How Plea Bargaining Lands Innocent People -- Especially Poor Black And Latino Men -- In Prison
Scott Martelle reports in a Page One story at the LA Times:
Many folks wind up in prison because they have been strong-armed by prosecutors who carry all the power when it comes to deciding what charges to levy -- and what deals to offer.It's a lopsided system. By the time of arrest, or shortly afterward, the prosecutor is usually intimately familiar with the details of the alleged crime and the available evidence; the defense lawyer, especially when court-appointed, often has scant information and little time with the client before a plea deal is offered, Rakoff says (he focuses on federal cases, in part because state-level data aren't available, but there is nothing to suggest the state courts operate much differently). And that can lead the innocent -- especially, let me add, those who view the system as gamed against them -- to plead guilty to avoid the perceived likelihood of a harsher sentence after a trial in which they have little faith justice will be served.
In the federal system, fewer than 3% of cases filed in 2013 headed to trial, Rakoff writes, continuing a decline that began with the rise in crime in the 1970s and 1980s (in 1980, 19% of cases went to trial).
"[T]he prosecutor-dictated plea bargain system, by creating such inordinate pressures to enter into plea bargains, appears to have led a significant number of defendants to plead guilty to crimes they never actually committed. For example, of 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. Presumably they did so because, even though they were innocent, they faced the likelihood of being convicted of capital offenses and sought to avoid the death penalty, even at the price of life imprisonment. But other publicized cases, arising with disturbing frequency, suggest that this self-protective psychology operates in noncapital cases as well, and recent studies suggest that this is a widespread problem. For example, the National Registry of Exonerations (a joint project of Michigan Law School and Northwestern Law School) records that of 1,428 legally acknowledged exonerations that have occurred since 1989 involving the full range of felony charges, 151 (or, again, about 10 percent) involved false guilty pleas.
"It is not difficult to perceive why this should be so. After all, 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. If his lawyer can obtain a plea bargain that will reduce his likely time in prison, he may find it 'rational' to take the plea."
Lots of things to touch on here. First of all, I will point out that being unable to afford a good defense isn't a problem limited to poor people. A good defense attorney at $250/hour plus actuals can burn through the average middle-class person's savings pretty fast.
I am under the impression that defense trial-delaying tactics were something that began in the late '60s (someone correct me if I'm wrong). Prior to that, going to trial wasn't as much of a hardship because it would happen within a few weeks of charges being filed. Nowdays, it may be a year or more. Not only does the defendent incur a lot more hardship in terms of time and money to prepare the defense, there's also a lot more time for the defendant's name to be dragged through the mud by alleged victims, acquaintances, and/or the media. Between the financial hardship, the stress, and the loss of reputation, I wonder if some defendants don't simply decide that a conviction is no worse.
Finally, I have to admit that falsely confessing is something that puzzles me. A thought: of the people who sign off on false confessions, how many of there were incarcerated while awaiting trial, either because bail was denied, or because they could not afford to post bail? For the average person who isn't of a criminal nature to be exposed for a long period of time to the prison environment, I could see that causing a huge amount of psychological damage.
Cousin Dave at November 12, 2014 7:59 AM
One thing I always think is amusing about the municipal justice system is that prosecutors and public defenders have the same person signing their paychecks.
Fayd at November 12, 2014 9:44 AM
In my limited experience, public defenders tend to be the un-ambitious types, while prosecutors tend to be True Believers; and if they have to over-state the case, or push the boundaries, well, it is in service to a higher good.
doombuggy at November 12, 2014 10:19 AM
Don't forget about one of the most common tricks in the prosecutor handbook: piling on charges. You are accused of assault, but maybe you talked to your friend about it, so we'll add conspiracy. Anyway, you probably hate the guy's skin color, so we'll charge you with a hate crime. Oh, the money in your wallet triggered the drug dog, so we're going to charge you with drug dealing, and by the way, we're gonna take your car, your TV, and anything else we thing we can get away with under asset forfeiture...
And...oh, you just want to plead to the assault? Ok, we'll drop all the other stuff. Sorry about your car, we already sold it.
a_random_guy at November 12, 2014 11:23 AM
On the other hand, a lot of those in so deep that they are facing murder, rape, etc. have pretty long rap sheets and know how the system works. Some probably don't want too much scrutiny of their past activities.
I wonder how many freed by the innocence project go on to commit a crime. I recall one guy they freed who went back in for murder.
doombuggy at November 12, 2014 12:11 PM
"I wonder how many freed by the innocence project go on to commit a crime. "
Interesting question. The bulk of the cases uncovered by the Innocence Project were false rape convictions. Not sure how that plays into it. Off hand, I would guess that few of these man ever committed crimes before or after, but I don't have any data.
Cousin Dave at November 13, 2014 10:20 AM
"Don't forget about one of the most common tricks in the prosecutor handbook: piling on charges. "
Yeah, especially since you may inadvertently commit additional crimes while trying to defend yourself: "resisting arrest" (you refused to answer questions during your arrest), "structuring" (moving money around in order to pay your attorney), or the ever-popular "making a false statement" (something random you said when you couldn't figure out what the hell was happening).
Cousin Dave at November 13, 2014 10:24 AM
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