Part 2 – The coercive nature of plea bargains

Aaron Swartz’ situation was no different than the thousands of other defendants facing an indictment. He faced the unenviable choice of either risking a conviction and a possible 35 years in prison, or else take a plea, spend 6 months in prison, and be labeled a felon. The extreme disparity between sentences is enough to make anyone take pause before fighting a case in court, even if they are innocent. Unfortunately, this brand of coercion is common practice in the United States.

Astonishingly, almost 95% of cases that result in a felony conviction never reach trial. Granted, not all of these bargains are against the interests of the defendant. Often a defendant will gladly take a plea to avoid trial and lessen their sentence. However, without accurate statistics or meaningful judicial review, it is impossible to know how many times a defendant was coerced into a plea, or how often an innocent defendant took a plea merely to avoid the risk of trial.

It is now well-recognized in American jurisprudence that a plea bargain does not violate the Due Process clause of the Constitution. The gains in efficiency and cost are seen to outweigh the defendant’s interest in a formal trial. However, there was speculation as late as the 1950s that the Supreme Court might find the practice unconstitutional. Many felt that plea bargaining violates the spirit of due process by effectively taking away the option to stand trial. “The plea bargaining process facilitates ‘prosecutorial adjudication,’ in which the prosecutor serves as the ‘central adjudicator of facts (as well as replacing the judge as arbiter of most legal issues and of the appropriate sentence to be imposed.)'”

The problem lies in allocating these functions in a single person, and worse, in a person who may be motivated to accumulate convictions. Prosecutors are pressured to plea bargain because of a number of factors. First, without plea deals, their heavy caseloads would quickly become unmanageable. Second, guilty pleas keep costs down and improve efficiency. Third, political pressures on prosecutors encourage them to keep a high conviction rate. As Bernard Baruch put aptly, “If all you have is a hammer, everything looks like a nail.”

If these factors were not enough, courts share this motivation, as a judge’s worth is measured partly by how many defendants are convicted with limited resources. This could help explain why courts have been so friendly to plea deals that simultaneously increase the number of guilty convictions while clearing the docket. With 95% of cases ending in a plea bargain, one might think that courts would want a way to review what has happened in negotiations behind closed doors. In fact the opposite is true. Courts have repeatedly denied judicial review for plea bargains. The Supreme Court has stated that “[w]e have squarely held that a State may encourage a guilty plea by offering substantial benefits in return for the plea.” Courts must acknowledge the practical necessity of plea deals, but perhaps ulterior motives have led judges to defend the practice more zealously than justice requires or allows.

A common tactic used by prosecutors at the beginning of plea negotiations is overcharging. They will charge the crime with the most severe penalty to gain leverage over the accused. The tactic is most effective if the accused is risk-averse. “Because defendants stand to lose significantly more than prosecutors by not settling, negotiations are fundamentally skewed in ways that may lead to innocent defendants pleading guilty and to guilty defendants serving sentences disproportionate to their crimes.”

To bring any charge, the prosecutor merely must have probable cause to “believe that the accused committed an offense defined by statute.” This is not a difficult hurdle to clear. “[O]ften it takes nothing more than a fertile imagination to spin several crimes out of a single transaction. ” With the hurdle so low, and the incentives in place for prosecutors, overcharging at the beginning of plea negotiations has become a matter of course.

This is a continuation of last week’s post. Next week, I will post the third and final part, which will discuss potential changes that could help to alleviate these problems.

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