Monday, November 05, 2007

'Do I get out today?' More on the fallacy of plea bargains as free market "contracts"

Bloggers reacting to Grits' Saturday review of a law prof's article on coercion, plea bargains, and free markets added some significant context to the debate. (I appreciated Doc Berman calling the post a "must read" and driving some traffic my way.) At I Was the State, after some much-appreciated compliments for Grits, Robert Guest describes his own experience with plea bargains as a prosecutor:
In East Texas every Friday I had jail docket. We had a nice space in the jail where the prisoners could meet with us and we could "plea bargain." Most of the defendant's had attorneys. If not, they would sign a waiver. These defendants had been in jail anywhere from 14 to 30 days.

These inmates could not get out of county jail because either bail was too high or they had a "hold." A "hold" is a situation where an inmate has a warrant out of another county or parole (a parole hold is typically called a blue warrant.)

95% of these defendants would plead guilty during these jail dockets. Why?

First of all, we offered a lot of "time served" deals. For example, Joe Defendant gets arrested for DWI. Joe has been in jail 30 days and can't make bail. I offer Joe a sentence of.... 30 days. Joe pleads guilty and gets to go home.

Second, if we didn't offer you time served we offered probation. I knew most of the defendants would have a very small chance of completing probation. A common question during these "plea bargain" sessions was "Do I get out today?"

Anyone who has been stuck in jail for 30 days will plead guilty to get out. Out of a year of defendants I maybe had one who insisted on going to trial, and I think he ended up being incompetent. Even the defendants who rejected my initial plea offer would beg to plead guilty when I came back next Friday. People stuck in jail want out.
Meanwhile, over at Corrections Sentencing, Michael Connelly picks up on a different theme from Grits' plea bargain post, arguing that "economic way of thinking pervades not just too much of our economic and social policy but of our law in general and criminal justice in particular." Says Connelly:
When you think of "free markets," you have two choices. Markets that just naturally spring from God's brow if silly, ignorant humans would just get out of the way or markets that have to be consciously structured and zealously maintained to prevent the natural dispositions of humans toward power, accumulation, and self-protection from directing the results predominantly their way. The first option is a religious truth, the second is reality. But being a religious truth, the first is what guides far too much of our reasoning about policy, and not just in economic policy but in education, health, name it.

But reality is that very special and specific foundations have to be laid and protected for markets to generate the outcomes their proponents advocate--in information, power relations between buyers and sellers, and especially in cognitive abilities, which is the point of the article and of Grits' commentary on it. You can't just say you have a market and then let things happen. You can't just say you have free speech and a marketplace of ideas and then let the folks able to buy the biggest megaphones and glittery-ist channels run wild. And you can't just say, we'll let prosecutors and defense, with unequal resources and abilities, do their thing in the market-like process of crim just, whether in a courtroom or out in the halls, and then have the justice and concern for social welfare that the rest of us require turn out magically okay. (Think both O.J. and Genarlow.) Yet, these latter crim just outcomes are all condoned by the magic invocation of process and competition and winner-take-all, just like in our present oligopolistic economy and media. And those who challenge, who note all the naked emperors, are treated to derision for not having drunk the kool-aid.
Connelly places his finger on the pulse of the dilemma. Markets DO work, and we need market mechanisms and market solutions to resolve many of society's stickiest social problems where individual choice complicates top-down, one-size fits all answers. Unfortunately in the modern debate, support for free markets frequently devolves to mean, for many people, "unregulated" markets, which in large-scale enterprises can be a recipe for disaster (take a look at the current sub-prime lending mess or the S&L bust in the late '80s to understand why). For markets to remain "free" over the long haul, "very special and specific foundations have to be laid and protected for markets to generate the outcomes their proponents advocate."

