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March 16, 2023
Columnist George Will argues high plea rates can be explained by, "to a significant extent, coercion"
In this new Washington Post piece, headlined "How government’s excessive reliance on plea deals can undermine justice," George Will highlights the ABA's recent Plea Bargain Task Force Report (discussed here) to lament how prevalent pleas have become in our criminal justice systems. Here are some excerpts:
Herewith a two-question quiz: What is the only right affirmed both in the Constitution of 1787 and in the Bill of Rights? And what governmental practice produces the most pervasive and glaring civil rights deprivations?
The answer to the first question is: the right to trial by jury. (Article III, Section 2: “The trial of all crimes, except in cases of impeachment, shall be by jury”; Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”) The answer to the second is: plea bargaining as currently practiced, which often effectively nullifies this right.
A just-published report by an American Bar Association task force says plea bargaining has not only become the primary way to resolve criminal cases, “some jurisdictions have not had a criminal trial in many years.” Think about that: Years can pass without a defendant exercising the constitutional right to an adversarial process conducted in public in front of a neutral judge and a jury of the defendant’s peers....
Last year, 98.3 percent of federal criminal convictions, and about 95 percent in the states, resulted from bargained guilty pleas. Why? To a significant extent, coercion.
This often begins with detention in frightening conditions: To be arrested is to be suddenly plunged into control by a government speaking an often arcane legal language. Then there is “stacking” — prosecutors piling on charges which, in a context of mandatory minimum sentences, force defendants to choose between risking potentially life-ruining trials and pleading guilty to lesser charges, even if innocent....
The task force’s report stresses that plea bargaining has legitimate uses. It incentivizes defendants to accept responsibility for criminal conduct, and offers finality to their victims and the community. Furthermore, prosecutorial resources are scarce, and plea bargaining is a mechanism for efficiently resolving cases. No value in life, however, invariably supersedes all others, and the pursuit of efficiency has too often become “the driving force of criminal adjudication,” supplanting transparency and justice....
The Cato Institute’s Clark Neily and others suggest that plea bargaining on today’s “industrial scale” could be countered by a “trial lottery”: A small percentage of cases in which plea agreements have been reached should be randomly sent to trials. How often would the government be unable to secure a conviction after it has managed to induce a pre-trial guilty plea? Let’s find out.
I wish Will had mentioned the problems of acquitted conduct sentencing enhances in his discussion of the various forces that contribute to the very high rate of guilty pleas. I raise the issue in part because as long as significant sentencing increases based on acquitted conduct remains permissible, prosecutors will always have a great incentive to bring as many charges as possible even if some plea cases were to "be randomly sent to trials."
Prior related post:
March 16, 2023 at 10:08 AM | Permalink
Comments
I look forward to Bill Otis claiming that George Will is "far left," just like the anti-DP Catholic Church and unlike the pro-DP Chinese Communist Party.
(If anyone objects to my mentioning him in a thread he hasn't posted to, note that he mentioned me in the "Panicked Legislation" thread, which I never posted to.)
Posted by: Keith Lynch | Mar 16, 2023 5:24:25 PM
Clark and I had a robust debate about plea bargaining courtesy of the UVA Federalist Society and moderated by Arizona Supreme Court Justice Clint Bolick. It's here: https://fedsoc.org/events/feddie-night-fights-plea-bargain-punch-out
Clark and I have numerous disagreements, but we're friendly, and co-authored an op-ed taking issue with Merrick Garland's overreach in involving federal law enforcement in local school board disputes about what gets taught and how, https://fedsoc.org/events/feddie-night-fights-plea-bargain-punch-out
Posted by: Bill Otis | Mar 17, 2023 12:56:57 AM
Oooooooooops. My mistake. The op-ed is here: https://www.washingtonexaminer.com/opinion/justice-department-must-end-actions-against-concerned-parents
Posted by: Bill Otis | Mar 17, 2023 1:04:15 AM
Keith Lynch --
"I look forward to Bill Otis claiming that George Will is 'far left'..."
