GateHouse: When plea bargaining is the only avenue to freedom

Matthew T. Mangino

GateHouse Media

June 14, 2019

In the classic movie adaptation of Mario Puzo's novel "The Godfather," Vito Corleone, played by Marlon Brando, tells his godson Johnny Fontane, played by Al Martino, that he was going to make a move producer "(A)n offer he can't refuse."

Ironically, every day in jails across the country impoverished inmates are made offers they can't refuse. The reason they can't refuse is because their liberty is at stake.

On a daily basis in this county, about a half-million people sit in county jails awaiting trial, most because they are unable to afford bail. According to The Appeal, a 2018 study of defendants in Philadelphia and Miami-Dade counties - by researchers at Princeton, Stanford, and Harvard - reports that people being held for an inability to pay bail earned on average roughly $4,500 a year.

A recent analysis of the Franklin County Jail in south central Pennsylvania found that poor inmates - those who could not afford bail - served their jail time before their sentence. How can an inmate serve his sentence before he or she is determined to be guilty?

In 2016, according to The Appeal, more than 100 people held in Franklin County were found not guilty, had their cases dismissed, or entered a guilty plea and got released on a non-incarceration sentence.

According to The Appeal, in more than 75 percent of the cases, the person charged faced no more than a misdemeanor as the lead charge. The average case lasted 30 days before the defendant was released.

That is how we get to the "unrefusable" offer in the criminal justice system. An accused is arrested on a felony. The defendant does not have the wherewithal to make bond. She sits in jail. The state realizes their case isn't great - witnesses disappear, evidence is weaker than first thought, the defendant has an alibi - the prosecutor offers a plea to a lesser charge and time already served in jail.

The plea is the defendant's ticket out of jail. Now, the defendant could refuse to plead guilty and go to trial. That might mean sitting in jail for months while the case is prepared and scheduled for trial.

Do you see "the offer the defendant can't refuse?" Liberty right now or further incarceration and the risk of conviction at trial and a harsh sentence.

Although there seems to be something inherently wrong with locking up poor people who can't afford bond and then offering the time they already served as the penalty - it is not just the poor who get through the system by negotiation.

Most defendants who pass through the criminal justice system waive the right to a trial, and all the constitutional protections that come with being charged, in exchange for a plea bargain. Emily Yoffe wrote in The Atlantic that the vast majority of felony convictions are now the result of plea bargains - about 94 percent at the state level, and 97 percent at the federal level. Estimates for misdemeanor convictions run even higher.

Although, the American criminal justice system prides itself on the heavy burden placed on the state to prove those accused of a crime guilty beyond a reasonable doubt - very few are actually subject to that burden.

Supreme Court Justice Anthony Kennedy acknowledged as much in 2012, when writing an opinion in a case that helped establish the right to competent counsel for defendants who are offered a plea bargain. Kennedy wrote plea bargaining "is not some adjunct to the criminal justice system; it is the criminal justice system."

For those without the ability to post bail, plea bargaining is often the only avenue to freedom.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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