Excerpt: In the Trenches by Norm Pattis
Plea Bargains and Dark Justice
Should juries know about plea bargains rejected by those accused of crimes? We currently shield jurors from such knowledge. In most jurisdictions, jurors don’t even have a role in determining the sentence to be imposed if they find a person guilty. That’s the judge’s job, we say. This scrambled process yields something less than justice, and something far less than accountability. It yields an unregulated market in human souls.
Plea bargaining is the dark art of the criminal law. It takes place in secret. In the Connecticut state system, there are private meetings between prosecutors and defense lawyers where the parties try to strike a deal; in serious cases, judges get involved in these skull sessions.
In the federal system, plea bargaining is quite different. You almost never meet with the a judge to discuss a proposed disposition; the judge plays the role of the great Wizard of Oz, remaining hidden from view, appearing only while bedecked in his robe, in open court, the very oracle of justice itself. Even so, prosecutors and defense lawyers bargain, or horse-trade, all the time in an effort to try to forecast what a judge will do at the time of sentencing.
The overwhelming majority of cases are resolved by way of a plea bargain, with the public seeing only the puppet show the parties quickly put on the record in open court.
Trial gets all the attention; it is a public drama pitting the state, or, as they say in the stylized idiom of the federal courts, the government, against an individual accused of a crime. (Some states, such as New York, call the prosecuting authority The People.) Complex rules of procedure and evidence govern every move at trial, appellate courts ever on the watch for the sort of error that could undermine confidence in a verdict of guilty; in almost no cases at all do the state, the government, the people — choose your locution for this vast fictive entity — get to take an appeal. One of these rules prohibits the parties from letting jurors know about plea offers. Indeed, even the judge presiding over the trial itself is not supposed to know about a plea offer, lest knowledge of what the state thought just before a defendant elected to go to trial should influence what the judge thinks a just sentence should be.
In other words, the just result of a criminal conviction is contingent, apparently, on whether a defendant goes to trial at all. Justice is a commodity with a value that changes on the semi-private market in human life we call the criminal courts.
Shouldn’t jurors know about that?
Just the other day, prosecutors offered a client a chance to walk out the door if he would but plead to a felony, witness tampering, to be exact. If he pled guilty, the state would commit to a suspended sentence, and the client would face no time behind bars, only the virtual imprisonment of probation. It was a good deal; he faced serious charges, including sexual assault, and a requirement that he register as a sex offender if found guilty.
The client rejected the state’s offer, and the case went to a verdict. He was acquitted of the most serious sexual assault charges, but convicted of a misdemeanor sex charge. (Criminal offenses are classified as follows: infractions, which are not, technically speaking, crimes, carry no risk of incarceration, but merely a fine; misdemeanors yield a potential sentence of imprisonment of up to one year; felonies yield potential incarceration of anywhere from one year to life, or, in capital offenses, death.) He now faces up to 11 years at the time of sentencing, one year for the misdemeanor, and up to 10 years for the witness tampering charge. Bottom line: he’s going to prison on judgment day, the day sentence is imposed. He will be punished more severely as a consequence of rejecting a plea offer.
The jury deciding a case has no input into sentencing, it doesn’t even get to make a recommendation, at least in Connecticut. (Death penalty cases are the sole exception.) Some states, such as Texas, let jurors at least make a recommendation on what should happen. But no state, to my knowledge, permits jurors or judges to consider plea offers rejected prior to trial at the time of sentencing. In other words, all states think justice changes shape depending on whether a person chooses to go trial.
Plea offers are the criminal court equivalent of settlement offers in civil cases. Some schmo plows into your car while texting, and his lawyer, more likely his insurance company, is going to offer you money to make amends. The courts don’t want jurors hearing those offers of settlement for fear that jurors might conclude that only a party who did something wrong offers to pay money. After all, what person offers to pay money unless they did something wrong? And suppose the state offers a sweet deal, won’t a jury conclude that there must be reason to doubt the state’s proof if it learns that the man facing a handful of felonies was offered a walk out the door? Settlement discussions could taint the process of deciding guilt/liability.
There is a simple response to those objections. First, require a jury to decide guilt, or, in civil cases, liability. Once that decision is made, let jurors know what the plea/settlement discussions look like; let jurors hear from the parties what they thought justice required before trial — what, as lawyers say, the case was “worth.”
Years ago, an anguished juror called me. She’d voted guilty in a murder case. Eyewitnesses reported my client, a teenager, had shot a rival in the head at point blank over some trifling disrespect. The juror had just read in the newspaper the young man had been sentenced to 60 years in prison. “Why didn’t you tell me this could happen?” she asked.
