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December 4, 2015

"The Injustice of the Plea-Bargain System"

The title of this post is the headline of this op-ed authored by Lucian Dervan and appearing in today's Wall Street Journal. Here are excerpts:

The House Judiciary Committee introduced five bills this year in a bipartisan effort to reform America’s criminal-justice system.  With incarceration rates in the U.S. five to 10 times higher than in Western Europe and other democracies, the bills aim to provide sensible reforms such as rewriting mandatory-sentencing statutes.  Yet none directly addresses plea bargaining, a practice that induces too many defendants to plead guilty to avoid what has come to be known as the trial penalty....

Even in cases without mandatory sentences, it is common for sentences handed down after trial to be far more severe than those offered to induce guilty pleas.  This “trial penalty” is weighed by thousands of defendants each day when considering whether to accept a plea offer.

A 2013 Human Rights Watch study found that the average federal drug sentence for defendants who proceeded to trial in 2012 was three times longer — an increase of 10 years — than for defendants who pleaded guilty.  In that study, a federal judge in New York described the sentences defendants face if they reject plea offers as “so excessively severe, they take your breath away.”  Not surprisingly, the great majority of convictions come from guilty pleas.  According to the U.S. Sentencing Commission, over 97% of convictions in the federal system arise from guilty pleas; state systems aren’t far behind at about 95%.

There are numerous documented cases of innocent defendants pleading guilty, including well-known examples such as Brian Banks.  In 2002, at the age of 17, Mr. Banks was wrongly accused of rape yet chose a plea bargain with a maximum sentence of seven years in prison.  If he rejected the offer and lost at trial, he faced 40 years to life in prison.  He took the deal and falsely confessed.  In 2012, after definitive evidence of his innocence came to light, a California court reversed the conviction.

The Supreme Court established the constitutionality of plea bargaining in Brady v. United States (1970).  But the court warned that it would have “serious doubts” if the “encouragement of guilty pleas by offers of leniency substantially increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves.”  Sadly, the trial penalty has done just that.

December 4, 2015 at 11:00 AM | Permalink


Guilty pleas in the federal system are obvious. You get a 3 level drop in the already obscene sentence. Chances are its for drugs.

Going to trial for drugs against the feds is "The Perfect Storm"

How dare yiu challenge us you little peon. So they stomp you into the mud.

Must be nice to have unending power and not care a but about people and the country has to oay for it all.

Feds need to back to what they were. Handle cases that are across state lines and difficult for states to get info. Terrorists, etc.

Too much Federalism. Too much big govmnt, we can do it all. Yes, in a perverted style.

Cost is beyond belief.

Posted by: MidWestGuy | Dec 4, 2015 6:20:39 PM

I have been a state prosecutor in a Bay Area county for 17 years as well as a federal prosecutor. The first question asked by defense counsel after bail is "what is the offer?" When they don't like what I have to offer they ask the judge for less. Often the judges give a lower number because they want to move cases along.

The so called "trial penalty" is real but only because too many prosecutors and judges so grossly under sentence those who plead. Make no mistake, defendants and defense counsel want this. It is the rare innocent who suffers, but of course they would suffer more if they went to trial and got the full ride.

I always chuckle at these articles criticizing plea bargaining as if taking away th currency of the right to plead guilty in order to get a lesser sentence is something the defense wants to give up for nothing. Fat chance. They just want lower sentences and using a system they asked for as leverage is an added bonus.

And please don't tell me about federal drug minimum mandatory cases, those are such a small percentage of the plea bargaining going on in this country.

Posted by: David | Dec 4, 2015 6:26:56 PM

Wow, Mr Banks got 7 yrs for a guilty plea, otherwise faced 40 yrs with a trial.

If he was black and poor, what chance would he have.

Good article Doug. On rewriting the mandatories. First we have to get rid of the old geisers. Itherwise the rewrite will have 14 exceptions and nobody will benefit.

Why cant these guys let loose of such unwielding power. Maybe because they are totally incompetent as a group at making good decisions. Im whining now but you all know Im right.