Actually, he's libertarian-flavored, so we've had our disagreements, but I've liked him ever since, as Master of Ceremonies at a Kennedy Center gala a few years back, he presented my wife with the Bradley Prize for her foundational work in advancing the conservative movement, https://fedsoc.org/2009-bradley-prize
Posted by: Bill Otis | Mar 17, 2023 1:14:12 AM
Doug --
George Will is a smart guy with some strong suits and some weak ones. Among the latter is that he has never litigated a criminal case, and so he has no firsthand knowledge. I litigated plenty, and you can have the following under oath if you want:
-- The main reason by far that defendants plead guilty is that they're ice-cold on the evidence and know they're going to lose at trial.
-- The second most important reason is that, because of the crush of cases, the defendant knows that in order to get to a deal, the prosecutor will throw out lots of stuff that would also very likely bring about a conviction. Hence the defendant gets convicted for only a fraction of provable offenses.
-- The third most important reason is that the defense bar is in love with plea bargaining. This is not because it's corrupt or stupid. Criminal defense lawyers want a negotiated deal for the same reason nearly all lawyers in civil cases want a negotiated deal, to wit, all the parties think they'll do better with that than with litigation. The defense bar's love affair with guilty pleas is such that, in the typical case, the first question the prosecutor gets asked when the defense lawyer comes through the door is not, "When do I get to see the case file?" It's, "What's the offer?"
-- Lastly, if a defense counsel thinks plea bargaining is so awful (which as noted they don't), the answer is easy. DON'T DO IT. Anyone who wants a trial can get one automatically.
Will there ever, ever come a day when the defense stands down from wailing that IT'S EVERYBODY ELSE'S FAULT?
Posted by: Bill Otis | Mar 17, 2023 2:39:50 AM
Plea bargaining would be a good system in a world in which all defendants are guilty. Also in a world where every innocent defendant can afford to spend as much on a defense as the government spends on their prosecution, and in which cops never lie under oath and prosecutors never suborn perjury or intimidate defense witnesses against testifying. Sadly, that's not the world we live in.
Yes, the defendant can always opt for a trial. And when being mugged you can always opt to refuse to hand over your wallet. A non-wealthy innocent defendant sometimes wins at trial, and a mugger's gun sometimes jams.
Posted by: Keith Lynch | Mar 17, 2023 7:42:03 AM
And, of course, defendants never intimidate the prosecution witnesses. While there are some bad apples in the world of prosecution and police departmeents, there are also bad actors in the world of defense attorneys and defense witnesses. Not to condone suborning perjury, but it is the exception not the rule. Most perjury allegations that I have seen in criminal cases are simply the easy assertion by defendants that they are, of course, innocent; so the government witnesses had to be lying.
I am waiting for this world in which the government spends unlimited resources on prosecution. A lot of the government resources which are included in estimates of spending are resources spent on cases which are never filed -- police investigations into crime in which the evidence never quite gets there to charge anybody and prosecutors reviewing referrals and deciding that there is not enough there to warrant charges. And when dealing with police departments, a lot of the resources are spent on municipal cases or traffic offenses. Admittedly, there are some offenders with a limited budget to spend on private attorneys, but most public defenders that I have dealt with are willing to spend whatever is needed to defend a case (and they have the resources to outspend most small county prosecutors).
Posted by: tmm | Mar 17, 2023 9:32:52 AM
I highly recommend “Punishment Without Trial: Why Plea Bargaining Is a Bad Deal” (2022)
by Carissa Byrne Hessick. She gives a great argument that large-scale plea bargaining is counter to the design of the American system. She asserts—as I personally believe in most areas of the criminal legal system (prob why I love this book)—that plea bargaining is basically a hack to operate a system that criminalizes and processes an unconscionable number of citizens and skews power toward the state and away from individual rights. Ten out of ten, must read!
Posted by: Spike Bradford | Mar 17, 2023 10:36:20 AM
Keith Lynch --
"Yes, the defendant can always opt for a trial. And when being mugged you can always opt to refuse to hand over your wallet."