“Because the law would not permit it,” I said.
She understood, but remains, to this day, troubled by the outcome. I wonder whether she would also have thought the plea bargain offered, 35 years, was too much?
We truck, barter and trade in human lives in the criminal courts. Seasoned lawyers know the value of a set of allegations, and speak candidly in private about the “worth” of the cases they handle. It is a semi-regulated market, the participants buying and selling liberty much like slave auctioneers. I fail to see why we keep these prices a secret from the very jurors we empower to act in the name of us all at trial. Shouldn’t the people in whose name justice is said to be done have a say in regulating this market once they’ve inspected the product?
“You are confusing me,” he said. “You’re telling me I should really consider the state’s offer, and that you are ready to go to trial. Which is it?”
We were standing on the courthouse steps. Jury selection was set to begin in less than an hour. The client had been made an offer of several years in prison in exchange for a guilty plea. If we tried the case to a verdict, and lost, he could serve a decade or more. The evidence against him was overwhelming.
“Both,” I replied. “My job is to advise, yours is to decide.”
Plea bargaining is the dark underbelly of criminal justice. Most cases end with a guilty plea of one sort or another. Only a handful of cases actually go to trial, and the prosecution wins the overwhelming majority of verdicts.
I worry that clients and their families don’t understand plea bargaining. Criminal defense lawyers marvel sometimes at self-destructiveness. You can tell folks that the odds of conviction are overwhelming; they should cut their losses with a plea. But some folks can’t face the catastrophe their lives have become. They hold out for a better bargain, or for the hope that a jury will forgive what the law condemns.
Would you ignore a tumor?
If prosecutors have probable cause to believe a crime was committed, and that you are the person who committed it, you may well be arrested. All at once, you stand in front of a judge, with a lawyer at your side, and plead not guilty.
The tools a lawyer can use to discover what a case is all about differ greatly in the state and federal courts. In general, however, defendants can file a series of motions requesting that the court order the government to provide information. During the course of these proceedings, the lawyers get to talking about what can, and cannot, be proven. A creative lawyer wheedles away at the prosecution every chance he can get, always looking for an angle, an edge, a means of pushing back.
Given enough time, in most cases experienced defense lawyers and prosecutors can reach a rough agreement about what a compromise might look like. Sad as it sounds, the criminal courts resemble a marketplace, this one trading in human suffering. After a decade or so, lawyers know the going rate for a given set of accusations. The price is measured in years. The government will agree to reduce or eliminate certain charges, if the defendant will plead guilty to what remains. The benefit to the defendant is avoiding the risk of getting hurt far worse at a trial, should he or she lose.
Sometimes, but only rarely, the government will drop charges altogether. I will never forget the stunned look on two brothers’ faces when I walked them out the door of the courthouse still dressed in their prison smocks after the state agreed to drop murder charges against them.
In cases involving serious criminal allegations, the choices an accused person must make are almost always awful. Young men accused of murder might be offered a chance to plead to 30 or 35 years in prison; lose that same case at trial, and the man child might be sentenced to 50, or even 60 years. Try explaining to a 20-year-old that there’s life at 50.
Sometimes, the choices seem easy to the lawyer, but are impossible for a client to make. The state might offer a suspended sentence in a difficult case, if the client will but plead guilty to a felony. But the client cannot face a felony conviction. So he rolls the dice on a trial that will result in a sentence of many years in prison if he loses.
Plea bargaining is not like a trip to the used car lot, where both buyer and seller are free to walk away unless just the right terms are struck. Yet many clients regard plea bargaining as a trip to the market. “Try again,” some say. “Get me a better deal.” Kicking the law’s tires will sometimes work wonders.
But more often than not, there is a limit to what creative lawyering can do. Plea bargaining is not like a trip to the mall, where you needn’t buy anything if the price isn’t right. A better analogy is to regard plea bargaining as akin to being tied to railroad tracks. There is a locomotive bearing down on you. What will you give to derail it?
Some clients seem to care a great deal whether their lawyer believes they are innocent. I’ve never understood that. Innocence is God’s problem; mine is the protection of a defendant’s prospects on this Earth. Trial is always risky, and it should be avoided if it can be — ask all the men and women who have been exonerated after conviction about whether the truth set them free in their initial trial.
