(Cross-Posted from Our Salon.com)
When I first started practicing criminal law, one of the oddest things I encountered and the thing that took the longest time getting used to, was the institution of "plea bargaining." I had taken classes on plea bargaining while in law school, but here, we only studied caselaw governing the principles and rules concerning its proper and improper application. For example, when could a plea bargain be reversed on appeal? Why should an accused person be advised of their rights before accepting a guilty plea? Should they be allowed to waive their right to appeal before accepting a guilty plea? Should they be allowed to retract their guilty plea if the judge imposes a sentence that is much worse than the sentence previously agreed-to by the prosecutor and defense attorney pursuant to prior plea-negotiations?
The conceptual and issue-based studies of plea bargaining that I engaged in while in law school were all well and good, but nothing (aside from my studies of game theory and poker) really prepared me for the world of plea bargaining as it was practiced in both the upper and lower level criminal courts in the northeastern state where I reside.
Plea bargaining gets a bad-rap by many conservatives, is admired by judicial realists, is barely understood by the vast majority of liberals, and is strongly disliked by Libertarians as well as those on the Left (there's a difference between moderate liberals and the Left). As such, I believe that true reform on this issue can come about through some sort of a progressive-libertarian coalition.
During my first 6 months practicing criminal and traffic law, plea bargains were used in 99% of all my cases. When I mentioned this to conservative friends and/or family members, they were enraged. In their minds, plea bargains enabled guilty people to go free. Conservatives, it seems, envision a world where courts lack the resources to adequately punish "bad people." My relatives thought that the prosecutors were making deals with defense attorneys so as to make the bad cases "go away" and thus save money for the state. They blamed this lack of money on the fact that prosecutors, judges and public defenders allegedly made "too much money," and prevented "real justice from being done."
In this paranoid, ignorant, conservative worldview, child molesters, murderers, drug dealers, terrorists and a whole motley crew of anti-social deviants were being arrested, serving minimal time and being re-released into the arms of an innocent and unwitting public, due to the perceived "cheapness" of the court system, not to mention the alleged "laziness" of the prosecutors. When confronted by these insane allegations, I would play "devil's advocate," and ask my cousins and friends what they would do, if they had the power to impact the situation. They almost always replied that they would (a) appoint no-nonsense prosecutors who would "get tough on crime, and never let criminals out of jail, and (b) give the police extraordinary, extra-legal abilities to punish wrongdoers, "Batman style" on the streets, and thereby avoid the technicalities of the justice system altogether.
Here, in the minds of these conservatives, the only true protectors of the public are the "noble" police officers, who should presumably be able to use whatever means they can in order to keep "evildoers" away in perpetuity. To do this, the conservatives feel that the police need the ability to utilize gratuitous violence, the ability to circumvent the Constitution (which many of my conservative cousins think is silly document that has nothing to do with civil liberty), the ability to lie under oath, plant evidence, or even, as mentioned above, act like a vigilante and perform the role of judge, jury and executioner upon America's impoverished streets. Granted, many of my cousins are members of the Tea Party, but they reside in areas as diverse as Queens, NY and Arizona, so they run the gamut of conservative, white, working class consciousness.
Practicing criminal law in the bowels of dilapidated, working-class and lumpen-proletariat Rustbelt cities in my adopted northeastern home-state (I will not mention the name), not to mention in a plethora of tiny Bourgeois suburban townships and municipalities to boot, I learned another aspect of plea bargaining. Oftentimes, police officers overcharge defendants. Sometimes, this is done because the cop is just over-eager. On the other hand, it also works so as to minimize the chances that the bigger, more substantive charge can be successfully challenged. Sometimes they just do it, hoping to throw as many darts at the board as possible, hoping something will stick.
Now, many police officers are good and decent people. I have met countless good cops. But many police departments do have a culture of over-charging defendants, sometimes even with statutes that probably weren't even violated. Most of the literature I have read states that police officers are promoted, and that their careers are advanced, based on their conviction rate, i.e., the percentage of their arrests that successfully result in a conviction. Over time, some police seem to have realized, I think, that in order to maximize these odds, you need to issue a lot of citations and hope that at least some of them will stick.
But again, as I said above, this also has the unintended effect of ensuring, at least among a large portion of cases, that only the minor charges are dismissed, and that the bigger charges stick. Here, the attorney will go to court, get the minor charges dismissed (because often, there is no real basis for the Defendant to be charged with the infraction, or the charge is so petty it seems silly---like claiming that a cardboard pine tree air freshener, dangling from a rear view mirror, obstructed the driver's vision), and have him plea guilty to the substantive charge. This makes the Defense attorney happy (he got paid, and got 5 or 6 charges dismissed, so he can't be accused of malpractice), the police officer is happy (he got his conviction, and the prosecutor is happy (there was a conviction, a guilty party was penalized and the municipality avoided a costly trial). Everybody wins, except, it seems, the Defendant.
This is the dance that I see played before my eyes with great frequency.
One of the most horrible things I ever heard was told to me in a low-level courthouse. I was sitting in the prosecutor's office waiting for him to get out of court. It was just me and a fellow defense attorney, who was also, it turned out, the former mayor of the town. This attorney told me that the police officers were increasing their rate of traffic stops, because the current mayor ordered them to, due to fiscal challenges. I told the defense attorney/former mayor that I thought that was unethical and that I didn't believe it. He told me he was the former Mayor and that it was absolutely true and more common than most people believe.
He said that the new mayor told the officers that if they didn't increase ticketing revenue by like 15%-20%, they would have to start laying-off police officers. I thought this was outrageous. I still don't know if it is true or not. Perhaps this guy was just a politician and was trying to start rumors in an attempt to strike a political blow at his former political opponent. I don't know. But if this is true, if this sort of thing happens, it needs to be investigated, because it means that the police would have a conflict-of-interest in terms of their law enforcement activities. I really think that the Supreme Court or the American Bar Association should investigate this sort of thing to make sure major wrong-doing isn't being done. It really worries me.
Now, when taken in the context of what I mentioned above, namely, that some officers or police departments have a policy of routinely overcharging defendants, and in ever increasing volume, things start to take on a new light, and it is here where defense attorneys frequently get into very weird situations.
For example, I was once handling a municipal court manner in an affluent suburban town, and my client was charged with leaving the scene of an accident. He had allegedly crashed into a stop sign at a private, exclusive housing development and fled. The cameras were down and the gate was open, so there was no way to know who it was, and whether it was him. I got the case dismissed, but the interesting thing was that (a) the officer used a highly suspect method of issuing him the tickets [he had the same type of car as the alleged perpetrator (albeit a slightly different color, which he left out of the police reports), his license plate number had 3 similar numbers, he had a prior felony conviction (which in of itself should be meaningless) and the fact that he lived at this apartment complex 10 years previously. In addition to all the usual charges, such as leaving the scene of the accident, my client was also charged with crashing into farm equipment on agricultural property. I found this to be odd, because the alleged event was nowhere near a farm. I got the chance to talk to the officer about this (I went to court 10 times on this case, and spoke to the officer 3 times) and he said that he normally uses this statute when people crash into things, and that the whole department does and that if I challenge it, I will lose and my client will go to jail. He was very jock-like, aggressive and belligerent and tried to bully me, which doesn't work. I asked other defense attorneys the next day, and they said the department does, in fact, try to do this, but that it is a bluff, and they always fold when you call them on it.
Now, this raises a bunch of interesting questions in terms of what kind of information access police officers have, and why, as well as why they would utilize said information for the purpose of pressing charges. The officer and prosecutor played sort of a good-cop, bad cop game with me. The prosecutor was stern, but objective. He would leave the room and the cop would come in. The cop would tell me my client was guilty, based on his prior record and would go to jail and that I would lose. And that if I fought it, he would go to jail even longer. He said, "look at what I found from his record. Are you trying to tell me this kid is innocent? He's clearly guilty. I can tell just by looking at him. All you need to do is look at his record and you'll know he's guilty." I kid you not. A police officer told me this. Now, I hope you all know that the rules of evidence and the US Constitution expressly forbid convicting people of new crimes, based on their conviction of a past crime, correct? Well, apparently this law was lost on the police officer I was talking to that day.
