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June 7, 2023
"Plea Bargaining Abolitionism: A History"
The title of this post is the title of this new piece authored by William Ortman now available via SSRN. Here is its abstract:
How does a tragedy on the scale of mass incarceration happen? Scholarship has focused on the carceral appetite of politicians, criminal justice practitioners, and the public. R ightly so, but mass incarceration took more. On paper, American law has a built-in check on carceral appetites: a labor-intensive system of criminal adjudication via trials. Yet as mass incarceration wreaked havoc in the 1980s and beyond, that system barely registered. It had been supplanted, over the previous century, by a form of adjudication far better suited to punitive fervor. Plea bargaining enabled mass incarceration. If only Americans had been warned about plea bargaining before it was too late, maybe the catastrophe could have been avoided.
Except that they — we — were warned. In the 1970s, an unlikely assortment of academics, prosecutors, judges, and even a Nixon-administration crime commission sought to rally the country to abolish plea bargaining. While they did not speak in unison, they were united by a conviction that the system of plea bargaining that had matured in mid-century American courts was fundamentally unjust.
Plea bargaining abolitionists in the 1970s tried to tell us that something basic had gone wrong with the criminal process. Perhaps predictably, the broader legal profession didn’t heed the warning. When prosecutors and judges attempted to formally ban plea bargaining — as they did in Alaska, El Paso, and elsewhere — other prosecutors and judges, joined by defense lawyers, found ways to circumvent them. And when scholars and politicians decried the injustice of plea bargaining, they were told to be more realistic.
June 7, 2023 at 10:04 AM | Permalink
Comments
I think we incarcerate far too many people far too long. But even by my standards, the purple prose of this abstract is too much to bear. Tragedy?? Catastrophe????
Posted by: Marc Shepherd | Jun 7, 2023 2:36:44 PM
Yes, I think it's a tragedy and catastrophe for literally millions of Americans to be sentenced to years in prison and given permanent felony records without getting a trial first. Plea bargains are egalitarianism run amok, by treating innocent and guilty exactly alike though no two groups should be treated more differently. Plea bargains are inherently coercive, and are often also deceptive.
That's not to say that simply abolishing plea bargains and making no other changes would leave us better off. It's essential that every accused person get, not just a trial, but a fair trial, in which the defense has resources that aren't vastly less than those of the prosecution, and in which "beyond reasonable doubt" isn't just an empty slogan.
Posted by: Keith Lynch | Jun 7, 2023 5:30:27 PM
More than once, I have proposed an experiment where, over several jurisdictions, plea bargaining would be banned for a year. After the year elapsed, judges, prosecutors, defense lawyers, defendants and crime victims would be given a chance to say whether they thought the ban should be continued or should end. Thus far I've had no takers. Goodness gracious.
Stop complaining and act. If you want to end it, make your case and go end it. For now, if you think it's unjust, don't do it. I can tell you from decades of experience that anyone who demands a trial gets it.
Posted by: Bill Otis | Jun 7, 2023 6:47:41 PM
Mr. Otis, did you skip reading my second paragraph, the one about giving a falsely accused person a fighting chance at prevailing at trial?
If you were falsely accused, would you insist on a trial? Even if you knew you would almost certainly be convicted and get a life sentence? Or are you so delusional that you could never know anything of the sort until it happened to you?
Posted by: Keith Lynch | Jun 9, 2023 12:20:07 AM
"Plea bargains are inherently coercive, and are often also deceptive."
I have not seen anything on this generally defendant-friendly website to suggest that plea bargains are "often" deceptive.
I have also seen very few examples of wrongly-convicted defendants — this does happen (occasionally) and of course never should. But in general, I agree with Bill Otis that the overwhelming majority of defendants who plead guilty ARE, in fact, guilty — and usually of more dastardly deeds than they pleaded to.
I am not exactly sure what abolition of plea bargains would even look like. Do you favor a system where every defendant gets the book thrown at him and can do nothing to ameliorate his fate, other than go to trial and hope the prosecution messes up?
Posted by: Marc Shepherd | Jun 9, 2023 8:00:06 AM
Keith Lynch,
Give the citation to a single case I handled where I denied the defendant a fair trial.
Posted by: Bill Otis | Jun 9, 2023 10:00:42 PM
Marc Shepherd wrote:
> I have not seen anything on this generally defendant-friendly
> website to suggest that plea bargains are "often" deceptive.
