“A diligent prosecutor can convince a grand jury to indict a ham sandwich.”

This quote by New York Court of Appeals Chief Judge Sol Wachtler was made even more famous in the Tom Wolfe novel The Bonfire of the Vanities. Apropos of nothing, Judge Wachtler also once referred to the death penalty as “the chicken soup of politics,” because “it can’t hurt.”

What Judge Wachtler meant is that the grand jury system, in many places, is essentially a farce. Until just a few generations ago, it was not uncommon for the prosecutor to hand-pick the grand jurors, who then dutifully indicted nearly every defendant the prosecutor presented. Even today, defense lawyers are prohibited from appearing before a grand jury in most jurisdictions.

The problems with the grand jury system are the subject of another article. The point here is that the Constitutional protections afforded to criminal defendants are being eroded at an alarming rate, and the grand jury is just the beginning. The Sixth Amendment guarantees people a speedy trial before a jury of their peers. At this trial, the state must prove its case beyond a reasonable doubt and the defense has the opportunity to directly confront most all adverse witnesses. A defendant may be convicted only if an impartial jury decides that he is guilty beyond a reasonable doubt and says so publicly, through its verdict.

Alas, according to an extensive and thoughtful article by The Honorable Jed Rakoff, who is a United States District Judge in the Southern District of New York, the Sixth Amendment has largely been reduced to mere words on paper.

Plea Bargaining

Most criminal charges were disposed of by trial up through the Civil War. The War Between the States triggered many, many fundamental changes in the fabric of American society. One bit of fallout, according to Judge Rakoff, was a significantly increased crime rate. The influx of new cases set the stage for a reduction in the number of trials as courts attempted to push cases through the system. Overworked lawyers and judges were anxious to avoid a trial, while defendants who were unable to make bail might have to wait weeks or months for a trial date.

The new dynamic set the stage for a new way of dealing with criminal cases. In 1881, Albert McKenzie pleaded guilty to misdemeanor embezzlement. He had originally been charged with a felony, for taking $52.50 from his erstwhile employer, and so he avoided a trial for the more serious offense, which carried a much stiffer penalty than the one he received.

Today, according to Judge Rakoff, the criminal trial is as dead as the Stegosaurus. “Our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors . . .” Indeed, upwards of 97 percent of modern defendants do the same thing that Mr. McKenzie did. They plead guilty to a reduced charge or in exchange for a reduced sentence. There is no judicial oversight. There is no public trial. There is no court reporter. There is no opportunity for the defense to challenge the state’s evidence. Making matters worse, the prosecutors’ first offer is generally their best offer. The defense attorney is forced to enter into “plea negotiations” with the state (or “ritual begging,” as it is referred to in some areas) without having professionally evaluated the evidence in the case, and maybe without having even seen the evidence at all.

The plea bargain is the epitome of a take-it-or-leave-it contract of adhesion. Even if the offer is patently unfair, defendants have few alternatives other than a trial. The prosecutor’s supervisors nearly always stand up for their employees (who may have even embellished the “facts” in order to convince his superior to approve his proposed plea offer), and the judge will probably refuse to become involved. In fact, in many jurisdictions, it is illegal for the judge to become involved in plea negotiations.

How Did We Get Here?

The process that began in the 1880s accelerated in the 1980s. Up until the Reagan Revolution began in 1981, 19 percent of criminal cases still went to trial. Then, the political landscape began to change again. Some people may remember all the “tough on crime/soft on crime” judicial elections in the 1980s. At roughly the same time, Congress passed so-called “mandatory minimums” for certain offenses. A defendant that may have faced a maximum ten or fifteen years in prison in 1978 might have been looking at a maximum thirty or forty years in 1988.

The death nail into the trial system came in the 1990s, when Congress passed mandatory sentencing guidelines for federal criminal cases. Initially, the judge had almost no discretion to deviate from the guidelines. These guidelines are now nonbinding, but the effect remains much the same. By 2000, the proportion of criminal trials had gone down to 6 percent; by 2010, the number was 3 percent, “and it has been there ever since,” according to Judge Rakoff.

Judge Rakoff adds that the guidelines “provide prosecutors with weapons to bludgeon defendants into effectively coerced plea bargains.” Picture an initial meeting between a prosecutor and defense attorney. The prosecutor says something like “your client is facing a ten thousand year sentence unless he pleads guilty in the next 24 hours. In that case, I’ll be nice and reduce the charges. If there’s no plea, I’ll charge the maximum. Maybe we can work something out later, but understand that this current offer is my best offer.”

Bear in mind that at this stage, defense attorneys are at a significant disadvantage to the prosecutor when it comes to discovery. Indeed, prosecutors have had the opportunity to review police reports, grand jury testimony, forensic reports, and the list goes on. Defense lawyers have access to their clients’ version of events, and that’s about it.

