Tuesday, January 03, 2006

Coercion, threats, intimidation and plea bargains: The Jack Abramoff case

Who would say there are no threats or intimidation involved in plea bargaining? Prosecutors executing them, thank you very much, and in Orwellian overtones. I agree with Mark Kleiman's characterization of the "grossly dishonest language" employed in Jack Abramoff's plea bargain. What grieves me, though, is that it takes a celebrity prosecution to highlight common, egregious practices that go on every day. Kleiman writes:
Paragraph One of the plea agreement states that "The defendant is entering into this agreement and is pleading guilty freely and voluntarily ... without threats, force, intimidation, or coercion of any kind."

Yes, I know that's just the boilerplate, but I find the false recitation obnoxious, especially the crashingly false "of any kind" thrown in as an afterthought. The agreement is indeed free, voluntary, and uncoerced in the sense that Abramoff faced no extra-legal force or threats. But to deny that being told you might die behind bars if you refuse to talk constitutes "threat" and "intimidation" is to stretch the language completely out of shape.

An act can be voluntary even if made under pressure: that is, I can freely choose to accept a lesser evil rather than a greater, as when the surgeon tells me he needs to amputate my leg to save my life. But when someone says he will damage me unless I do what he wants me to do, that's a coercive threat, and the fact that he is legally entitled to damage me because of my own past bad acts doesn't change that fact.

Kleiman has identified one of the great unspoken myths commonly applied to all plea bargains -- that they're just contracts freely entered into by defendants without coercion. It's pure B.S., though, one of the biggest of the criminal justice system's Big Lies -- unhappily, one that's turned our court system into an enormous plea mill. Without that myth enshrined in stare decisis, most justifications for a plea-bargain-based system of adjudicating guilt crumble.


Anonymous said...

I gotta agree that the boilerplate language is an affront to common sense, but when you recall law enforcement practices from not so long ago, the language is more sensible. Police are certainly in a position to use violence and threats to coerce confessions and even pleas. The disclaimer is aimed at that interest. Still, it sounds stupid.

In Abramoff's case, the threat is that he'd have to face a jury and a zealous prosecutor. The coercion is equal justice under law. The intimidation is the applicable statutory law. I suppose they could have also thrown the high likelihood of supernatural punishment well into the afterlife.

Anonymous said...

"the threat is that he'd have to face a jury and a zealous prosecutor."

You can say the same thing for thousands of drug possession cases, or any other plea bargain. The erosion of the right to a jury trial under the false cover of non-coercive plea bargains has undermined a key constitutional right -- one shouldn't let partisan animosity toward Abramoff et al obscure that fact, or excuse it as though the end justifies the means.

Writer said...

Plea bargains are the prosecutor telling you that if you make him do work to prove you're guilty, he'll seek the maximum sentence. If you sign here, and save him a lot of work, you get a lighter sentence. The contract presumes you are guilty rather than presuming your innocence.

Anonymous said...

Prosecutors are not presuming a defendant guilty, they are determining that the defendant is guilty by reviewing the evidence. That's not a presumption, it's a judgment. The presumption of innocence is a duty of the jury and of the court, but not of the state. It is nonsensical to expect the prosecution to presume the defendant is innocent when the prosecutor has reviewed the evidence in the case. The presumption of innocence is a right of the defendant, and would require an acquital from a jury or a judge if no evidence of guilt is presented. But if there is evidence of guilt, the presumption evaporates and the question for the factfinder becomes whether enough evidence of guilt is presented.

There has been no erosion of the general right to a jury trial. If anything, that right has become stronger in the last 50 years. How does a plea bargain offer constitute an erosion of the right to trial? Offers are made only because the defendant has a right to trial. If you are concerned about the effect of the plea system, you should focus on the provision of adequate defense. The right to trial in any given case is far more threatened by lazy counsel than by prosecutors.

As for saying the same thing (threat of jury and zealous prosecutor) about any other case: yep, that's right. A defendant can trade rights for lenience. Or the defendant can exercise rights and live with the result of trial. That's the choice of the defendant. With good counsel, most defendants will make the best choice given their cirumstances. The contract you speak of is the plea agreement, and it doesn't presume anything, it states unequivocally and over the signature of the defendant that he or she is guilty of the charge. The defendant gives up more than a right to trial by signing such an agreement. He also gives up the right to remain silent, the right to confront witnesses, and usually the right to appeal the conviction.

And Shaine, there's something to what you say, but the dynamic is actually the opposite. Plea offers are also the prosecutor's way of saying what he thinks a jury will do if the case is tried, and then discounting that guess by the amount of work it would take to try the case. The reason lots of guilty defendants plead guilty is that they think the prosecutor has made a good guess.