Those necessary conditions do not exist in the courtroom. Free markets don't remain free when governed by dictators, scalawags or oligarchs, and there is no more dictatorial figure in American public life than a zealous prosecutor or a courtroom judge. That's not to disparage their role, it's to recognize that the conditions do not exist in such a setting for a plea agreement to be considered a freely entered into "contract" to be governed by the same statutes and assumptions as an economic transaction, which is how the law currently views a plea bargain agreement.

These commentaries confirm my thinking that skewed and reductionist economic analyses fail to accurately capture the functional realities of plea agreements, which are no ordinary contract in the usual sense and shouldn't be treated as such. This subject deserves much more in-depth exploration than it currently receives in public discussions of crime and punishment.

15 comments:

Michael Connelly said...

"Scalawags." I like it. Wish I'd said. Great job on this topic. Please keep at it.--Mike

Anonymous said...

The whole business of plea bargaining is pure evil.

By the Bill of Rights, the prisoner has a right to a speedy trial -- not two months later, let alone two years later. If the police cannot try him within a couple of weeks they should be forced to free him.

If you were falsely arrested and jailed for two months and then were offered a deal -- plead guilty to a lesser charge and go free today, or refuse and spend the next twenty years in jail awaiting trial -- which would you pick?

The police are hugely failing to do their job. Rather than solve crimes, they are railroading patsies with extortionary schemes. These police officers need life sentences without the possibility of parole. They are dirtier than the mob.

Anonymous said...

Good Topic, and very true, I watched my son plea guilty and get probation just because he couldn't afford bail. He then found out that he couldn't afford all the classes and community service and still hold down a job. One attorney told him they will get their money whether from him paying or sitting in jail, they still get paid. Tax payers foot the bill when they sit in jail. Big Business. Big Profits.

Anonymous said...

This subject will benefit from being exposed to the light. Please continue to explore the writings of experts on plea deals.

The current plea bargain system amounts to guilty......unless rich.

Capitalism run amuck.......

The only solution is a meaningful defense. The government needs to fund defense at the same level as prosecution. Taxpayers can demand that their taxes are distributed fairly between prosecution and defense. Capital cases are starting to get some good attention. I hope all accused individuals can benefit from improvements in the near future.

Anonymous said...

Plea bargains exist to speed up the court dockets, and ease the jail overcrowding. They have very little to do with justice or fixing the problem, unless you consider jail time "fixing the problem." As a long time probation officer, I would say that 75 - 80% of the offenders coming throught the system are there for chemical abuse problems. Plea bargains for jail time never fixes that. It does give the false impression that justice was served because the offender was punished. All the offender wants is to get out of jail today so they can go back to the same life as before.

Anonymous said...

I guess actual guilt doesn't figure into the equation...

JSN said...

In our jail 68% are released by the jail on cash bond or by the magistrate after initial appearance on bond, recognizance or after a guilty plea (they are the ones with money or have relatives and friends with money). Another 16% are released within a week after completion of a sentence or bond reduction and after two weeks another 8% have been released often after a plea bargain and a sentence for time served.

The remaining 8% can be in jail for three weeks to two years and almost all of them are waiting for their case to be processed because the court is constipated (a few may be serving a 30 or 60 day sentence). They are under enormous pressure to plea bargain.

A few may be released on recognizance after 30 days because they have been in jail longer than they would be if they were convicted and sentenced (they served their sentence prior to conviction). You may ask why didn't they plea bargain and get out within two weeks? I guess some of our guests are not fully functional.

I cannot imagine how much worse our jail overcrowding would be if there were no plea bargaining.

Gritsforbreakfast said...

"You may ask why didn't they plea bargain and get out within two weeks?"

Perhaps some of them weren't guilty and felt a natural reluctance to say they were? That could also be true of some of those waiting up to two years for their case to be adjudicated.

JSN said...

In most cases we will never know if they were not guilty because they take the bargain 90% of the time.Out of 6,500 jail bookings there was one person who was released because they had been acquitted, however there were a score of others who were released because the charge was dismissed (most of them at initial appearance).