Now, the prosecutor was a decent guy and I doubt he knew what the cop was doing. Once I mentioned it to him, the police officer toned it down, but I could see in his eyes that he was pissed at me for "going over his head." The officer clearly didn't see the prosecutor as his superior and didn't relish taking orders from him. The municipal prosecutor was in a tough spot, too. He needs to be fair and impartial and has much higher ethical obligations and duties than a defense attorney (they have to disclose evidence that is exculpatory for the defense, they can't prosecute a man they know is innocent, etc...), believe it or not. But at the same time, he still needs to represent the state's interests. So, I am wholly sympathetic to prosecutors. They have a very tough job.
That said, I realized the cop was trying to use the prior conviction as a scare tactic, a leveraging tool. He wanted us to think that if we didn't plea guilty to some juicy crimes, that if we took the case to trial, the client would not only be found guilty but that he would have a big-time jail sentence, because of his prior record. The thing is, the prior record would have only been admissible had he testified in his own behalf. Normally, generally speaking, prior records can't usually be admitted. All law school graduates know this. But clients don't know this, and the other side sometimes tries to intimidate them into accepting a plea, by using scare tactics.
Over time, I also realized that while most of the tickets and citations issued by the police were legitimate, a decent portion were nonetheless questionable. Here, I would see countless defendants hire a lawyer, and this lawyer would go to court and talk to the prosecutor and a plea-bargain would be worked-out. Most of the petty, nonsense charges would be dismissed and the client would only plea guilty to the major charge. I started to wonder, why not just charge the guy with the serious charge to begin with? The defendants were dropping like $2,000 on a lawyer who would go to court to plea-bargain, and would often get dismissed those charges that were really bullshit to begin with, charges that the state knew they would have no way of getting a charge on. You frequently see a guy stopped for speeding, or driving while under the influence of heroin, or something like that. They get hit with like 10 or 12 tickets. They go to court and the attorney gets most of the charges, like failure to wear a seat belt, obstructed license plates, obstructed rear view mirror, failure to use signals correctly, dismissed, but the major charge, the big-time speeding or DWI violation---these are pled out.
And yet, this is what's amazing. One can fight a DWI and/or speeding charge in a trial. Radar and Laser devices, which the police use to measure speed, have flaws. They need to be calibrated correctly. They can be damaged. They can be used incorrectly. The same thing with a DWI test. The machines can be used improperly. The machine itself can be malfunctioning. The person can have a medical condition that causes them to fail the machine-test, and/or a field sobriety test. But the thing is, many lawyers simply don't practice their profession in this manner. They just go to court, get the minor charges dismissed, and plea the guy out to the biggest charges. They spend maybe 1 or 2 hours in court and then go home. I never liked this method of practice and I find it to be highly questionable.
Things are slightly different with the higher level felonies. Here, plea bargains aren't as informal as in the lower level courts. But you often see attorneys go to court with clients who are charged with a large number of criminal offenses. Now, many attorneys are actually very good and they do fight for their clients. Sometimes, a client is in a horrible situation and it behooves them to take a generous plea bargain. But the thing is, sometimes its not. And furthermore, you can get a better offer from a prosecutor if he/she knows that the defense attorney is preparing for trial and is willing and able to take it to trial on behalf of the client.
But the sad fact is that a large number of higher-level criminal defense attorneys don't do this. Some of them have a volume-based practice and they spend their days in a single courtroom representing maybe 5 or 6 different clients, trying their hardest to have each of them take a plea-deal from the prosecutor. Again, not all criminal defense attorneys do this. Most of them do not. But a sizable portion of them do, and they give the rest of us a bad name.
