« Lots of GVRs (especially to Fifth Circuit) on latest SCOTUS order list | Main | "Can Criminal Justice Reform Survive a Wave of Violent Crime?" »

June 21, 2021

"Truth, Lies and The Paradox of Plea Bargaining"

The title of this post is the title of this notable new paper authored by Thea Johnson now available via SSRN.  Here is its abstract:

This Article describes the regular use of lying during plea bargaining by criminal justice stakeholders, and the paradox it presents for those who care about creating a fairer criminal legal system . The paradox is this: lying at plea bargaining allows defendants the opportunity to negotiate fair resolutions to their cases in the face of a deeply unfair system, even as that lying makes way for — and sustains — the problematic system it seeks to avoid.

The Article lays out a taxonomy of lying at plea bargaining, organizing the types of lies into three categories: lies about facts, lies about law and lies about process.  The criminal justice system produces a litany of injustices. Implicitly authorized, systemic lying offers a means of dealing with these perceived injustices. But lying also obscures the system from public view, hiding and relieving pressure points via plea bargaining.

Unfortunately, what seems like the natural solution — to make the system more transparent and accountable — would likely harm individual defendants.  If lying at plea bargaining disappeared tomorrow, many defendants would suffer dire consequences, such as deportation for minor charges or being subjected to outrageous mandatory minimum sentences.  These defendants would lose their ability to avoid the injustices of the system.  And yet, lying at plea bargaining is the result of a series of interlocking, mandatory laws and rules that many stakeholders believe are deeply unfair and should be reformed.  Thus, lying at plea bargaining is both a means of avoiding injustice and a force prohibiting meaningful reformation of the laws and rules that produce such injustice.  To put it another way, the lies in the taxonomy are workarounds for a system so barbaric that lawyers are willing to lie to help defendants avoid the worst of it, but they also make that same system nearly impossible to reform.

Examining this paradox leads to the conclusion that conversations about reform must focus on total overhaul of the system, not piecemeal correction.  Something closer to abolition than alteration is the appropriate response to a system so entangled that lying is the only way to reach a just resolution.

June 21, 2021 at 12:59 PM | Permalink


Both thru my work as a criminal defense paralegal and from a case of my own, I have long observed the dishonesty that goes on in the plea bargaining context. I have even seen defense lawyers get clients to plead to charges of which they are actually innocent, as part of a package (involving pleading to multiple charges), to get the case resolved and over. It offends me when prosecutors insist that defendants plead to charges they know the defendant is innocent of, or they will take the case to trial and get a much longer sentence. One of the worst cases of this phenomena involved a defendant who had pulled over to the side of road on his way home from buying heroin. He snorted the heroin in the car at the side of the road, with the engine running and promptly passed out, since the heroin was laced with fentanyl. Passers by saw him slumped over the steering wheel and called the police, who could not get into the car, which had automatic door locks. The police called fire department paramedics, who have tools for breaking glass to get into cars. They broke the rear passenger window to get to him and administer NARCAN, which saved his life. The police charged him with DUI, possession of heroin and possession of drug paraphernalia. Under the Kentucky Supreme Court's 4-prong "Wells" test, he could not have been guilty of DUI. He did not consume any drugs until the car was pulled over to the side of the road and placed in park. One of the 4 prongs of the Wells test is whether the defendant was asleep or awake. In this case, the defendant was in a coma near death and could not have driven the car anywhere, even if he wanted to. Kentucky also has a "Good Samaritan" statute about drugs and drug paraphernalia, to encourage people to call for help for those who have overdosed. The statute provides that neither the calling party nor the subject of the O.D. call can be prosecuted for drugs or drug paraphernalia found in the course of providing medical assistance to the person who O.D.ed. Ky.'s police and prosecutors dislike this law and regularly file the charges anyway, leaving it to the defense to move to dismiss them, based upon the Good Samaritan's statute. In the case I described above, the defense lawyer got his client to plead guilty to all charges (even though he had complete defenses to every one of them), just so that he could get a probated sentence for the client! I thought that it was the heighth of malpractice for defense counsel to advise his client to plead guilty to 3 charges he was innocent of, without advising him of his legal defenses. That case led me to quit working for that defense lawyer, who has been in practice for more than 40 years.

Posted by: Jim Gormley | Jun 21, 2021 1:39:39 PM

I have also seen a misdemeanor assault case where the prosecutors offered a defendant a 6 month jail sentence after he had already been in jail for 7.5 months (unable to make bond) and his trial date was set for 2 months later. The defendant might have prevailed at his trial, based upon self-defense (the party his was accused of striking had threatened him with a knife), but he would have had to wait 2 more months in jail to get to trial -- but if he pleaded guilty he could leave jail that day. Notably, his 6 month sentence was 1.5 months shorter than the amount of time he had actually spent in jail awaiting trial!

Posted by: Jim Gormley | Jun 21, 2021 2:01:01 PM

"Biden administration to endorse bill to end disparity in drug sentencing between crack and powder cocaine"


From article: "The legislation, which is sponsored by Senate Majority Whip Richard J. Durbin (D-Ill.), Sens. Cory Booker (D-N.J.), and Rob Portman (R-Ohio), would eliminate the sentencing disparity and give people who were convicted or sentenced for a federal cocaine offense a resentencing."

Posted by: Joe | Jun 21, 2021 7:09:39 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB