Tuesday, September 25, 2012

Plea bargaining and the innocent defendant

Has the rise of overcriminalization and the ascendancy of plea bargaining heightened the risk that innocent defendants may plea guilty? Those questions were raised in a must-read article published in the Wall Street Journal this week ("Federal guilty pleas soar as plea bargains trump trials," Sept. 23) which explored the likelihood that significant numbers of innocent people are enticed to plea guilty to avoid harsh federal sentencing guidelines. From the story:
The triumph of plea bargaining in the federal system, which has gathered pace in recent years, is nearly complete. Guilty pleas last year resolved 97% of all federal cases that the Justice Department prosecuted to a conclusion. That is up from 84% in 1990. During that period, the number of federal defendants nearly doubled amid a crackdown on crimes ranging from drug trafficking to fraud, while the number going to trial fell by nearly two-thirds.

This relentless growth in plea bargaining has sparked a backlash among lawyers, legal scholars and judges—evidenced by recent federal court decisions, including two from the Supreme Court. Weighing on many critics is the possibility illustrated by the Kassab case: that the innocent could feel pressured into pleading guilty.
One troubling factor is that, when cases are plea bargained, prosecutors aren't forced to actually prove their cases or turn over so-called Brady material. "Among the legal protections given up by a defendant when he pleads is the right to receive evidence from the prosecution that supports a claim of innocence. That means a person might plead guilty to a crime not knowing prosecutors are holding exculpatory evidence."

The Journal attributed the trend to mandatory sentencing regimes in the federal system (and their state-level counterparts) which have given prosecutors extraordinary leverage in negotiating pleas:
Behind the dominance of the plea bargain is the rapid growth in the number of federal criminal laws and the stiffening of sentences by Congress and the U.S. Sentencing Commission, a board created in the 1980s. After scandals at Enron and other companies in the early 2000s, for example, Congress increased the potential sentence for certain types of fraud to 20 years from five years.

Federal guidelines not only toughened punishments but also formalized a system to reward defendants who plead guilty by reducing sentences if they accept responsibility or cooperate with prosecutors, among other things. As part of plea deals, federal prosecutors often drop additional charges that could add years, or decades, to a sentence. Going to trial brings none of those benefits for the accused.
The article cited concerns expressed in:
two related decisions this year by the Supreme Court, which said defendants hadn't been adequately represented by their attorneys during the plea-bargaining process. Plea bargains "have become so central to the administration of the criminal justice system" that defendants should receive the kind of protections associated with going to trial, Justice Anthony Kennedy wrote.
Justice Antonin Scalia dissented from the decisions but wrote that the system encourages a prosecutor to charge an individual with so many criminal counts that it "effectively compels an innocent defendant to avoid massive risk by pleading guilty to a lesser offense."
A sidebar to the story (not available to non-subscribers) cited research by a pair of academics, Lucian Dervan and Vanessa Edkins, to be published next year in an article titled "The Innocent Defendant's Dilemma."  They studied the behavior of students falsely accused of cheating on tests, finding that "more than half of the innocent participants were willing to falsely admit guilt in return for a benefit" of reduced consequences. Their analysis of the implications of that finding deserves exploration in greater detail.

Though today criminal justice practitioners consider the use of inducements via lighter sentences to secure plea bargains as commonplace, Dervan and Edikins describe how only recently have appellate courts accepted the practice:
Interestingly, early legal precedent regarding confessions prohibited the offering of any inducement to prompt the admission. As an example, in the 1783 case of Rex v. Warickshall, an English court stated, “[A] confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape… that no credit ought to be given to it.” While plea bargaining as it exists today relies upon the use of incentives, common law prohibitions on such inducements persisted until well into the twentieth century.
According to Dervan and Edkins, "While corruption kept plea bargaining alive during the late nineteenth and early twentieth centuries, overcriminalization necessitated plea bargaining’s emergence into the mainstream of criminal procedure and its rise to dominance." The rise of overcriminalization they argue, particularly the Prohibition era, turned plea bargaining from a corrupt exercise practiced mainly in the system's shadows to the only practical means of handling prosecutors' massive caseloads. They cite research to say "federal prosecutions under the Prohibition Act terminated in 1930 had become nearly eight times as many as the total number of all pending federal prosecutions in 1914." Today, of course, prosecutions related to the drug war play a similar role, though the trend toward overcriminalization extends far beyond that realm.

Even so, "Though plea bargaining rates rose significantly in the early twentieth century, appellate courts were still reluctant to approve such deals when appealed." However, "By 1967, despite a continued rejection of plea bargaining by appellate courts, even the American Bar Association (“ABA”) was beginning to see the benefits of the institution." The US Supreme Court did not affix its official imprimatur on plea bargaining, though, until 1970 in a case styled Brady v. United States. In that landmark case, SCOTUS overturned past precedents to rule that:
[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e.g. bribes).
The Supreme Court surmised that innocent people would be unlikely to accept plea bargains and choose to vet the prosecution's evidence at trial. But Dervan and Edkins' research with students suggested, they argued that in real-life situations, innocent people don't behave that way:
Previous research has argued that plea bargaining’s innocence problem is minimal because defendants are risk-prone and willing to defend themselves before a tribunal. Our research, however, demonstrates that when study participants are placed in real, rather than hypothetical, bargaining situations and are presented with accurate information regarding their statistical probability of success, just as they might be so informed by their attorney or the government during a criminal plea negotiation, innocent individuals are actually highly risk-averse.
Such conclusions directly call into question the modern justifications of plea bargaining by appellate courts, for essentially the same reasons the practice was disdained in the 18th and 19th centuries. Even in Brady v. United States, noted the authors, SCOTUS suggested that, "We would have serious doubts about this case if the encouragement of guilty pleas by offers of leniency substantially increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves." Dubbed "the Brady Safety-Valve," that caveat suggested the Supreme Court could reevaluate the constitutionality of plea bargains "if the persuasiveness of the offers are coercive and surpass a point at which they begin to have the potential to ensnarl an unacceptable number of innocent defendants." 

In light of their study involving students, Dervan and Edkins suggested that, "As is now evident from the study described herein, the Supreme Court was wrong to place such confidence in the ability of individuals to assert their right to trial in the face of grave choices." They concluded, "That the plea bargaining system may operate in a manner vastly different from that presumed by the Supreme Court in 1970 and has the potential to capture far more innocent defendants than previously predicted, means that the Brady Safety-Valve has failed and it is time for the Court to reevaluate the constitutionality of the institution with an eye towards the true power and resilience of the plea bargaining machine."


Spot On said...

Definitely hitting the nail head on here! If there is concern in the federal system, there should be even greater concern in the lower court systems. Very good points and an accurate depiction of the plea bargaining as it is used today.
Could have gone one step further poining out how the process is so suceptible to misuse by prosecutors.

Anonymous said...

Although you imply that plea bargaining is something initiated or encouraged by prosecutors, in my experience nearly every instance of plea bargaining is initiated by the defense attorney. In fact, some would suggest that it may be ineffective assistance of counsel for a defense attorney NOT to ask for a plea recommendation from the prosecutor. A competent defense attorney should be able to evaluate the strength of the prosecution's case, the attitudes and values of the judge and local juries and advise the client accordingly. Keeping in mind that at some point in any defense attorney/client relationship, there will likely be a discussion something along the lines of "did you do it" or "do you just want me to try to get you the best deal I can?" Whatever disparities might exist in the relative bargaining power of the parties, it is still a bargain. There is typically an offer, some level of negotiation and, ultimately, acceptance. It takes two to tango, as they say.

Gritsforbreakfast said...

9:10, the point of the WSJ story and the academic article is that, although it takes two to tango, the parties don't come to the bargaining table with equal clout. Long sentence lengths and prosecutorial discretion combine, particularly where there are potential mandatory minimums, as with federal sentencing guidelines, to stack the deck. Getting an innocent person to plea guilty to avoid an astronomical sentence may look like a "bargain" to the prosecutor, but it looks like coercion from the defendant's point of view.

Anonymous said...

Not to mention the spill-over that has local prosecutors in some instances threatening defendants that if their deal isn't taken soon they will notify federal investigators and slap a federal case on them too. I've only seen this tactic used in limited situations but when it was used it was persuasive and produced a quick conclusion.

Anonymous said...

Extortion n. -the crime of obtaining money or some other thing of value by the abuse of one's office or authority.

Avg Joe said...

Anonymous @ 9/25/2012 09:10:00 AM stated: "A competent defense attorney should be able to evaluate the strength of the prosecution's case, the attitudes and values of the judge and local juries and advise the client accordingly."

Would a competent lawyer also conduct his own investigation/discovery and not just rely on what the prosecutor's file allegedly holds?

Gritsforbreakfast said...