They're always coercive. They're not deceptive if the defendant is
street-wise and has an honest attorney. But plenty of defendants are
gullible and plenty of attorneys, especially public defenders, are
dishonest.
In my case, for instance, I made it clear to my court-appointed
attorney that I wouldn't plead guilty to a crime I didn't commit.
He told me that the plea bargain he worked out with the prosecutor
dropped nearly all the charges, that I was "technically guilty" --
he didn't say of what (I assumed it was either unknowing possession
of stolen property or failure to supervise my 17-year-old roommate),
that the judge knew I hadn't done anything seriously wrong and would
almost certainly sentence me to probation or time served, that this
was how to "take responsibility" and "put this behind me," that if
I were to insist on a trial I would lose and get a lengthy sentence,
and that I would be on my own during a trial as he would withdraw
as my attorney, as we would then have no "meeting of minds." He
implied that this case was no big deal, and was something that
happened to almost everyone eventually.
I asked him if there was a way of pleading guilty while maintaining my
innocence, perhaps "nolo contendre," as Spiro Agnew had recently done.
(Yes, my case was a while ago.) He said there was not.
I asked if the plea was in writing, and if so whether I'd have a
chance to read it ahead of time. He said it was, and that I would.
I later learned that every part of that was a lie, except for the
part about most of the charges being dropped, and about it being in
writing. I didn't get a chance to read it before signing the large
stack of papers in court while the impatient judge glared down at me.
I also later learned that neither the police nor my attorney had
investigated at all. The cops didn't even show up to the crime scene,
but just took a report over the phone. My attorney didn't even do
that much.
Also, I wasn't completely sure that I wasn't guilty, though I had no
memory of the crime, which would have been profoundly out of character
for me. The cops had me half convinced that I was criminally insane
for not remembering it. During my interrogation the police insisted
they had overwhelming evidence of my guilt. I had been raised to
trust police. I now know that this was the infamous Reid technique,
otherwise known as lying and gaslighting.
For years after I learned better, I thought that this was freak
occurrence, and that I would soon read headlines about corruption in
Arlington County, and that lots of wrongful convictions, including
mine, would be set aside, and lots of cops, prosecutors, judges, and
court-appointed lawyers would be going to prison.
It was more than a decade before I gradually came to realize that it
was the whole system which was so profoundly broken and corrupt that
we'd probably be better off without it.
Another example of a deceptive plea bargain is my friend Bill Wells,
who, decades later, was falsely accused of having sex with a minor.
He agreed to plead guilty to kidnapping so that he wouldn't have to
register as a sex offender. After serving eight years in federal
prison, he was told that he *would* have to register as a sex
offender. And would have to undergo sex offender "treatment" for
which he would be required to confess to various sex crimes, which
he could then be prosecuted for. If he refused to confess, he would
flunk treatment, and be locked up for life in a "hospital." (He took
a third course; he escaped and has been a fugitive for the past six
years.)
> I have also seen very few examples of wrongly-convicted defendants
> -- this does happen (occasionally) and of course never should.
I believe it's extremely common. The methods used to convict people
are extremely good at convicting the innocent.
> But in general, I agree with Bill Otis that the overwhelming
> -- and usually of more dastardly deeds than they pleaded to.
I was able to convince a former prosecutor I knew socially of my
innocence of the burglary I pled guilty to. But he said that since
the average burglar commits a hundred burglaries before he's caught,
I'm probably guilty of many other burglaries. I don't know how to
begin to argue with such "logic."
> I am not exactly sure what abolition of plea bargains would even
> look like. Do you favor a system where every defendant gets the
> book thrown at him and can do nothing to ameliorate his fate, other
> than go to trial and hope the prosecution messes up?
I'd like a system like the one I was taught in school that we had.
One in which every accused person gets a fair trial, and will not
be convicted unless he is proven guilty beyond reasonable doubt.
(Also, victimless crimes should all be legalized.)
Why would they throw the book at every defendant if not to coerce a
plea bargain? Prisons are already at capacity, so it's not as if they
could lock up more people for longer even if they wanted to. And I'm
perfectly fine with guilty people getting sentences proportionate to
their crimes. I recently heard about someone responsible for billions
of illegal telemarketing calls, meaning he is responsible for wasting
*centuries* of other people's lives without their consent. If there's
no doubt of his guilt, I'd be fine with him being locked up for life,
*centuries* of other people's lives without their consent. If there's
no doubt of his guilt, I'd be fine with him being locked up for life,
or even executed.