Now, the court system seems to encourage plea bargaining. It is seen as an efficient method of resolving criminal disputes. One legal commentator has said that when a case goes to trial, that this represents a "failure or breakdown" of the criminal justice system. I think this is total nonsense, but I think it depends on one's perspective.
From what I have seen, the War on Drugs and the massive increase in codified crimes, with each passing year, as well as the resulting arrest numbers, are totally inundating the court system with ever increasing numbers of criminal cases. In fact, I think that the entire system of American Justice and the Constitution itself is threatened by this state of affairs, but that's a discussion for a different day.
Many scholars and legal commentators have stated that mass plea bargaining is encouraged for specifically this reason---if every case went to trial, like we see on TV, the system would become bankrupt. The fact of the matter is that more than 95% of all criminal cases in America today are resolved by way of plea-bargain (defendants confessing their guilt to a portion of the crimes, or a reduced charge of the myriad of charges they are charged with), rather than going to trial. Prosecutors, I think, try to pressure Defendants and criminal defense attorneys into accepting plea deals as much as possible. When I go to court, and I drag a case out, because I strongly believe in my client's cause, Prosecutor's have made offhanded comments to me, like "wow. your practice loses money when you're away from the office, huh? I bet you want this case to end so you can go back to billing your hourly rates." And similar such statements.
Prosecutors know that private attorneys can lose money on a drawn-out case. But such things never matter to me, because my wife is independently wealthy. All that matters to me is the truth and the facts of my client's case. This has given me an advantage in my dealings with prosecutors.
I also think that Prosecutors stand to lose if they allow a case to drag-on, too. They have a certain number of cases they need to dispose of, in a given day. If a case doesn't plea-out, and keeps going on, the young prosecutor looks bad to his/her superiors. They increase the pressure, and the prosecutor, in turn, gets tougher, telling the defense attorney that things will be horrible for the client if they don't plea-out. This may be. Ultimately, its up to the client whether they want to take a plea deal. A judge can very likely impose a more harsh sentence upon a defendant, if he chooses to ignore a generous plea offer from a prosecutor, and chooses to "waste the court's time" by taking the case to trial, instead.
And yet, I strongly believe that plea bargaining increases conviction rates for the prosecution, as well as for the police department. Its much harder to prove somebody's guilty in a trial, when you have to prove "guilt beyond a reasonable doubt," than it is when you confess to a crime, and then guilt is a 100% certainty, because it is admitted on the record. This is the essential truth that my conservative cousin and friends fail to recognize. Its not liberals that favor plea bargaining. Indeed, most liberals would much rather we return to the old fashioned days of "To Kill a Mockingbird" style trials, with all the inherent justice-dramas for peace and equity. But no, the system puts a premium on quick, assembly line confessions and the lowered sentences that sometimes come about as a result of these confessions. That said, is the lower sentence that much of a reward, one wonders, if the state would have had a really difficult time of proving guilt to begin with?
The thing is, you really don't know. Its a game of incomplete information. The state shows you their cards in discovery. You have those cards, you show them to your client, and you also have the cards your client shows you. The state can sometimes bluff and tell you that you will lose unless you fold. Oftentimes, its wise to fold. Because let's face it, in terms of criminal law, the state is often in the same position as the House in a casino game----there is a higher chance that a repeat criminal offender may objectively be guilty of something than a non-repeat offender. But on the other hand, the state's hand may not be as strong as they think. Your hand may actually be stronger. And you need to know when your hand is stronger, relative to the prosecution, and be able to make this determination, despite the incomplete information that pervades the strategic encounter.
Furthermore, some scholars say that arrest rates and conviction rates are gradually increasing. Others say that the percentage of arrests and convictions based on bad evidence is also increasing, due to the prevalence of plea bargaining. The fact is, why should a police officer be over-cautious about having super accurate evidence, if he knows there is already a pretty high chance that the low-income, minority defendant will plead-guilty, pursuant to the plea-bargaining regime currently in place?
