Saturday, December 14, 2013

GateHouse: Plea bargaining unhealthy for justice system

Matthew T. Mangino
GateHouse News Service
December 13, 2013

In the courtroom, and during plea negotiations, many practitioners warn of the “trial penalty.” This widely lamented tool of prosecutors suggests that sentences for people who go to trial are often greater than sentences for similarly situated defendants who plea bargain.

Human Rights Watch recently published a report documenting the use of mandatory minimums and sentence enhancements to negotiate plea bargains. The 126-page report details how prosecutors have successfully used sentencing resources to nearly eliminate trials.

According to Human Rights Watch, based on raw federal sentencing data for 2012, the average sentence for federal drug offenders who pled guilty was five years, four months; for those convicted after trial the average sentence was sixteen years.  For drug defendants convicted of offenses carrying mandatory minimum sentences, those who pled guilty had an average sentence of 82.5 months compared with 215 months for those convicted after trial — a difference of 11 years.

In some jurisdictions, particularly federal court, the gap between sentences has gotten so wide that defense attorneys have coined the phrase “plea bargaining coercion,” to portray clients who plead guilty to avoid the draconian punishment for exercising their right to trial.

Some experts say the process has become so coercive that defendants must look beyond the issue of guilt or innocence and weigh the risk of forcing the government to prove its case and in the process doubling or tripling a potential sentence. In effect, sentence enhancements and mandatory minimum sentencing are driving up the risk of going to trial to the point that guilt or innocence is no longer a part of the equation.

The plea bargain, however unpopular or unseemly, is a much needed tool in the administration of justice. If the plea bargain were to disappear the criminal courts would grind to a halt.  Last year, U.S. Supreme Court Justice Anthony Kennedy said plea bargaining determines "who goes to jail and for how long. It is not some adjunct to the criminal justice system. It is the criminal justice system.”

Why shouldn’t there be a trial penalty? What reasonably prudent defendant, represented by a reasonably competent attorney, would plead guilty if she knew a conviction at trial would bring the same penalty as pleading guilty. A defendant would have nothing to lose by going to trial.

However, at least one judge thinks that prosecutors routinely abuse their authority when using sentence enhancement to negotiate pleas. Judge John Gleeson, of the United States District Court for the Eastern District of New York, recently wrote in a court statement reported by the New York Times, “Prosecutors routinely threaten ultra-harsh, enhanced mandatory sentences that no one — not even the prosecutors themselves — thinks are appropriate.” Gleeson said the tactic “coerces guilty pleas.”

Ninety-seven percent of federal criminal prosecutions are resolved by plea bargain. Judge Gleeson raises another concern, “An excessively high rate of guilty pleas is unhealthy for our justice system.”

Why? The only scrutiny a case may receive is that afforded by a grand jury. Longtime Manhattan District Attorney Robert Morgenthau said that he could get a grand jury to indict a “ham sandwich.”
Gleeson wrote, “Our [grand jury] system permits indictment to be returned on an ex parte presentation consisting entirely of inadmissible evidence.” The burden of proof requires a showing of probable cause not beyond a reasonable doubt, and only with the vote of a majority of the grand jurors not unanimity.

“The notion that defects in the grand jury’s screening function will come out in the wash at trial is sound only if a meaningful percentage of cases go to trial,” wrote Gleeson.

Three percent is not a meaningful amount. As a result the cleansing effective of trial has all but disappeared. Beyond a reasonable doubt, the bedrock of the criminal justice system plays no role in an alarming number of cases.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at and follow him on Twitter at @MatthewTMangino.

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