Very few of those held more than three weeks are acquitted about half are convicted and sentenced to time served a quarter are convicted and transfered to prison on a new court commitment and about a quarter are transfered/returned to prison on a revocation of probation, shock probation, work release or parole.

The attitude is "They are guilty and we will prove it when we get time." and the statistics support that view. The standards for a just outcome are very low. The courts are constipated at every level.

JS said...

Constipated.....I like that analogy. Reminds me of the last legislative session.

Anonymous said...

Nah, some of them like three hots and a cot.

W. W Woodward said...

While attempting to locate some others’ views on what I have for some time seen as court sponsored perjury [plea bargaining] I ran across the following quotes on the TAJLR - Texas Association For Justice And Legal Reform Forum.

http://www.tajlr.com/forum/viewtopic.php?p=350&sid=08fba13478bf31029ac4364481da80d2

“Plea bargaining is a system that is best described as one of condemnation without adjudication. It is a system that replaces trial, which is what our constitution intended, with deals.

Second, those deals are coerced. The prosecutor is basically forcing people to waive their rights to jury trial by threatening them with ever greater sanctions if they refuse to plead and instead demand the right to jury trial.”

John Langbein - professor of law and legal history, Yale Law School
Jan. 16, 2004
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[The plea bargain] “exerts a significant amount of pressure on people who are innocent or who are confronted by marginally provable cases. They're encouraged to forego their right to trial in exchange for a significantly favorable sentence, or a sentence that might seem to be favorable at the time that it's offered. For someone who is innocent it becomes a matter of principle; a very painful and difficult decision to make whether to forego the principle of their innocence, but run the risk of losing at trial and getting exposed to a significant sentence; or they take advantage of a plea bargain, which requires them to say they're guilty even if they believe they're not, and get a better sentence.”

Jonathan Oberman - clinical professor of law specializing in criminal defense at the Benjamin N. Cardozo School of Law, Yeshiva University
Jan.14, 2004
*****************************

“We're seeing court systems that are run about like a fast food restaurant. A fast food restaurant may be a little bit better, because at least there's some choices and a menu there for the customers. But people are processed through court not understanding what's happening to them, with no investigation by the lawyer, no understanding of who they are, when they're sentenced. They're just processed through the system.

In many courts in this country we have a system of assembly-line justice, where people meet their court appointed lawyer often in court, sometimes even in the front of the courtroom, talk to them for five minutes, plead guilty, are sentenced, and that's their entire exposure to the criminal justice system.”

Stephen Bright - defense attorney, professor of law at Yale and Harvard Universities and director of the Southern Center for Human Rights
Jan. 29, 2004
******************************

I’ve been in and out of criminal courtrooms since 1971 and have watched defendant after defendant swear that they are pleading guilty to the charges because they are guilty and for no other reason. That they are not making a guilty plea in hopes of receiving mercy or any other benefit. And, they have not been coerced or threatened and are making the guilty plea voluntarily, knowingly, and of their own free will.

Many if not most of these people are first time offenders, have no idea outside of what they’ve seen on television as to what happens in a courtroom, are scared to death, and just want to go home. Some are repeaters, indigent, figure they’re “gonna get screwed no matter what”, and just want to go home. And, then you have the offenders who will use any means at their disposal to “screw the system.”

Leviathan said...

I'm just kind of wondering . . .

If after they've served thrity days the State suddenly believes detained defendants are appropriate for plea bargains that will release them back into the community (whether through credit for time served or community supervision), can anyone explain why those same defendants weren't appropriate for release back into the community on a personal bond some four weeks earlier?

Gritsforbreakfast said...

Re Leviathan: Hammer, meet nail head. That's exactly right.

Anonymous said...

Plea Barganing, Prosecutorial Misconduct and Wrongful Prosecutions of citizens for the DA's office in Williamson County.

