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Plea Bargaining: Prosecutors Leave Trail of Injustice When Playing Hardball with Defendants

by David Reutter

To fight against government tyranny in the criminal justice system, America’s Founding Fathers enshrined into the Constitution the “right to a speedy and public trial, by an impartial jury.” Plea bargains, however, have become, as the Supreme Court of the United States (“SCOTUS”) said, “not only an essential part of the process but a highly desirable part.” While plea bargains have streamlined the management of court caseloads, they all too often result in the conviction of factually innocent persons or create final judgments that are legal fiction.

Thomas Jefferson said, “I consider [trial by jury] as the only anchor yet imagined by man, by which government can be held to the principles of its constitution.”

Plea bargaining was first introduced as a legal tool that could protect citizens’ rights and address the need for courtroom efficiency. It, however, was criticized as being too radical from the system’s trial nature and removed jury safeguards against wrongful convictions. By the late 19th century, the nation’s population growth and increased policing systems, combined with expanded criminal codes, placed an increasing caseload on prosecutors, and they normalized plea bargains into the process to quickly resolve cases despite the criticism.

As plea bargains gained momentum in the 1800s, its practice also began to evolve and shift. Prosecutors, for instance, began overcharging suspects to increase perceived performance and to frighten defendants into taking a plea to avoid severe penalties from multiple charges. A practice that continues to the present is the filing of an indictment that contains multiple charges to gain leverage to obtain a plea on one charge, or charging a higher offense to gain a plea on the actually committed lower offense.

The Wisconsin Supreme Court in 1877 wrote that pleas are “hardly, if at all, distinguishable in principle from a direct sale of justice.”

Appellate courts across the country after the Civil War “all condemned it as shocking and terrible,” said Albert Alschuler, a retired law professor who studied plea bargains for five decades. Most other countries regarded plea bargains as a kind of “devil’s pact” since it allows the defendant to avoid the full force of law.

The practice of plea bargains in America continued, nonetheless, to grow in use as a way to streamline caseloads and gain convictions. An industry grew around it as “fixers” could be hired to arrange alternatives to a prison sentence. Police regularly toured jails to “negotiate” with prisoners. In New York, one defense attorney and friend to magistrates hung his shingle in front of night court and hawked 10 days in jail for $300, 20 days for $200, and 30 days for $150. With Prohibition in the 1920s, court dockets saw 88 percent and 85 percent of cases resolved by plea bargaining in New York and Chicago, respectively.

That trend has continued — and increased. In 2013, 8 percent of all federal charges were dismissed either because of a mistake in fact or law or because the defendant decided to cooperate. More than 97 percent of the remaining cases were resolved by guilty plea. In state courts, 94 percent of cases, on average, are resolved via a guilty plea. New York has the highest percentage of cases resolved via plea with 98 percent. In 1980, 19 percent of all defendants went to trial; by 2000, that number decreased to 6 percent. 

In noticing the state of America’s criminal court system, the SCOTUS said in Missouri v. Frye, 132 S. Ct. 1399 (2012), that “ours ‘is for the most part a system of pleas, not a system of trials.’” That system has created a functioning market where defendants do not expect the maximum sentence, the court noted in Lafler v. Cooper, 132 S. Ct. 388 (2012). Ninety years ago, Columbia Law School professor Raymond Mosely called the plea bargaining process “more akin to a game of poker than to a process of justice.”

“The expected post-trial sentence is imposed in only a few percent of cases. It is like the sticker price for cars: only an ignorant, ill-advised consumer would view full price as the norm and anything less as a bargain,” observed Stephanos Bibas in a California Law Review article.

The Constitution requires reliable procedures in order to accurately identify suspects who are guilty. That begs the question of whether plea bargains fulfill that constitutional mandate. According to the National Registry of Exonerations, 15 percent of all exonerees originally pleaded guilty. That share rises to 49 percent for people exonerated of manslaughter and 66 percent for those exonerated of drug crimes.