Against this backdrop, the defense lawyer, as information-deprived as a cell that has been invaded by a parasitic worm is nutrient-deprived, meets with the overconfident prosecutor, who states that, “unless the case can be promptly resolved by a plea bargain, he intends to charge the defendant with the most severe offenses he can prove.”[i]

The conscientious defense attorney knows exactly what this means: Because the grand jury is likely to approve any charge the prosecutor recommends, “the best outcome … is likely to be an early plea bargain, while the prosecutor is still willing to accept a plea to a relatively low-level offense.”[ii]

Pragmatically speaking, as Judge Rakoff observes, the prosecutor “effectively exercises the sentencing power, albeit cloaked as a charging decision. . . What really puts the prosecutor in the driver’s seat in the fact that he – because of mandatory minimums, sentencing guidelines …, and simply his ability to shape whatever charges are brought – can effectively dictate the sentence by how he publicly describes the offense.”

An Example

Assume that Defendant Dan is arrested with a large cache of heroin. Under the law, Dan could be charged with a wide range of offenses. Peter Prosecutor is a “young gun” in the U.S. Attorney’s Office looking to make a name for himself. In a conversation with Adam, Dan’s attorney, Peter says that he is considering a conspiracy charge, but offers to drop the case to simple possession if Dan pleads guilty right away.

What’s the difference? A drug conspiracy charge might carry a ten-year mandatory minimum sentence and a guidelines range at least twice that high. Simple possession, on the other hand, has no mandatory minimum and a guidelines range of less than two years.

If Dan needed any additional encouragement, he could do some Internet-surfing and find some disturbing statistics. In 2012, the average plea bargain in a drug case was a little over five years. The average sentence after a trial, on the other hand, was over three times that high! If I were Dan, I’d be asking for a pen so I could sign on the dotted line of that plea bargain agreement. Wouldn’t you do the same thing?

But If It Ain’t Broke…

Crime rates have declined drastically in the past twenty years, largely due to increased prosecutorial discretion in sentencing. Why would we want to go back to the way it was, when violent drug crimes and other heinous offenses were in the headlines almost every day and many urban neighborhoods resembled war zones?

Thomas Jefferson said that “a criminal justice system that is secret and government-dictated invites abuse and even tyranny,” and he was right. The entire plea bargain system is secret, and the prosecutor effectively decides the sentence. Arbitrary results are inevitable in these circumstances.

Even as you are reading this piece, the plea bargain system is sending innocent people to jail. One in ten of the people that the Innocence Project has freed pleaded guilty to crimes they did not commit.[iii] Again, Judge Rakoff had some excellent insight. “The typical person accused of a crime combines a troubled past with limited resources: he thus recognizes that, even if he is innocent, his chances of mounting an effective defense at trial may be modest at best.”

Every criminal defense attorney has experienced this phenomenon in one way or another. In fact, I have experienced it enough times myself that I can write the script. I walk into the interview room at the jail and introduce myself to “Johnny.” Before I can say another word, Johnny immediately professes his innocence as clearly and unequivocally as if he was shouting it from the rooftops.

Weeks later, after furnishing Johnny with police reports and a pre-indictment plea offer, Johnny does an “about face,” announcing that he “did it” and that he just wants “to get it over with and move on.” Now, of course, Johnny might well have been pulling your leg during the initial interview, perhaps by being, let us say, less than forthcoming when he professed his innocence.

At the same time, it’s not difficult to envision a scenario where Johnny was lying when, in the wake of being confronted by the government’s discovery, he claims that he is now “guilty.”

While some might justify Johnny’s decision to plead guilty to a crime that he did not actually commit as being entirely “rational,” in the sense that he was able to evaluate the government’s proofs and engage in a cost-benefit analysis, I could not disagree more.

What’s easy to overlook is how the pressure of the situation may have skewed Johnny’s appraisal of his chances for acquittal (regardless of how strong they might be) and ultimately influenced his decision to plead guilty. What could have caused an innocent person like Johnny “to make a less-than-rational appraisal of his chances for acquittal and thus decide to plead guilty when he not only is actually innocent but also could be proven so?”[iv]

In other words, what caused Johnny to make a false guilty plea? The very same thing that causes defendants to make false confessions: inordinate pressure. As so eloquently stated by Judge Rakoff:

Although research into false guilty pleas is far less developed, it may be hypothesized that similar pressures, less immediate but more prolonged, may be in effect when a defendant is told, often by his own lawyer, that there is a strong case against him, that the likelihood of acquittal is low, and that he faces a mandatory minimum of five or ten years in prison if convicted and a guidelines range of considerably more – but that, if he acts swiftly, he can get a plea bargain to a less offense that will reduce his prison time by many years.[v]

At the end of the day, as hard a pill as this might be for Johnny to swallow, he realizes that he is better off “cutting his losses” and sitting out a few months in jail (which he might even admit to being able to do “while standing on [his] head”) rather than taking the risk of going to trial, losing, and spending what very well could be the rest of his natural life locked up in a six by eight-foot steel cell.