Except that when you're being mugged, (1) the mugger hasn't taken the case that he should get your wallet to a grand jury, (2) you don't have a lawyer there to make it two-on-one against the mugger, and (3) you don't have a judge there with power to tell the mugger no dice, you only get the wallet after a trial if the wallet owner wants one. And to ask you under oath whether you consent to giving up your wallet, plus maybe two or three dozen other questions to ensure that there is an evidentiary, legal, and factual basis for your having to hand over the wallet.
Pretending that negotiating a plea is really a mugging makes a nice rhetorical device, but is still just pretending. People who actually know the system, like tmm, are trying to set you straight, but as usual you think you're too smart to listen to fair-minded people with years of actual courtroom experience.
You live in a poisoned fantasy world where the police, prosecutors and judges are criminals and actual criminals are martyred victims. If you actually think this, you're out of your mind.
Posted by: Bill Otis | Mar 17, 2023 1:30:52 PM
Spike Bradford --
"...plea bargaining is basically a hack to operate a system that criminalizes and processes an unconscionable number of citizens and skews power toward the state and away from individual rights."
Plea bargaining doesn't "criminalize" anything any more than a trial "criminalizes" anything. Given behaviors are criminalized by statutes, a product of the legislative branch. Plea bargains and trials are done by the executive and judicial branches, which simply operate under the statures the legislature gives them. If you think that too much behavior is criminalized, you should take that up with your Congressman; it's above the prosecutor's pay grade.
(Or -- and I know this is a radical suggestion -- you could change the behavior (i.e., take the needle out of your arm) rather than change the statute).
Posted by: Bill Otis | Mar 17, 2023 1:48:47 PM
Read more closely, Bill. I said it is the system that over criminalizes and processes. Plea bargaining is the hack because we are so rabid in our punishment culture there's no way we could operate it (we barely manage do so anyway) without shortcuts. Also, I was paraphrasing the argument of the book I recommended.
You'd do well to not paint all critics as lily-livered liberals. The most American thing we can do it criticize and work to improve.
Posted by: Spike Bradford | Mar 17, 2023 4:37:57 PM
Spike Bradford --
"Plea bargaining is the hack because we are so rabid in our punishment culture..."
Only we don't have a punishment culture. It's more accurate to say we have a culture that will turn itself into a pretzel to avoid consequences (most recently for running a bank into the ground). "Punishment culture" is just a catchphrase used by those who misconduct has earned accountability to avoid it by pretending that the problem is not their behavior, it's everybody else's behavior.
"...there's no way we could operate it (we barely manage do so anyway) without shortcuts."
Then don't take the shortcuts and assert your right to trial. The reason this very seldom happens is the one I noted before: Defendants don't want trials because they know they're going to lose. The most dreaded thing an AUSA can say to a defense lawyer is, "Gosh, these negotiations don't seem to be going anywhere, so the case will be headed to trial."
"You'd do well to not paint all critics as lily-livered liberals."
Which is why I don't do it (and relatedly, why you don't quote me as saying it). Many critics, including Doug, are more libertarian than liberal.
"The most American thing we can do it [is?] criticize and work to improve."
This flag-waving just begs the question of what an improvement WOULD BE. I personally think, and have said many times before, that we should select several districts where plea bargaining will be banned for a year, then, afterwards, see how the defense bar likes it. My bet is that their screeching will be audible on Pluto (and we won't have to wait a year for it, either).
Posted by: Bill Otis | Mar 17, 2023 5:22:18 PM
tmm, some defense attorneys have been known to hand over witness addresses to the accused, and sometimes the witnesses get hurt. Never seen a defense attorney disciplined, let alone prosecuted for that--actually there was one--in Indiana about 25 years ago--In re Goebel--which is one of the worst Indiana Supreme Court decisions ever. And the list of bad Indiana Supreme Court decisions is long and distinguished.
Here's a plea case where dude was innocent, although not purely innocent.
https://reason.com/2023/03/17/an-oregon-man-was-wrongly-imprisoned-for-almost-a-year-because-of-an-error-in-a-dmv-database/?itm_source=parsely-api
Posted by: federalist | Mar 18, 2023 2:40:45 PM
tmm wrote:
> Not to condone suborning perjury, but it is the exception not the
> rule. Most perjury allegations that I have seen in criminal cases
> are simply the easy assertion by defendants that they are, of
> course, innocent; so the government witnesses had to be lying.