I fully support a tough criminal justice policy to protect citizens and our way of life. In the City of Round Rock, Willimason County Texas, it seems though the RRPD cannot distinguish a victim from an offender. When a RRPD Officer arrests the assaulted victim rather then the assaulting offender simply due a failed preliminary investigation, what happens? This type of policing behavior does and is occurring without all the facts being gathered in Williamson County. Many will ask why would this be allowed to happen here? Why would an Officer not seek the truth and other citizens account and arrest without properly seeking the truth. The answer RRPD in Wilco has an unwritten policy that suggests let the DA sort it out, I want my arrest score and "I thought I had probable cause."

Due to failures such as this some RRPD police officer’s it seems cannot properly investigate incidents they are dispatched to.
Innocent citizens are then arrested and sent to Wilco Jail, where they are victimized again. This begins an unbelievable ride thru the "you did it" Williamson Co. justice system where their lives begin the process of being ruined, simply because the arresting officer was to lazy to properly investigate.

Those mistaken offenders then have to deal with the notorious hang-em high attitude of the Wilco DA office and Court processes. Their theory is, either take a plea or face the possibility of going to prison anyway. Wrongful arrests prosecutions and/or convictions is a standard our young overzealous DA’s in this county are taught. A process that many in the legal community in Texas know as, “if you got charged in Williamson county you did the crime whether you did it or not attitude.”

Many wrongful prosecutions in Williamson County of late are becoming widely known. However, the days of false witnesses, false arrest and false prosecution are coming to an end in Williamson County. Case in fact: Several month's ago a prominant criminal justice professional was falsely arrested by RRPD. The Officer would not and did not care to listen to him or his side of the incident which would have explained true facts and exposed the criminal history of the true offender. This RRPD Officers bias was evident, but was it due to incompetence, carelessness or policy in Williamson County. Unfortunately this Officer maybe looking for a new position as a private security officer in the near future. It’s time this County understands that false accusations, underhanded prosecutorial tactics towards the innocent will not be tolerated and Police Officers will no-longer have a safety valve mentality to just do as they please to whomever.

A probable federal civil rights investigation into DA practises could be brought very quickly especially from the incident above since the real victim was not only disabled, but a combat related Disabled Veteran. DA’s bringing unwarranted and wrongful prosecutions upon the citizens in Williamson County can easily be scrutinized due to numerous complaints due to unethical prosecutions.

There is no worse act/crime than law enforcement officials failing in their duties, covering up those acts, writing false reports, failing to admit mistakes, failing to correct those mistakes, to include DA’s prosecuting a person based on those mistakes. In Williamson County the person is then victimized once more and placed on probation or worse. Why? Simply because the police and DA's office need to avoid the embarrassment of their incompetent actions.

The personal score card mentality Williamson Co. DA’s have developed is an indictment on us all and is the true embarrassment. As you read this, American men and women are dying to protect our freedoms. They are fighting and dying the same as those soldiers did in the past to preserve and protect our way of life and freedoms. When prosecutors anywhere such as these in Williamson county act, adopt and are allowed a scored card stragety to determine adjucative worth by superiors, we are not far behind Nazism. Citizens are not ham sandwiches for the DA’s office to feed or not feed Grand Juries inaccuracies to simply obtain an indictment.

DA’s in Williamson County may soon be finding themselves fed to federal investigators if their activities are not put in check. Then those victim's they have falsely accused and prosecuted in the past maybe vindicated. An ironic ruining of their own lives and law careers for their attitude of justice.

Wake up Williamson County citizen's. It’s your tax money being wasted! Furthermore you or your loved one's may be the next citizen falsly accused, arrested and wrongfully prosecuted. Public safety is the goal not tyranical injustice's simply for retrieval of federal funding. Wilco already taxes it's citizens to death. Open your eye's Williamson County.

John Bradely, you to seem to be uninformed and uneducated regarding the strenght of the people.