In short, the “consequences of going to trial and losing are too severe [for Johnny] to take the risk.”[vi]

A Disturbing Statistic

How pervasive is the problem of innocent people pleading guilty? Hold onto your hats for this. Criminologists who have studied this phenomenon estimate that “the overall rate for convicted felons as a whole is between 2 percent and 8 percent.”[vii]

From here, it is possible to extrapolate an estimate for the number of innocent people who have pleaded guilty. With approximately 2.2 million Americans in prison[viii] and plea bargaining claiming responsibility for 97 percent of all convictions,[ix] we know that “over two million are there because of plea bargains.”[x] Assuming a conservative 2 percent false guilty plea rate, this means that at least 40,000 people “are in prison for crimes to which they pleaded guilty but did not in fact commit.”[xi]

The Answer?

Judge Rakoff offers an intriguing solution that would both keep cases moving through the system and still give defendants some semblance of a day in court. Connecticut and Florida are experimenting with magistrate judges who oversee the plea negotiation process and then make a recommendation to the presiding judge. Such a system is already commonplace in civil cases. Essentially, this would be the equivalent of “settlement negotiations” in a civil case.

In the same way that a magistrate often presides over settlement negotiations in civil cases, a magistrate would also conduct the proceedings in the criminal plea bargain situation. And just like the civil magistrate is prohibited from reporting the results to the judges who handle the subsequent proceedings, the same would apply to criminal magistrates.

Judge Rakoff gives keen insight into how such a proceeding might work:

As I envision it, shortly after an indictment is returned (or perhaps even earlier if an arrest has occurred and the defendant is jailed), a magistrate would meet separately with the prosecutor and the defense counsel, in proceedings that would be recorded but placed under seal, and all present would be provided with the particulars regarding the evidence and the issues in the case. In certain circumstances, the magistrate might interview witnesses or examine other evidence, again under seal so as not to compromise any party’s strategy. He might even interview the defendant, under an arrangement where it would not constitute a waiver of the defendant’s Fifth Amendment privilege against self-incrimination.[xii]

The prosecutor would, in the meantime, be precluded from making any plea bargain offer (or threat) while the magistrate was studying the case. Once the magistrate was ready, he would then meet separately with both sides and, if appropriate, make a recommendation, such as to dismiss the case (if he thought the proof was weak), to proceed to trial (if he thought there was no reasonable plea bargain available), or to enter into a plea bargain along lines the magistrate might suggest.[xiii]

Neither the defense nor the prosecution would be obliged to follow the magistrate’s recommendation. For those who think that the lack of a means for enforcing such a recommendation and making it binding on the parties would be the cause for its downfall, don’t overlook the fact that the source of the suggestion, namely the neutral third party, will be a judicial officer who defense attorneys and prosecutors have to appear before regularly.

Like Judge Rakoff, I am not so naïve to think that settlement negotiations will be the “solve all” for eliminating false guilty pleas once and for all.[xiv] On the contrary, I agree with Judge Rakoff that such negotiations may even “present new, unforeseeable” challenges of their own.[xv] At the same time, I can’t help but think that it would reduce their number.

Cash-strapped local governments would probably balk at the idea of expanding court staff to deal with criminal cases, but freedom isn’t free. To preserve our liberty, we should preserve the criminal trial system that our Founding Fathers established. In the words of former Nazi death camp inmate Martin Niemöller:

First they came for the Socialists, and I did not speak out, because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out, because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out, because I was not a Jew.

Then they came for me, and there was no one left to speak for me.

Endnotes:

[i] Why Innocent People Plead Guilty, Jed S. Rakoff, The New York Review of Books, November 20, 2014, at p. 5, available at http://www.nybooks.com/articles/archives/2014/nov/20/why-innocent-people-plead-guilty/

[ii] Id., supra, at p. 6.

[iii] “… [O]f the approximately three hundred people that the Innocence Project and its affiliated lawyers have proven were wrongfully convicted of crimes of rape or murder that they did not in fact commit, at least thirty, or about 10 percent, pleaded guilty to those crimes.” Why Innocent People Plead Guilty, Jed S. Rakoff, The New York Review of Books, November 20, 2014, available at http://www.nybooks.com/articles/archives/2014/nov/20/why-innocent-people-plead-guilty/

[iv] Id., supra, at p. 10.

[v] Id., supra, at p. 10.

[vi] Id., supra, at p. 11.

[vii] Id., supra, at p. 10.

[viii] Id., supra, at p. 7.

[ix] Id., supra, at p. 2.

[x] Id., supra, at p. 10.

[xi] Id., supra, at p. 10.

[xii] Id., supra, at p. 11.

[xiii] Id., supra, at p. 11.

[xiv] Id., supra, at p. 12.

[xv] Id., supra, at p. 12.