If a just government-run system is not possible, or there's no way
to get there from where we are, the next best thing isn't the system
we have now, but a set of competing free-market reputation-rating
agencies, something like today's credit reporting agencies. And
for violent crimes, armed self-defense. Would this work well? No.
Utopia is not an option. But it would work much better than what we
have now.
Posted by: Keith Lynch | Jun 10, 2023 12:51:24 PM
Keith Lynch --
Correct. There is no case in which, during my 25 year career with the USAO and DOJ, I denied any defendant a fair trial, through plea bargaining or any other means. So you can put that accusation to rest.
Posted by: Bill Otis | Jun 16, 2023 7:35:09 PM
Mr. Otis, you wrote:
There is no case in which, during my 25 year career with the
> USAO and DOJ, I denied any defendant a fair trial, through plea
> bargaining or any other means. So you can put that accusation to
> rest.
It's not just about you. It's about the system you were a small part
of. People bear responsibility for the actions of organizations that
they're a part of, especially if they're aware of those actions and
don't resign or work to stop them.
And it's not just about me. It's about the millions of Americans who
have been falsely convicted of serious crimes.
I know little about you. (And even less about your wife. In another
recent thread, you criticized me for not defending your wife when
someone else criticized her, implying that my silence meant I agreed
with her critic, and you also implied that others' silence in response
to my criticism of the criminal justice system meant that they
disagreed with me. Classic prosecutor "logic.")
And you know little about me. Mainly because you refuse to look in the
places that would confirm what I say about my case. Obviously you have
no obligation to do that, but then I don't think it's sporting for you
to keep criticizing me. For every hour you spend publicly claiming I'm a
liar and a criminal, you ought to spend at least a minute researching
whether I'm either of those things.
The methods your beloved system uses to convict people include:
* The Reid Technique. When used on people stupid enough to trust the
police, this gaslighting method can get a confession from about a
third of guilty people about about two thirds of innocent people, who
are left believing they're criminally insane as they have no memory of
the crime the cops claim they have "overwhelming proof" they committed.
* Coercive plea bargains. Plead guilty and get a few years, or go to
trial and unless you can afford a million-dollar defense, get life
without the possibility of parole.
* Prisoner's Dilemma. Falsely accuse someone else to get your charges
reduced or eliminated, or risk that someone else will do this to you
first. This was already ancient when used in the Salem Witch Trials.
(Nobody who confessed to being a witch and testified against others
was executed. What would have have done?)
* Reverse Prisoner's Dilemma. Nice wife (or parent, or adult child)
you have there. It would be a shame if something happened to them.
Something like being charged for your crime if you don't confess.
* Prosecutors tampering with defense witnesses, threatening to charge
them with perjury if they provide you with an alibi.
* Bogus Forensic Science. Not a crackpot theory of mine, but the
conclusion of The President's Council of Advisors on Science and
Technology's recent report, "Forensic Science in Criminal Courts:
Ensuring Scientific Validity of Feature-Comparison Methods."
* "Dry labbing." Forensic technicians are often rewarded for speed,
rewarded for convictions, given an impossible case load, and told
what result prosecutors want, creating a massive conflict of interest.
Ideally, they would never be told what result either side wants, and
would often be given known samples as a test of their accuracy.
* Hiding exculpatory evidence. This is often done with expiring plea
bargains. "Today only, plead guilty and you get five years. Tomorrow
it will go up to twenty." You plead guilty, and a week later learn
that the police had video showing someone else commit the crime.
Congratulations, you still have to serve the full five years, and
will forever have a felony record.
* It is very difficult, often impossible, to reverse even the most
obvious miscarriage of justice.
I could go on and on. The system is not designed to seek truth or
justice, but to seek and maintain convictions. It completely lacks
both the religious/humanist virtue of humility and the scientific
virtue of falsifiability. For these they substitute the bogus virtues
of "finality" and "closure."
Whatever you may or may not have done personally, you chose to be a
part of that. If it makes sense to charge someone with felony murder
because their fellow bank robber shot someone, then it makes sense
to charge you with all the crimes of the criminal justice system.
Posted by: Keith Lynch | Jun 19, 2023 12:43:53 PM