There are times trial is a necessity. Sometimes, the state simply wants too much from a defendant. You calculate that even if you lose the trial, you can do better pleading for mercy from the court than you can by begging a prosecutor for justice. And sometimes, the state is just dead wrong, and you know it, but cannot get the state to listen. So you gamble on a jury’s willingness to follow the law. But placing a client’s life in the hands of the jury is always a gamble.
Too often trial is driven simply by terror and an inability to appreciate just how horribly wrong things can go in the instant a jury utters the word “guilty.” I’ve seen folks undone by that word, all at once wishing they could take the offer they were made before trial. Once a jury returns a verdict, however, the state rarely retreats to its pre-trial offer.
Why does the prosecution insist on charging a tax measured in years of a man’s life when a defendant chooses to go to trial? I wish judges were required to impose the last best plea offer as a sentence after a conviction. Justice doesn’t change, does it? The fact is, folks are punished more severely if they go to trial and lose, thus making even darker the shadows hanging over the plea bargaining process. Bargaining with a gun pointed at your head is only called justice in the courts, where justice is said to be done.
Here’s a not-so-modest proposal that will reduce the prison population, improve the performance of the criminal justice system, and yield greater confidence in the administration of what we call, with no apparent sense of irony, “justice.”
Eliminate plea bargaining.
Jurists like to whinny about the “vanishing trial,” yet we are systematically killing trial on the civil side by way of pre-trial motions; on the criminal side, defendants are overcharged, terrified and, often, all but extorted to take a plea. If trial by jury is disappearing, that is because we want to kill it. We do so at the loss of a sense of legitimacy, that odd form of alchemy in which mere power is transformed into a sense of authority.
The overwhelming majority of criminal cases are resolved by way of guilty pleas, whether the defendant is, in fact, guilty or not. The law has erected elaborate charades to make it possible to plead guilty to crimes you never committed. An Alford plea, by way of example, permits a defendant to plead guilty to a crime without admitting he or she committed the crime. Is that justice?
Not long ago, a client of mine read in the newspaper the statutory maximum he faced if convicted of a crime he was charged with, but did not commit. I explained that almost no one gets the statutory maximum. Yet there it was in cold type: He “faced” decades away from his loved ones. He wanted to plead to something, anything, to avoid what he was “facing.”
There is no doubt in my mind that had the man gone to trial he would have beaten the case. Indeed, there is little doubt that we would have persuaded a judge to dismiss significant parts of the case at the close of the state’s evidence. The prosecution was a threadbare farce. But defendants in criminal cases lack what is so readily available in civil cases: the ability to move for summary judgment, a procedure designed to get rid of truly awful cases after engaging in discovery. A criminal defendant has to roll the dice at trial, gambling his or her liberty against the sufficiency of the evidence.
Smart prosecutors know this. These same prosecutors also control the decision on what charges to file against a defendant. No judge supervises these charging decisions. Hence, the incentive for prosecutors to overcharge, publish the warrant or indictment, and then let the press scare the wits out of a defendant by reporting on the worst that could possibly happen.
If we eliminated plea bargain and required prosecutors to try the cases they charge, they would be more parsimonious in the charges they bring. It’s one thing to accuse, another to convict.
Wouldn’t that result in fewer prosecutions in a world of scarce resources? Yes. And who’s to say that would be a bad thing. Prisons are one of the few growth sectors in a bad economy, and we incarcerate, in this the Land of the Free, a higher percentage of our population than any other nation on Earth. When everything is a crime, everyone “faces” time. That’s wrong.
Forcing cases to trial could yield a greater sense of legitimacy in the community at large. Let juries nullify the law when they think it is misapplied. If we are trying to hold people accountable for the sake of the community, then why silence the community when it matters most?
Plea bargaining often takes place in private discussions either with the judge, as is done in the state system in Connecticut, or between the parties, as is done in the federal system. What is presented in open court is the result of a secret process. We talk about transparency in the criminal justice system, but then hide the manner and means by which most cases are resolved from the public. No wonder the criminal justice system is regarded by many as the moral equivalent of an alien power in our midst.
The prosecution of a person for a crime should be an extraordinary event in the life of a healthy society. Yet today prosecutions are routine, the prisons are full, we are feeding upon ourselves and we wonder why trials, once the showpiece of our criminal justice system, are vanishing.
Why not place a moratorium on plea bargaining for a decade or so. My hunch is that we would be no worse off than we are now. In fact, it might yield an improvement in the form of fewer prisons, more confidence in the criminal justice system, and greater accountability by prosecutors.
Think about it. Don’t just reject this altogether immodest proposal because it is at odds with that we do now. What we’re doing now isn’t working. It’s time for radical change.