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August 7, 2017

Effective reminder of plea realities and over-criminalization in modern US criminal justice systems

Emily Yoffe has this lengthy new Atlantic article that effectively reviews what most modern criminal justice practitioners know well about the criminal justice system: plea practices are the heart of criminal case processing. The piece is headlined "Innocence Is Irrelevant: This is the age of the plea bargain—and millions of Americans are suffering the consequences." I recommend the piece in full, and here are excerpts:

This is the age of the plea bargain. Most people adjudicated in the criminal-justice system today waive the right to a trial and the host of protections that go along with one, including the right to appeal. Instead, they plead guilty. The vast majority of felony convictions are now the result of plea bargains—some 94 percent at the state level, and some 97 percent at the federal level. Estimates for misdemeanor convictions run even higher. These are astonishing statistics, and they reveal a stark new truth about the American criminal-justice system: Very few cases go to trial. Supreme Court Justice Anthony Kennedy acknowledged this reality in 2012, writing for the majority in Missouri v. Frye, a case that helped establish the right to competent counsel for defendants who are offered a plea bargain. Quoting a law-review article, Kennedy wrote, “ ‘Horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.’ ”...

Because of plea bargains, the system can quickly handle the criminal cases of millions of Americans each year, involving everything from petty violations to violent crimes. But plea bargains make it easy for prosecutors to convict defendants who may not be guilty, who don’t present a danger to society, or whose “crime” may primarily be a matter of suffering from poverty, mental illness, or addiction. And plea bargains are intrinsically tied up with race, of course, especially in our era of mass incarceration.

As prosecutors have accumulated power in recent decades, judges and public defenders have lost it. To induce defendants to plead, prosecutors often threaten “the trial penalty”: They make it known that defendants will face more-serious charges and harsher sentences if they take their case to court and are convicted. About 80 percent of defendants are eligible for court-appointed attorneys, including overworked public defenders who don’t have the time or resources to even consider bringing more than a tiny fraction of these cases to trial. The result, one frustrated Missouri public defender complained a decade ago, is a style of defense that is nothing more than “meet ’em and greet ’em and plead ’em.”...

Thanks in part to plea bargains, millions of Americans have a criminal record; in 2011, the National Employment Law Project estimated that figure at 65 million. It is a mark that can carry lifetime consequences for education, employment, and housing. Having a record, even for a violation that is trivial or specious, means a person can face tougher charges and punishment if he or she again encounters the criminal-justice system. Plea bargaining has become so coercive that many innocent people feel they have no option but to plead guilty. “Our system makes it a rational choice to plead guilty to something you didn’t do,” Maddy deLone, the executive director of the Innocence Project, told me....

“No one sets out to create bloated criminal codes,” I was told by David Carroll, the executive director of the Sixth Amendment Center, which protects the right to counsel. “But once they exist, vast resources are spent to justify them.” In response to the crime wave, the United States significantly expanded police forces to catch criminals, prosecutor’s offices to charge them, and the correctional system to incarcerate them. Legislators have added so many acts to criminal codes that in 2013, Neil Gorsuch—now on the Supreme Court, but then an appellate judge—publicly raised concerns. In a speech sponsored by the Federalist Society, he asked, “What happens to individual freedom and equality—and to our very conception of law itself—when the criminal code comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?”...

No amount of tinkering, however, will matter much unless Americans stop trying to use the criminal-justice system as a tool for managing social ills. “Why are these cases being pumped into the system in the first place?,” [Professor Stephanos] Bibas said to me. He’s not alone in asking. Across the country, in red states and blue states, reformist state and district attorneys have recently been elected on platforms of rolling back harsh sentencing, reducing the enforcement of marijuana laws, and knocking down crimes from felonies to misdemeanors. And change is happening. Last year, for example, the New York City Council passed legislation that made offenses such as public drinking and urination civil rather than criminal violations, and thus subject largely to tickets and fines.

Paring back our criminal code and eliminating many mandatory minimum sentences will be crucial to reform. In the long-running War on Drugs, the government has regularly prosecuted people for possessing small amounts of illegal substances, or for merely possessing drug paraphernalia. Often, on the basis of no evidence beyond a police officer’s assertion, officials have charged and prosecuted defendants for the more serious crime of “intent to sell.” But during Prohibition, when the manufacture, transport, and sale of alcohol were federal crimes, Americans were not arrested by the millions and incarcerated for drinking. And they certainly didn’t plead guilty to possessing martini glasses and other drinking paraphernalia....

The United States is experiencing a criminal-justice crisis, just not the one the Trump administration talks about. By accepting the criminalization of everything, the bloat of the criminal-justice system, and the rise of the plea bargain, the country has guaranteed that millions of citizens will not have a fair shot at leading ordinary lives.

