This is the age of the plea bargain

This is the age of the plea bargain, writes Emily Yoffe in The Atlantic. here are excepts from her exceptional recent column.
Most people adjudicated in the criminal-justice system today waive the right to a trial and the host of protections that go along with one, including the right to appeal. Instead, they plead guilty. The vast majority of felony convictions are now the result of plea bargains—some 94 percent at the state level, and some 97 percent at the federal level. Estimates for misdemeanor convictions run even higher. These are astonishing statistics, and they reveal a stark new truth about the American criminal-justice system: Very few cases go to trial. Supreme Court Justice Anthony Kennedy acknowledged this reality in 2012, writing for the majority in Missouri v. Frye, a case that helped establish the right to competent counsel for defendants who are offered a plea bargain. Quoting a law-review article, Kennedy wrote, “ ‘Horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.’ ”

Ideally, plea bargains work like this: Defendants for whom there is clear evidence of guilt accept responsibility for their actions; in exchange, they get leniency. A time-consuming and costly trial is avoided, and everybody benefits. But in recent decades, American legislators have criminalized so many behaviors that police are arresting millions of people annually—almost 11 million in 2015, the most recent year for which figures are available. Taking to trial even a significant proportion of those who are charged would grind proceedings to a halt. According to Stephanos Bibas, a professor of law and criminology at the University of Pennsylvania Law School, the criminal-justice system has become a “capacious, onerous machinery that sweeps everyone in,” and plea bargains, with their swift finality, are what keep that machinery running smoothly.

Because of plea bargains, the system can quickly handle the criminal cases of millions of Americans each year, involving everything from petty violations to violent crimes. But plea bargains make it easy for prosecutors to convict defendants who may not be guilty, who don’t present a danger to society, or whose “crime” may primarily be a matter of suffering from poverty, mental illness, or addiction. And plea bargains are intrinsically tied up with race, of course, especially in our era of mass incarceration.

As prosecutors have accumulated power in recent decades, judges and public defenders have lost it. To induce defendants to plead, prosecutors often threaten “the trial penalty”: They make it known that defendants will face more-serious charges and harsher sentences if they take their case to court and are convicted. About 80 percent of defendants are eligible for court-appointed attorneys, including overworked public defenders who don’t have the time or resources to even consider bringing more than a tiny fraction of these cases to trial. The result, one frustrated Missouri public defender complained a decade ago, is a style of defense that is nothing more than “meet ’em and greet ’em and plead ’em.”

According to the Prison Policy Initiative, 630,000 people are in jail on any given day, and 443,000 of them—70 percent—are in pretrial detention. Many of these defendants are facing minor charges that would not mandate further incarceration, but they lack the resources to make bail and secure their freedom. Some therefore feel compelled to take whatever deal the prosecutor offers, even if they are innocent.

Writing in 2016 in the William & Mary Law Review, Donald Dripps, a professor at the University of San Diego School of Law, illustrated the capricious and coercive nature of plea bargains. Dripps cited the case of Terrance Graham, a black 16-year-old who, in 2003, attempted to rob a restaurant with some friends. The prosecutor charged Graham as an adult, and he faced a life sentence without the possibility of parole at trial. The prosecutor offered Graham a great deal in exchange for a guilty plea: one year in jail and two more years of probation. Graham took the deal. But he was later accused of participating in another robbery and violated his probation—at which point the judge imposed the life sentence.

What’s startling about this case, Dripps noted, is that Graham faced two radically different punishments for the same crime: either be put away for life or spend minimal time behind bars in exchange for a guilty plea. In 2010, the Supreme Court ruled, in Graham v. Florida, that the punishment Graham faced at trial was so cruel and unusual as to be unconstitutional. The Court found that a juvenile who did not commit homicide cannot face life without parole.

Thanks in part to plea bargains, millions of Americans have a criminal record; in 2011, the National Employment Law Project estimated that figure at 65 million. It is a mark that can carry lifetime consequences for education, employment, and housing. Having a record, even for a violation that is trivial or specious, means a person can face tougher charges and punishment if he or she again encounters the criminal-justice system. Plea bargaining has become so coercive that many innocent people feel they have no option but to plead guilty. “Our system makes it a rational choice to plead guilty to something you didn’t do,” Maddy deLone, the executive director of the Innocence Project, told me. The result, according to the late Harvard law professor William J. Stuntz, who wrote extensively about the history of plea bargains in The Collapse of American Criminal Justice (2011), is a system that has become “the harshest in the history of democratic government.”

Plea bargaining didn’t exist in colonial America. Law books, lawyers, and prosecutors were rare. Most judges had little or no legal training, and victims ran their own cases (with the self-evident exception of homicides). Trials were brief, and people generally knew one another. By the 19th century, however, our modern criminal-justice system was coming into its own: Professional prosecutors emerged, more defendants hired lawyers to represent them, and the courts developed more-formal rules for evidence. Trials went from taking minutes or hours to lasting days. Calendars became clogged, which gave judges an incentive to start accepting pleas. “Suddenly, everybody operating inside the system is better off if you have these pleas,” Penn’s Stephanos Bibas told me.

The advantages of plea bargains became even clearer in the latter part of the 20th century, after the Supreme Court, under Chief Justice Earl Warren, issued a series of decisions, between 1953 and 1969, that established robust protections for criminal defendants. These included the landmark Gideon v. Wainwright andMiranda v. Arizona decisions, the former of which guaranteed the Sixth Amendment right to counsel in felony cases (since expanded to some misdemeanor cases), and the latter of which required that police inform those in their custody of the right to counsel and against self-incrimination. The Court’s rulings had the inevitable effect of making trials lengthier and more burdensome, so prosecutors began turning more frequently to plea bargains. Before the 1960s, according to William J. Stuntz, between one-fourth and one-third of state felony charges led to a trial. Today the figure is one-twentieth.

The legal system provides few rules and protections for those who take a deal. In what has been described as one of the Court’s earliest plea-bargain decisions, Brady v. United States (1970), the justices found that guilty pleas were acceptable as long as certain conditions were met, among them the following: Defendants had to have competent counsel; they had to face no threats, misrepresentations, or improper promises; and they had to be able to make their plea “intelligently.”

This seemed eminently fair. But crime had already started to increase sharply. The rise provoked a get-tough response from police, prosecutors, and legislators. As the rate of violent crime continued to accelerate, fueled in part by the crack epidemic that started in the ’80s, the response got even tougher. By the 1990s, the U.S. had entered what Donald Dripps calls “a steroid era in criminal justice,” which continued even though violent crime peaked by 1992 and began its now-historic decline. In the late 20th century, legislators passed mandatory-minimum-sentence and “three strikes” laws, which gave prosecutors an effective bludgeon they could use to induce plea bargains. (Some “three strikes” laws result in life imprisonment for a third felony; hundreds of people in California received this punishment for shoplifting. California reformed its three-strikes legislation in 2012 to impose such punishments only for serious or violent felonies.)

The growth of the system took on a life of its own. “No one sets out to create bloated criminal codes,” I was told by David Carroll, the executive director of the Sixth Amendment Center, which protects the right to counsel. “But once they exist, vast resources are spent to justify them.” In response to the crime wave, the United States significantly expanded police forces to catch criminals, prosecutor’s offices to charge them, and the correctional system to incarcerate them. Legislators have added so many acts to criminal codes that in 2013, Neil Gorsuch—now on the Supreme Court, but then an appellate judge—publicly raised concerns. In a speech sponsored by the Federalist Society, he asked, “What happens to individual freedom and equality—and to our very conception of law itself—when the criminal code comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?”

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