Avg Joe, perhaps a better question is "would a competent defense attorney perform an investigation for $150, or whatever sum is paid to lawyers for representing indigent defendants?"

Anonymous said...

Ah, if only it was simple as 9:10 makes it sound. First, I suspect a lot of defense attorneys would rather their client plea for a couple of reasons. One, even if they are getting paid by the client instead of the measly indigent fee, most criminal cases are now done on flat fees so they come out ahead if they don't go to trial. Trials take time to prepare for and time to do. That is time they can spend working out additional plea deals and making more money. Second, I'm sure some defense attorneys enjoy going to trial, but I'm sure that for some its not something they find enjoyable. Third, going to trial is risky. The defense attorney probably feels better about a plead deal that gives his client what he considers to be a good deal vs. going to trial and possibly getting a harsh sentence. Some defense attorneys may put these considerations first and actual guilt or innocence may not be that important. Note I said some, not all.

Also, I'm not sure that 9:10's statement about pleas always being initiated by the defense is accurate. The only one I have personal knowledge of is my own. I was charged with a felony by a DA who knew the charges to be false. Basically, I was charged with a trumped up felony because I called the DA a couple of names. Youv'e heard of contempt of cop, mine was contempt of the DA. Because of the DA's personal involvement the case was prosecuted by the AGs office. They made the initial plea offer of 5 years deferred adjudication on the felony charge. My response was not only NO, but Hell No. After I fired my wimpy attorney and hired on that they were afraid of, they offered to reduce the charge to a misdemeanor and one year of deferred adjudication. They made both offers, my attorney didn't ever ask for or make any offers. I wish now that I had fought because I was innocent. But, at the time there were other considerations that I won't go into here. I had experienced a significant tragedy and I wasn't really emotionally up to a very public trial. So, weighing the options of going to trial knowing that people in the DA's office were willing to commit perjury to send me to prison, against pleading to a misdemeanor and a year of deferred adjudication, I took the deal. Hear this - it was extremely difficult for me to say, in open court, that I did something I did not do. I almost couldn't do it. I almost blew it. I remember my defense attorney whispering to me that I was blowing the deal. But, I managed to pull it together and lie, i.e. say I did what I didn't do. It was either that or go to prison for something I didn't do. What would you do?

Anonymous said...

Average Joe, how about when a competent attorney conducts his own investigation and discovery by issuing subpoenas to law enforcement agencies who then claim that evidence was recorded or written over inadvertently of course and the current case law says there is no remedy unless you can prove bad faith in the destruction of that evidence? And because they are aware of the near impossibility of proving bad faith that they get rid of evidence that may invoke the exclusionary rule and wreck their case. Then at the suppression hearing the prosecutor in robes as fact finder elects to believe the testimony of the Officer who should have evidence supporting his testimony, but does not, and the prosecutor in robes repeatedly looks the other way as these Officers do the same thing multiple times without being questioned about why we only have their word when there should be video or audio to support their testimony. It allows them to make illegal stops then claim that something happened a mile back to justify the stop (off the 30 second prerecord loop). To preserve that event, one button push is all it takes and if they don't do it they should not be believed time and time again. Judges who refuse to invoke the exclusionary rule and choose to accept this nonsense over and over should resign and join the prosecutor's office. What about when an officer coerces a defendant and in doing so obtains evidence illegally and their is video of it that conveniently malfunctions in the portions that show an officer making bogus claims to get someone to take a breath test for example?

Anonymous said...

What about the factually guilty defendant whose constitutional rights were violated to obtain the evidence against him in a victimless crime? What about the Officer who is then allowed to continue violating Constitutional rights of not only the guilty but many innocent people that we never hear from because they don't know their rights and were not taken into custody?

Lee said...

Good article Grits. It did focus more on the federal level than on the district and county courts.

Perhaps you can clarify and elaborate: The results of Brady v. Maryland means that prior to trail all evidence (witness and exhibits) and such must be provided to the defense attorney. This includes such evidence that the prosecutor is not intending to use at trial, prosecutor or police think is irrelivant, anything and everything found through the investigation....? It seems very evil for the prosecution to encourage a plea prior to the defense receiving all of this information. Elaborate.

Gritsforbreakfast said...

Lee, as I understand it (IANAL), Brady v. Maryland only requires disclosure in cases that go to trial. It imposes no requirement on cases that plea out, which is one of its shortcomings in an era when 97+% of cases are resolved through pleas

Anonymous said...


