Punishment Without Trial: Why Plea Bargaining Is a Bad Deal.
A summary of Carissa Byrne Hessick's book
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🖼️ Big Picture
👉 97% of convictions come from plea bargains. Most cases have been decided this way for some time but the trend is getting much worse. As courts become more “efficient” we end up with a larger and larger prison population.
👉 The Founders placed a strong emphasis on jury trials as a form of democracy that was as important or more important than voting in elections. The Originalist interpretation of the Constitution favors more jury trials, but the Supreme Court upheld plea bargaining’s constitutionality in the 1970s, and holds that it is the only way to deal with high case volumes.
👉 In addition to violating due process and interfering with separation of powers, plea bargains are inherent unjust in certain situations because they pressure people to give up their rights. We don’t tolerate this in other areas, why should we when it comes to the right to a trial?
🔑 Key Concepts & Highlights
Mass incarceration
Hessick writes the book against the back drop of record prison populations — a product of a criminal justice system that makes it too easy to lock people up, both guilty and innocent.
We need more than slightly less harsh laws and prosecutors who take a less punitive approach to their jobs. We need to make it more difficult for the government to punish people without trials. — Location 147
Justice vs. Efficiency
Efficiency has warped the criminal process so that it no longer looks like something that an ordinary American would recognize as the system we learned about in school-a system in which you are innocent until proven guilty beyond a reasonable doubt. — Location 157
Plea bargains have become the default way for prosecutors to earn a conviction because it avoids time-consuming and expensive jury trials. Defendants are encouraged to plead guilty and are offered a lighter sentence compared with what they would receive if they plead innocent but were ultimately found guilty.
Due Process Violations & Rights of the Accused
The shift towards plea bargaining, “ damages the very foundation of our criminal justice system,” says Hessick. People are not charged with the crimes they committed, but merely to charges negotiated outside of court.
Instead of providing a process that is supposed to sort out the truth of what happened, our system just lets lawyers negotiate an outcome. — Location 127
Beyond plea bargaining, the system has also embraced pretrial detention, where posting bail is a condition for staying out of jail before the court date, and civil asset forfeiture, where money is seized in cases of suspected criminal activity before a person gets a fair trial. All of these violations of due process result from the drive towards greater efficiency.
Justice Scalia, although skeptical of the rise of plea bargaining, called it a “ncessary evil.” Hessick quotes him saying that, “without it our long and expensive process of criminal trial could not sustain the burden imposed on it, and our system of criminal justice would grind to a halt.”
What Would the Founding Fathers Say?
These unfair laws led the colonies to demand their independence. One of the specific complaints against King George III in the Declaration of Independence was that he deprived the colonists of trial by jury. More generally, the colonists rebelled against England because they thought the English government made it too easy to restrict their liberty, take their property, and throw them in jail.
The Constitution was written after independence to protect the rights of the accused.
[The Founders] commitment to this principle was embodied by one of the most famous legal sayings of all time: “It is better that ten guilty persons escape than that one innocent suffer.”
The right to a jury trial is mentioned twice in the Constitution — including the 6th amendment to the Bill of Rights:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . .” All of the state constitutions also protect the right to a jury trial in criminal cases.
Plea Bargaining is a Recent Phenomenon
Judges used to be reluctant to accept guilty pleas — instead encouraging defendants to
Later, guilty pleas were associated with “taking responsibility.” But what about when a person is innocent? In that case, a more severe punishment for pleading innocent seems patently unfair. Reviewing the history, Hessick finds an early case in which the Supreme Court found a certain kind of plea bargaining rule unconstitutional:
When the defendant in a kidnapping case pleaded guilty, he could avoid both a trial and the death penalty; federal law allowed a defendant convicted of kidnapping to be sentenced to death only if the jury recommended the death penalty. Therefore, as a practical matter, only kidnapping defendants who insisted on going to trial could be sentenced to death; defendants who pleaded guilty would never have a jury that could recommend death. The Supreme Court eventually decided that the kidnapping law was unconstitutional because it “made the risk of death the price of a jury trial.” But that decision wasn’t made until after the defendant in Brady pleaded guilty.
However, the precedent wouldn’t last:
The Supreme Court put its stamp of approval on plea bargaining the year after Brady, in a case called Santobello v. New York. Santobello involved a defendant who agreed to plead guilty to a lesser crime in exchange for the government dropping more serious charges and agreeing not to argue for a harsh sentence in front of the judge.
Ultimately, the lack of resources led to the “vanishing trial.”
Tough on crime laws and increased law enforcement budgets resulted in more people charged with crimes, and the courts could not keep up.
Since the Supreme Court confirmed the constitutionality of plea bargaining, we have seen the plea bargaining rate increase even further. In 1970, 81 percent of convictions in federal court were the result of guilty pleas. By 2000 the rate was nearly 94 percent. A 2018 analysis of federal court cases by the National Association of Criminal Defense Lawyers concluded that the rate is now more than 97 percent. — Location 457
This efficiency has benefits, but at the expense of individual rights.