To use a poker metaphor, this means that there is an increasing rate of House wins, based on bad hands. It doesn't take a genius to figure out that this means there is a higher burden on defense attorneys today, than ever before, to adequately investigate the facts and the law. My two most recent cases were amazing wins, royal flushes, so to speak, because I knew that the police departments I was up against routinely try to win with crap hands and brazen bluffs.
When in doubt, I tend to call the bluff of the prosecutor and make them show their hand. If they really have a stronger hand, they should show me. If I think they have nothing, I will tell my client, and let him make the option as to whether or not he wants to plea guilty, or fight it. The decision is ultimately his. But the fact is, at the end of the day, I will be able to sleep at night. I will know that I represented the facts and the law, as well as the strategic situation to my client in the best way possible. That I didn't sell him down the river, the first chance I got, because I wanted to make as much money as possible, in as short a time as possible, by having him plea guilty on the first or second appearance without so much as reviewing the state's discovery.
That so many criminal defense attorneys continue to do this is not only an outrage, its an embarrassment and its something the bar associations should do more to fight-against.
I frequently annoyed my classmates in those law school Plea Bargaining classes I mentioned above. Many of them just wanted to become lawyers so they could make a lot of money. I wanted to become a lawyer so I could help people. They wanted to "study for the test" and they got annoyed when I asked the higher-level questions, like "is it Constitutional for people to bargain away their unalienable rights?"
The professor thought it was a good question. None of the other students, future attorneys, cared or even seemed to give a damn. I didn't care. I kept talking and I told my professor that I distinctly remembered that Thomas Jefferson wrote, in the Declaration of Independence, that men are endowed by their Creator (God) with certain UNALIENABLE RIGHTS, among them LIFE, LIBERTY and the PURSUIT OF HAPPINESS. I took, and continue to take these words very seriously. They are natural rights, holy rights, if you will.
That said, in terms of rights, what exactly does "unalienable" mean? We say it all the time, but few of us ever take the time to think about it. The word "unalienable" means that something cannot be given away, bargained away or traded away. It means that it is an inherent part of your very being. It is essential to you, as a natural functioning being.
When we say that a right is "unalienable" we mean that when one is deprived of such a right, one is rendered incapacitated as a human being and citizen in the democratic process in a seriously profound and fundamental way.
Is the right to a jury trial an "unalienable right?"
Is the right to have a judge hear the facts of your case an "unalienable right?"
If these things are unalienable rights, then why do we punish citizens who wish to exercise them? Are they being punished if we maximize their sentences if they demand a trial, if they ask that a judge hear all the facts of their case because they honestly and truly believe that they have a genuine defense? Is it wrong for a citizen of a democratic republic to have such a desire, especially when such a desire is fully enshrined in our principal foundational document?
If the right to a trial and the right to have a judge hear the facts of your case are, indeed, unalienable rights, how do we permit Americans to trade them away in exchange for lower sentences, pursuant to the "plea bargaining" regimes that currently pervade our republic?
We overthrew a lawful government in 1776, because we believed it violated these rights. We had a revolution and spilled blood for these rights. We have fought countless wars over the past 200 years, almost all of them for the sole purpose of preserving these unalienable rights. We talk so much and fight so much over these rights, they must certainly be important, right? They are the foundational principles upon which our country is based. They are the ideological bedrock principles upon which our system of government derives its legitimacy. Without these philosophical and ideological concepts, and without consistent adherence to such foundational principles, no government can long maintain the consent of those they govern. Because, lets face it---democratic government absolutely requires the consent of the people. There are some police officers who may disagree with this, but I firmly believe that without popular assent, no system of laws (if seen to be unjust) can long prevail.
Do we need to change our laws? Must we exchange the adversarial system for a Continental style inquisitorial system, where the judges are required to hear all the facts of a case, before they give a sentence, regardless of whether a defendant enters a guilty plea?