In my experience you have to pound on the DEFENSE attorneys to do their job. If you plead without demanding a hearing or a trial, you are out of luck. In my case I have solid withheld evidence of perjury at a suppression hearing; In my NEW attorney's immortal words, "Supppression is over." This of course is BS, he did not want to pursue it or go to trial. His oppinion was you could not win at trial in that court with perjured testimony in hand? And if you plead things get even darker in this grey area. If defense council dosen't want to do a suppression hearing (which is in reality the trial in a drug case), you don't want them representing you anyway. They are paid by you to talk you into pleading, one for the money, two not to rock the boat where they practice and three, God forbid you challenge the sham called the legal justice system where they make their living. The points made in anon 1:48, 1:49, 1:57 are all valid.

Gary said...

There's no question plea bargaining is coercive, especially given the long-time prosecutorial practice charge-stacking for the specific purpose of coercion. What's needed is far more fixedness in sentencing so that discretion (other than whether to charge at all) is eliminated at both prosecutorial and judicial levels.

The reduction under federal sentencing guidelines (which, by the way, have been merely voluntary for about a decade) for "cooperation" and "accepting responsibilty" are minimal. To force the process to offer only minimal reductions will encourage guilty persons to plea guilty and encourage those who are innocent to plea innocent (rather than intimidate them to plea guilty under wildly more severe sanction threats). The vastest majority of offenders are guilty.

Thus, the STRUCTURE of proportional guidelines (allowing for minimal reductions for guilty pleas) based on the harm of the offense and the culpability of the offender (and culpability increases with prior convictions) is good. What needs to be examined is the length of punishments under fixed proportional systems.

The idea that disallowing plea bargaining will increase the trial rate by 900% (all who now plea bargain will opt for trial) is a myth that has been perpetrated by lawyers--defense, prosecutors, and judges. Criminals will plea guilty at an extremely high rate when bargaining is not allowed and the sentences are proportional.

Moreover, disallowing plea bargaining actually serves due process by giving potential offenders much clearer "proper notice" of the consequences of their actions, assuming that they are deterrable (a dubious assumption given criminals' here-and-now orientation). But it's fair. No longer will they be confused about the sentence they would face (i.e., "I thought I could plea bargain").

When criticisms come from both sides of the political spectrum related to a criminal justice practice--where the Left opposes it because of its coerciveness and other lack of due process and the right opposes it because it fails to incapacitate, set an example, or teach a lesson)--we ought to examine that process.

Anonymous said...

TO Gary said

Stated very well and couldn't agree with you more about the myth of disallowing plea bargaining.

Except on one point, Prosecutors are the sole source for perpetuating the myth that trials will increase %900.

Thomas R. Griffith said...

Hey Grits, man that was one hellofa piece on a topic that's engulfed my life. I've dammed near bit my (hunt & peck) fingers off trying to avoid chiming in until at a time where Comments / Replies / Updates covered certain areas of concern I have personal knowledge of but left out of the entire equation, so here goes.

*Before I go there - (Folks should also consider reading the GFB Comment section above for it is full of what needs to be: asked / said / confirmed / shared).

RE: Competent Attorneys / Lawyers / Plea Bargaining & Probationers -

The Law (especially Harris County District Courts – the nasty 263rd to be precise) allowed / allows them (hired and appointed) to dabble in areas they have absolutely no experience in. A Divorce / Estate specialist can: portray himself as a real CDL, be referred to as one, consult with families of felony defendants, quote fees to - "Take It To Trial", take down payments or collateral, pretend to file pre-trial discovery motions 30 days prior to trial date (that will ‘not’ be recorded by the clerk of court) & (the motion's ORDERS will ‘not’ be Agreed or Denied). Then come to the conclusion they are way over their head at lunch recess and lie to clients in courtroom holding cells in order to get out of it, telling clients on probation that despite a Not Guilty or Guilty verdict they are going to prison just for being arrested on a new charge while on it, and to avoid 99 years take the plea.

So, if the WSJ editors happen across this, I suggest that you take the next year to expand your study to include real life experiences of those of us humans having ample proof of innocence prior to arrest only to be positively identified, charged, indicted & tricked into convicting ourselves by the very MoFo hired to prove one's innocence.

My F-Story would never be considered for inclusion in their study due to the WTF? Factor, due to it dealing with what they ignored & showing that this Brady bullkrapola and due process expectation is a friggin joke. Thanks anyway, at least you got the ball rolling again. Like it’s going to matter.