August 7, 2017 at 11:02 AM | Permalink


Lawyers are failing their clients, their country and need to revamp.

Posted by: Liberty1st | Aug 7, 2017 3:03:52 PM

"But plea bargains make it easy for prosecutors to convict defendants who may not be guilty, who don’t present a danger to society. . . ." Whoever said that the convictions were only for those who present a danger to society? Sometimes it really is to disincentive negative, but not dangerous, behavior.

It is one-sided to characterize a defendant going to trial as suffering a trial penalty. These defendants are giving up the currency of a jury trial for a reduced sentence. Often a sentence offered by the court, not the prosecutor. I for one would like to see more trials but the defendants don't want them, they want me or the court to make them a offer. Frequently the court of counsel get angry when I won't make an offer (even in cases without a mandatory minimum). They want the penalty that is reduced because that they "pay" for it with the currency provided by the Constitution - a jury trial. Many judges like the system as is too. Why do you think articles like the above go nowhere? Because prosecutors have a stranglehold over the legislature? Not in California.

This pablum about increased prosecution power forcing the guilty to plead is a half truth and frankly is extraordinarily rare. It is true that the spread between a plea bargain sentence and a post trial sentence can be unreasonably wide, but it is NOT only prosecutors who drive this reality. Judges and defense lawyers who like the plea bargain discount drive it too.

I just wonder, if we decriminalized all drugs, will we finally stop hearing about all this angst about overcriminalization? What other crimes are they talking about that are dragging all these otherwise potentially productive people down? Credit card fraud, drunk driving, theft, crimes of violence, what? As if the former defendants would all be employable but for their record. What is rarely talked about in the over criminalization discussion is the reality that the vast majority of crimes are events that people agree should be crimes. Exotic crimes are just that and rarely committed or prosecuted.

One final note. What mandatory minimums do they want complete judicial discretion for?All crimes, including, murder, rape, armed robbery? Regardless, why is it not reasonable for society to say that if certain crimes are committed there is a floor which all defendants will get?

Here's a solution, if you want more jury trials, stop allowing the offering of such a steep discount for pleading guilty. Maybe for certain crimes a jury should be made mandatory. But please stop blaming it on over criminalization and prosecutorial power. That is simplistic and wrong.

Posted by: David | Aug 7, 2017 6:56:39 PM

David: How can you justify the unconscionable absolute tort immunity of the prosecutor? I think it is bad for the specialty, and not just for the victims of your carelessness.

1) Your specialty has a high error rates, even in $million budget cases, such as death penalty cases, with extremely high false negatives and false positives;

2) torts are a substitute for violence, and formal logic dictates that your specialty should be subjected to violence if you fail to waive the immunity;

3) your liability should be under professional standards of due care, even if your acts qualify you for strict liability. You are so bad, strict liability would bankrupt all governments, and in weeks;

4) you should be liable for not just prosecuting the innocent, but also for wrongful discretion that results in damages to a foreseeable victim of crime;

5) you may carry professional liability insurance as the lawyer forces everyone to do;

6) the pro-lawyer biased Supreme Court has ruled that you do not have a duty to an individual, the one that pays your salary, that one. If your duty is to an entire jurisdiction, then, OK, let's have an aggregate as you allow black citizens, as a class, to endure a five fold higher rate of murder victimization;

7) are the police your agents, or not? Should you not be made to pay for all their carelessness resulting in damages to plaintiffs? You need to control your dog better, being 100% responsible for their damages;

8) you are an at will employee of biased, and really stupid political has been hacks; that is unbearable,and you should have protection from their politically motivated order to prosecute or to not prosecute;

9) most laws, regulations are quackery not enhancing anyone's safety, you should be made to pay for enforcing a quack rule;

10) because malfeasance is not part of your job description, the taxpayer should not pay for the damages your specialty is causing;

11) lastly, your specialty allows 30 million crimes a year, and prosecutes only 2 million, prosecution being one of the strongest factors in suppressing crime, not quack reg gotchas, but the common law crimes and internet crimes. Then, when a victim fights back, you prosecute the victim to deter competition with your failed agents, the police. How much can a specialty suck and for how much longer before the public just gets rid of you?

Posted by: David Behar | Aug 7, 2017 7:46:38 PM

Law professors need to read this article. Much of the problem of the profession stems from the law schools and professors who never tried a jury trial in their lives.

Posted by: Liberty1st | Aug 7, 2017 9:59:33 PM

I appreciate David's perspective.

Posted by: Joe | Aug 8, 2017 10:09:34 AM

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