Posted by: MidWestGuy | Dec 4, 2015 6:28:28 PM

All immunities of prosecutors and of judges should be ended by a constitutional amendment.

If an innocent defendant accepts a guilty plea, it should be considered a deviation from professional standards of due care. And the judge and the prosecutor should have to pay damages and exemplary damages because the plea represents gross negligence and an intentional tort. To deter.

Posted by: Supremacy Claus | Dec 4, 2015 7:08:48 PM

I agree with Supremacy Claus in his comment directly above. The prosecutor who commented has some valid points too.
Years ago there was this a big political movement to get tough on crime. We got so tough that we are almost as bad as Stalin's Soviet Union. It is too expensive.

Posted by: Liberty1st | Dec 4, 2015 8:31:50 PM

David. Do you support the ending off immunities, including tort immunities for prosecutors and judges.

If you agree, legal liability is a substitute for vengeful violence, then legal immunity fully justifies vengeful violence. [The contra-positive of a true statement is always true.]

Posted by: Supremacy Claus | Dec 4, 2015 11:20:35 PM

"only because"

I really question when complex things are discussed by using words like "only" -- the system is complicated and even if it works as a whole, there are going to be people who lose out. Given millions of people ultimately are involved over the years this is apparent. The "rare" person here or the "small percentage" amount to how many in raw numbers? And, the policy of one area is not necessarily that of another. Judges aren't totally fungible. Finally, defense attorneys act in a system and work with averages. Oh, the "penalty" would be a lot less if the people otherwise wouldn't be spending extra time in prison before having said trial.

Posted by: Joe | Dec 5, 2015 11:32:22 AM

ETA: Plea bargaining is going to continue and it is going to be the most productive thing for both sides in many cases. The devil is in the details -- it is a sort of contract after all and contracts are regulated in various ways to deal with possible inequities.

Posted by: Joe | Dec 5, 2015 11:46:33 AM

Part of the injustice of the plea bargain system is that the lawyers no longer know how to pick a jury or try a case. So if there is an innocent man or woman on the long list of defendants on the Public Defender list then there is no one capable of defending them at a jury trial.

Posted by: Beldar | Dec 5, 2015 2:04:53 PM

Sentences are longer after a trial often because the Judge has sat through the evidence, witness after witness, exhibit after exhibit, and now has a more complete understanding of the full extent of the crime and its affects, and oftentimes has listened to the defendant perjure himself.

Posted by: domino | Dec 6, 2015 9:54:13 AM

Domino makes an excellent point. By definition, a plea is a false conviction of a lesser crime.

That brings up the point I have repeatedly made. The adjudicated charge is fictitious. The indicted charges are closer to reality. Therefore any disposition of an inmate should be based on the indicted charge and not on the adjudicated charge.

Someone who invaded her home and stabbed his girlfriend pleads to criminal trespass, or a rapist pleads to a harassment charge (that is a for real scenario - a violent rapist who punched his elderly victim and had his way, got a ticket, as if jaywalking). They get classified as non-violent offenders to be discharged after a judge finds over-crowding of the prison is unconstitutional. They go to the head of the line of discharges.

Is this too hard for the lawyer to follow? Let me know. I can chop this explanation into smaller pieces.

Posted by: Supremacy Claus | Dec 6, 2015 10:43:40 AM

YES, plea bargain is a judicial system dream. The court usually appoints an attorney for the defendant(s). The court appointed attorney usually does not follow due process. In a particular case that I am thinking about, the attorney assistant said he should take a plea bargain because the defendant knows how biased the Jury is on certain subjects (have a recording as proof). It seems that to get justice in our judicial system, we must educate our Jury. Prison is supposed to be for murderers and habitual criminals that can not be reformed as part of society. Every case is different and should be judged accordingly. These ridiculous sentences that juries are passing out to defendants are absolutely incompetent. There is such a thing called "Juror's Handbook", that can be obtained online. I beg all Americans to know their rights as a Juror, you never know when you might be before a jury.

Posted by: LC in Texas | Dec 6, 2015 5:00:23 PM

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