I'm skeptical. Perjury is central to "prisoner's dilemma," which was
already ancient when it was used to great effect in the Salem witch
trials, in which we know for a fact that everyone was innocent, since
witches don't exist.
And I personally experienced it from both sides. My guilty roommate,
William Kelly Shields, agreed to testify against me in return for
immunity. And I was told all charges against me would be dropped if
I were to testify that my cellmate, Michael G. Simoneau, confessed to
murdering Ron Pettine.
Of course you could argue that prosecutors couldn't be sure that
Shields was lying when he accused me, and that they couldn't be sure
that I was lying had I claimed Simoneau confessed to me. (He didn't
confess to me, so I didn't testify that he had.) But they don't care.
They only care about getting convictions.
If I am the victim of a conspiracy (something I've actually never
claimed), it isn't necessarily a conspiracy against me. I may just be
collateral damage in a conspiracy against Simoneau. Or Simoneau may
be collateral damage in a conspiracy against an even bigger fish.
> I am waiting for this world in which the government spends unlimited
> resources on prosecution.
I never said it was unlimited. I said it was enormously more than is
spent on defense.
> And when dealing with police departments, a lot of the resources are
> spent on municipal cases or traffic offenses.
Traffic offenses aren't a cost, but a revenue source.
> Admittedly, there are some offenders with a limited budget to spend
> on private attorneys, but most public defenders that I have dealt
> with are willing to spend whatever is needed to defend a case (and
> they have the resources to outspend most small county prosecutors).
They may be willing, but it doesn't happen unless they're willing to
fund it out of pocket. My court-appointed attorney (not, strictly
speaking, a public defender) was paid a flat $25 per felony, win or
lose. Needless to say, he didn't bother to investigate. And he said
if I were to refuse the plea bargain he would resign and I'd be on my
own at my trial.
I'm told that in some jurisdictions it's even worse, and public
defenders average less than ten minutes per case. More than once a
confused public defender, never having met his client, has gotten an
equally befuddled spectator to plead guilty.
Mr. Otis wrote:
> People who actually know the system, like tmm, are trying to set
> you straight, but as usual you think you're too smart to listen
> to fair-minded people with years of actual courtroom experience.
You don't need to be an aviation engineer or an airline pilot to know
if you've been in an airline crash. And it's little consolation to
crash victims and their families to be lectured about how much smarter
engineers and pilots are.
Trusting authorities is exactly what got me into trouble in the first
place. Never again will I abdicate my own power of reason or my own
conscience. Just because someone has a college degree doesn't mean
they're smarter than me. And even if they really are smarter than me,
that doesn't mean that what they tell me isn't a lie. Universities
impart knowledge and skills, not honesty.
(I got the Nobel-prize winning physicist Kip Thorne to autograph my
copy of his book _Gravitation_. I told him of an error I found in it.
He confirmed that that's a known error, and praised me for noticing it.)
The NTSB is one of the few government departments I have respect for.
Airline crashes in the US are rare because they do their job right.
When prosecutors and police screw up they can simply say that their
victims were guilty and deserved whatever happened to them. It would
be much harder for anyone, no matter how impressive their credentials,
to get away with standing next to the smoking ruins of a crashed plane
and insisting to the mangled corpses that the plane landed safely and
everyone is fine.
When DNA evidence first became available, and thousands of people
were exonerated, many of whom had had appeals judges claim that the
evidence of their guilt was overwhelming, I hoped that something like
the NTSB would be founded to figure out what had gone so horribly
wrong with the criminal justice system, and fix it. After all, it
wasn't just those thousands who had been falsely convicted. In the
vast majority of cases, including mine, there either never was any DNA
evidence, or it wasn't collected, or it wasn't preserved, and there's
no reason to think the error rate in those cases is any lower. So the
actual number of Americans falsely convicted of felonies is certainly
not just in the thousands, but in the millions.
> You live in a poisoned fantasy world where the police, prosecutors
> and judges are criminals and actual criminals are martyred victims.
