments from the prosecution and the defense, then deliberates over the evidence before deciding on the defendant’s guilt or innocence. This image of American justice is wildly off the mark.

Read the whole thing.  The July issue of Reason is chock full of good articles about various aspects of criminal injustice.

Jury Acquits Tonya Craft

A Georgia jury has acquitted Tonya Craft of 22 criminal charges relating to child abuse and child molestation. A remarkable outcome given the awful rulings of the judge during the trial.  Previous coverage here and here.   

When so many charges are leveled, the pressure to enter into a plea bargain intensifies–even if the accused is innocent.  The defense attorney will say something like, “Look, some kids are going to say you did something awful.  That’s going to happen.  We might persuade the jury to acquit on most of the charges, but there’s still a chance they will convict you on a few counts.  That could mean several years in jail.  Might be better to plead guilty to one charge, serve six months, and then get on with your life.”   Some people breezily proclaim that they would never plead guilty to a crime they did not commit, but when your own freedom is really on the line, the decision is not so easy.

More on plea bargaining here (pdf).