Not to put too fine a point on it, I recently tried a murder case in which the defendant had in fact murdered his wife. The state offered him 50 years, and came down to 40 about 5 minutes before we picked the jury. The defendant declined the offer, and after a week long trial, the jury gave him 80 years. The jury didn't care that the prosecutor had to do more work than she would have if the defendant plead gulity; they just thought that the crime was worth 80 years. That doesn't mean that the prosecutor punished the defendant for making her work hard, but that the prosecutor would have traded half the sentence for not having to try the case. If we are sore at the prosecutor, it should be for the opposite reason than the one under discussion here: that the prosecutor was willing to trade away 40 years to save the trouble of trial.

Be clear about this, at least in Texas, juries set the punishment without regard for the work the prosecutor had to do, and it would be serious error for the court to allow the prosecutor to even suggest to a jury that the punishment should be higher because the defendant wanted a trial. I just want to make the distinction that the defendant is not punished by the prosecutor for declining an offer, but that the offer represents a discount of the likely jury-imposed sentence.

Lots of very guilty people have benefitted by the presence of the plea system, and have served sentences far less than they would have had they gone to trial. You can bet dollars to donuts that Abramoff is among these people. My personal distaste for the guy has nothing to do with my take on his case. A jury would have creamed him.

Gritsforbreakfast said...

@ anonymous 2:34 pm: Sure, that's the pat justification for the plea bargain, but then DAs show up at the Lege looking for every tiny bit of leverage to be given to their side while stripping away defedants' rights under the guise of being "tough on crime."

Plenty of times DAs go after pleas because they KNOW they can't prove their case. Shaine's right, plea bargains are just a crutch for lazy prosecutors. Here's something on the DeLay case I wrote recently taken from a Travis County consultant's report about the court system that tells the other side of the plea story:

"A recent consultant's report (pdf, p. 46) analyzing the Travis County probation system declared that frequently Travis County prosecutors 'may not push for a prison sentence knowing that there is not enough evidence for getting a conviction to prison in a trial but there is enough to force a plea for a probation sentence.'

"In other words, prosecutors under DA Ronnie Earle routinely 'force a plea' for crimes they know they can't prove in court!

"That's just what Tom DeLay accuses Earle of doing to him! So if it turns out that a jury doesn't convict DeLay, the only thing that should be considered extraordinary would be the acquittal.

"Otherwise, welcome to everyday Texas justice."

Anonymous said...

Hey Grits,

I am anonymous because I don't have a blogger account. I'll sign my name from here on out to facilitate discussion.

The dynamic of prosecutors offering probation rather than litigating prison time relates much more strongly to the pre-trial detention issues you were focusing on recently. Guys sign probation deals because it gets them out of jail today. Prosecutors exploit short-sighted defendants all the time. If a defendant has to wait 5 or 6 months in jail for trial, he is likely to grasp at the opportunity to get out and resolve the case despite being advised of the risks of probation. In some cases, not rarely but not often, a prosecutor can exploit the docket to increase the wait for trial. They do this by trying another case, or by continuance, or by pleading a witness unavailable, or any other number of finesse moves. This is where prosecutors, and I'm talking about reasonable ones, really piss me off. A guy who's been waiting for his trial date only to learn the case has been continued again will often give up and plead for probation just to get out of jail. That's a truly screwed up dynamic.

But generally, prosecutors can't "force" a plea, they can only pressure for it. It's not coercion, it's not a threat, it's not intimidation. It's pressure. The presence of the jury is a wild card that frightens both sides, so both sides are usually willing to give something up to avoid the jury.

In cases where the defendant is free pending trial, the dynamic of a decision to accept a plea offer is as I described earlier. It's a simple risk analysis. And the disclaimer regarding coercion, etc. is legitimate in my opinion. Coercion is not "Gee, this is taking too long and I'd really rather be out of jail." Coercion is "You will plead guilty or we'll deny you medical care, or beat you, or isolate you, or otherwise harm you."

I am not one to stick up for prosecutors. I have only met one or two I'd have a beer with. But it's not fair to call litigation coercion.

Kelly Higgins

Gritsforbreakfast said...

@Kelly: The language about "forcing" pleas was from Travis County's paid consultant. As for distinguishing between "coercion" and "pressure," Dictionary.com says they're synonyms, see:


I think you're splitting hairs here that are too fine to split. Good point about pretrial detention INCREASING the coercive nature of plea bargains. To say they're not coercive outside that context, though, strikes me as having defined your terms as technical legal jargon, ignoring how most people use those phrases. Best,