> If you actually think this, you're out of your mind.
As I've explained to you multiple times, I have never praised
criminals. My main concern is with those falsely accused of
being criminals.
I'm also concerned with excessive or inhumane punishments, even for
actual criminals. And with the criminalization of victimless acts.
And, as you claim to be, I'm also concerned with the actions of actual
criminals. Unlike you, I recognize that a large proportion of those
actual criminals are in positions of power.
If the US had a system anything like we were falsely taught in high
school civics class that it already had, I'd be happy. But we don't,
and I don't see any route to creating it. What we do have, I think
we'd be better off without. I look forward to the time when Americans
thank all the police and prosecutors for their faithful service and
wish them the best of luck in their future endeavors.
What would I have instead? Competing free-market reputation-grading
agencies for non-violent crimes. And, for violent crime, armed
self-defense. Would this work well? No, of course not. Utopia is
not an option. But it would work much better than the system we have
now. Police departments serve largely as employment for violent
criminals, and in any private dispute are as likely as not to take
the wrong side, helping a criminal attack his victim rather than
vice versa. Subletting policing to the KKK, MS-13, or the Mafia
would be no worse than what we have now.
> Only we don't have a punishment culture. It's more accurate to say
> we have a culture that will turn itself into a pretzel to avoid
> consequences
There are about two million people locked up in jail or prison in the
US. Very few nations lock up a greater proportion of their citizens.
If that's not a punishment culture, what is?
> (most recently for running a bank into the ground).
Just because something bad happened doesn't necessarily mean a crime
was committed. If two cars collide, would you insist on locking up
one or both drivers?
> Then don't take the shortcuts and assert your right to trial.
Most innocent people, just like most guilty people, lose at trial.
> The reason this very seldom happens is the one I noted before:
> Defendants don't want trials because they know they're going
> to lose.
Yes. Even the innocent ones know this, if only because their attorney
warns them. The system is broken. Only the very wealthy have much
chance of prevailing at trial.
> This flag-waving just begs the question of what an improvement WOULD BE.
Indeed. We've already had *centuries* of criminal justice reforms.
Some of them helped a little. Many of them made things worse.
> I personally think, and have said many times before, that we should
> select several districts where plea bargaining will be banned for a
> year, then, afterwards, see how the defense bar likes it. My bet is
> that their screeching will be audible on Pluto (and we won't have to
> wait a year for it, either).
Yes, if nothing else changed. That's like muggers deciding that in
several districts they will shoot their victims even if the victims
are willing to hand over their wallets. That's not an improvement.
If you want to silence me, frame me for some serious crime. You know
you can do it. You know you want to. Maybe the JFK assassination. I
was in school at the time, but the school probably doesn't keep daily
attendance records that old. And you can't be certain that I didn't
shoot him, so you can tell yourself that you're doing justice.
Posted by: Keith Lynch | Mar 18, 2023 4:32:06 PM
Keith Lynch --
"What would I have instead? Competing free-market reputation-grading
agencies for non-violent crimes."
So Grandma gets swindled out of her life savings, and the remedy is that the swindler gets a bad reputation grade. Do you even hear yourself?
"And, for violent crime, armed
self-defense. Would this work well? No, of course not. Utopia is
not an option. But it would work much better than the system we have
now. Police departments serve largely as employment for violent
criminals, and in any private dispute are as likely as not to take
the wrong side, helping a criminal attack his victim rather than
vice versa. Subletting policing to the KKK, MS-13, or the Mafia
would be no worse than what we have now."
Like I say, you live in a poisoned fantasy world. And wanting to go back to the Hobbesian vision of every-man-for-himself shows again that you're out of your mind.
"If you want to silence me, frame me for some serious crime. You know
you can do it. You know you want to."
Well, "out of your mind" doesn't quite capture it. Besides, the cops already "framed" Lee Harvey Oswald. Did you miss that? And make no mistake, the last thing I want is to silence you. Having someone as screwy as you align with my more sensible opponents is the gift that keeps on giving.
Posted by: Bill Otis | Mar 18, 2023 11:24:08 PM