Rational Choice Theory and the “Business Decision” to Plead Guilty
Chapter 3 of the book looks at cases where innocent people decided to plead guilty based on rational calculations of “expected value.” The prison terms under the bargains were short compared to the possible lengthy terms if convicted on even one count. Defendants are often encouraged by their lawyers to plead guilty even when they know their client is innocent because they’ve seen juries that grant one conviction to be on the safe side, even if the jury believes the defendant is innocent.
Mandatory Minimums
The higher the sentence prosecutors can threaten, the more it changes the expected punishment calculation in their favor. If I’m facing one hundred years in prison if convicted, then I’m going to jump at a plea deal of only one year. But if I’m facing only three years if convicted, then I’m more likely to go to trial. In other words, the longer the sentences, the more leverage prosecutors have in plea bargaining. — Location 723
Strong mandatory minimum sentencing has given prosecutors a major bargaining chip in being able to threaten defendants with harsh punishment, and then be perceived to be lenient in offering a better deal — charging them with a lesser crime in exchange for a guilty plea.
This practice — allowing a defendant to plead to a lesser crime — is so common that it has its own name: charge bargaining. Charge bargaining also occurs when a prosecutor agrees to dismiss some charges in a multi-count indictment.
The “Trial Penalty”
Is there a reward for pleading guilty, as plea bargaining defenders will claim, or is there a penalty for pleading guilty?
Some judges admit to being vindictive when the accused insists on using precious resources in receiving a trial.
Some people say that the trial penalty doesn’t punish people for exercising their right to a trial; it just grants a benefit (a shorter sentence) to those who are willing to plead guilty. Personally, I don’t see how a judge’s explicit threat to put someone in jail for an extra decade can be recharacterized as a benefit to some other defendant who pleaded guilty.
Sometimes criminals are given deals by prosecutors that expire if they choose to hire a public defender. Prosecutors also ask defendants to waive certain other constitutional rights such as the right to see the evidence against them or the right to appeal.
Civil Asset Forfeiture
What’s the connection between plea bargaining and the practice known as civil asset forfeiture?
For one thing, law enforcement tactics when seizing money or property can look a lot like the tactics that we see in plea bargaining. Law enforcement uses leverage in order to scare people away from exercising their rights.
Even if the money seized had no connection to a crime, it can be hard and costly to prove innocence. For defendants without a lot of resources, they risk further financial losses trying to recover what was stolen.
Civil forfeiture can be very lucrative for law enforcement. A 2014 Washington Post investigation of federal forfeiture records found that law enforcement seized more than $2.5 billion in the years after 9/11 without either a search warrant or an indictment. State and local officials got to keep more than $1.7 billion, and the rest went to various federal agencies.
Criminal Justice Reform
Groups like the Institute for Justice are fighting for our rights — both in court and in the court of public opinion.
Meanwhile, a number of efforts are underway to reform the laws to make them less focused on efficiency and more focused on justice.
2016 marked the beginning of a wave of reforms, and the election of many reform-oriented prosecutors.
Trump passed the First Step Act at the urging of his son in law Jared Kushner, but many voters — liberal and conservative — still say they favor making criminal laws harsher.
Jeffrey Epstein’s Plea Bargain
One of the most high profile examples of plea bargaining took place with the case of Jeffrey Epstein:
Despite what seemed like significant evidence of sex trafficking, federal prosecutors decided not to pursue charges against Epstein. They entered into a deal with Epstein in which he could plead guilty to state prostitution charges and, in return, no federal charges would be brought against him or any of his accomplices. — Location 2937
People were briefly outraged by the lenient plea bargain when the news of Epstein’s guilt rose to the top of the news cycle.
This example shows how the problems with Plea bargaining cut both ways — sometimes the innocent are forced to plead guilty, and in other cases, the guilty are let off easy:
Put simply, a system designed to circumvent jury trials actually ends up circumventing other controls on the criminal justice system as well, including the public’s sense of right and wrong. Not only is the public not able to understand what the officials are doing in their name, but they are removed as a check in individual cases.
🗨️ About the Author
Carissa Byrne Hessick is the Ransdell Distinguished Professor of Law at the University of North Carolina School of Law, where she also serves as the director of the Prosecutors and Politics Project. Before joining the faculty at UNC, she taught at the law schools of Arizona State, Harvard, and the University of Utah. Her work on the criminal justice system has been published by the Los Angeles Times, the Philadelphia Inquirer, Slate, and numerous academic journals.
Hessick attended Yale Law School, where she was an editor of the Yale Law Journal and winner of the Potter Stewart Prize for the Morris Tyler Moot Court of Appeals. After graduating from law school, she clerked for Judge Barbara S. Jones on the Southern District of New York and for Judge A. Raymond Randolph on the D.C. Circuit. She also worked as a litigation associate at Wachtell, Lipton, Rosen & Katz in New York City. Before joining the faculty at Carolina Law, Hessick taught on the faculties at Arizona State University’s Sandra Day O’Connor College of Law and the University of Utah’s S.J. Quinney College of Law. She also spent two years as a Climenko Fellow at Harvard Law School.