What I do know is that a judge is a far more trustworthy and accountable guarantor of the rights of criminal defendants than a prosecutor, especially a prosecutor in an adversarial system.
The undeniable fact is that our current plea-bargain system took a traditional adversarial system, where justice and fact-finding was evenly balanced between the prosecution and the defense, and it gave disproportionate power to the state, which continues to act in an adversarial manner and in a way that prevents crucial information from reaching the eyes of the judge. Traditionally, it was the role of the defense attorney to present this information to the Judge or jury. But plea bargaining, and the confessions it coerces (and I do believe it encourages a soft form of self-interested coercion), prevents the defense attorney from exercising his traditional function in the court, thus preventing a high volume of crucial, exculpatory facts from ever reaching the eyes and ears of the court. This is because, in the plea-bargaining scheme, the defense attorney makes his case to the prosecutor, who, in turn, decides if he likes it or not and what kind of deal he will give the defense. Here, the prosecutor, rather than the judge, becomes the informational gatekeeper. This is something that I find to be absolutely unacceptable.
Either we balance the scales of justice by reforming the adversarial system, or we do away with it entirely by adopting the continental-style inquisitorial system, which will give all the power to the judges. This is something the Founders did not desire, but if the current scheme of things continues, I see it as the only viable alternative, if we are to remain true to the more important, overriding principles of justice, fairness and Constitutional rights.
The American legal system is in desperate need of repair. There is a place in our system for plea bargaining. If the situation requires it, a Defendant should be able to negotiate a lower sentence or charge, in exchange for a guilty plea, but it should only be utilized after a proper examination of the law and facts of a given case. This is not happening, though, for the reasons I mentioned above and many innocent people, I believe, are being coerced into taking guilty pleas, because they think they will receive a harsher sentence if they choose to exercise their God-given Constitutional right to a trial.
This constitutes a major violation of the principles underlying our Constitution, I believe, and its something that our citizenry must address. Constitutional violations that impact the criminals of today are invariably visited upon the innocent of tomorrow. The precedents that are established in prosecuting a drug offender can just as easily be used against a political dissident or protestor tomorrow. And this is my great fear.
Justice must not conform to the law. The law must conform to justice.
And if the law does not conform to the principles of justice then we must change the law, through the democratic process so that the law more clearly and precisely reflects the natural law and will of the people. This is the essence of democracy.
Democracy doesn't end with the Executive and Legislative branches of government. The voice of the people isn't muted in the halls of the judiciary. We have jury trials for a reason--the people, ultimately, have the ability to decide questions of fact, in countless cases. They even have the power of juror nullification. The laws that Judges apply, the statutes that prosecutors enforce---all of these are manifestations of the popular will.
And if the popular will, through new legislation, changes these laws, then I feel that the principles that underlay our Constitution can be salvaged and given a new breath of freedom---that Justice can once again be achieved---just as the Founding Fathers intended.
PBS has an excellent television program named Frontline. A few years back they had a very good show that discussed plea bargaining, and what it was doing to the American Justice System. The PBS website has broken this program into four small segments, which you can view online. They also contain a number of online interviews with leading legal experts and academics regarding this recent development in American law.
I will cut/paste links to this episode, as well as some important academic/scholarly articles from both sides of the political spectrum that discuss plea bargaining and what it means for the American Justice System.
A. FRONTLINE PBS SPECIAL
B. PBS INTERVIEWS WITH LEADING SCHOLARS ON PLEA BARGAINING (also from Frontline)
C. IMPORTANT ACADEMIC ARTICLES REGARDING PLEA BARGAINING (from Frontline website)
1. The Case Against Plea Bargaining, by Timothy Lynch of the Libertarian think tank, the Cato Institute.
2. "Personal Failure, Institutional Failure and the Sixth Amendment," by Albert Alschuler. From New York University Review of Law and Social Change, Volume XIV, Number 1, 1986, pages 149-156.
3. "Plea Bargaining Outside the Shadow of Trial," by Stephanos Bibas, Harvard Law Review. June 2004.