Critics point to the paradigm shift that plea bargains created. They say the prospect of pleas places too much power in the hands of prosecutors as they have the sole authority to decide what charges will be lodged. The problem with overcharging is extremely harmful for poor persons who cannot afford to post a cash bond.

Several studies have found that pretrial detention results in longer sentences, and it is more likely the defendant will plead guilty. For example, in California, Aron Jensen was offered 16 months in jail when his bond was set at $20,000. He managed to post bond, and the offer changed to probation and community labor.

The Effect of Overcharging

Every state, with the exception of California’s abolishment of the industry in October 2019 and Washington, D.C., uses a cash bond system. While arrestees are not formally charged with a crime and are considered by the Constitution to be innocent, most of them must post a bond to obtain release.

In most jurisdictions, low-level charges such as misdemeanors have a set bond amount, but in others, the defendant must appear before a court for that amount to be determined. This is where overcharging begins to have a detrimental effect upon the accused. More charges mean a bond amount for each charge, and overcharging a crime can make the defendant appear to be a greater public safety risk.

In Louisiana, Orleans Parish Criminal District Court Magistrate Judge Harry Cantrell is tasked with setting a reasonable bond for the defendants who appear before him. His reasonable bonds have a floor. “We don’t go lower than $2,500 in this court,” he told a defense attorney in 2016. The average bond for a felony in Cantrell’s court is $10,000. In 2015, 87 percent of defendants in Orleans Parish Criminal District Court had to post bail. Of those, 97 percent used a bondsman.

This is a cozy little industry. Under Louisiana law, a small percentage of every bond contract with a bondsman goes back to the budgets of the court, the sheriff, the district attorney, and the public defenders. The Orleans Parish Criminal District Court pulls in about $1 million annually from this law, giving it “an institutional financial conflict of interest,” charges a lawsuit.

Most bondsman charge 10 percent of the set bond, which is not returned even if the charges are dismissed. For those who cannot post a bond, the only option is to wait in jail until their case is resolved. “The negative impact of jail starts to accrue after the first 24 hours, and it’s really bad by the third day,” said Cherise Fanno Burdeen, CEO of the Pretrial Justice Institute.

The main consequence is usually the loss of a job and inability to provide for family. Critics say “instead of using the bail system to keep the truly dangerous few in custody until their cases are decided, we use it to coerce guilty pleas. The result is that justice in our courts depends on wealth.”

A 2016 study analyzing 420,000 cases determined that those who gained pretrial release were 15.6 percent less likely to be found guilty.  “A dog doesn’t like being in a cage, so just picture a human being in a cage,” said Wilkeitha Washington, who was arrested on a cocaine possession charge in New Orleans. “I know that if I try to fight this, I could probably win.” Yet, Washington took a plea, so she could get out of jail to care for her four children. That is a major concern of plea bargains: People plead guilty but maintain their innocence.

Guilty While Innocent

A foundational aspect of America’s criminal justice system is that a jury must find the defendant guilty beyond a reasonable doubt. With SCOTUS’ decision in North Carolina v. Alford, 400 U.S. 25 (1970), the sanctity of that principle was diminished.

Henry C. Alford was unable to read or write when he was charged with first-degree murder in 1963. He was an African-American facing the criminal justice system at the height of the civil rights movement, and to assist him, a lawyer who was just a few years out of law school was appointed. While there were no eyewitnesses, there was strong evidence of guilt. At arraignment, Alford was expected to plead guilty, but he testified that he was only doing so to avoid the death penalty.

After some discussion, the court accepted the plea and sentenced Alford to 30 years in prison for second-degree murder. When the case came before SCOTUS, it ruled that there are two components to a guilty plea: the waiver of the right to trial and the admission of guilt.

The court found the latter was not a constitutional requisite to imposing a criminal sanction. As a result, defendants can enter so-called “Alford” or best interest pleas when they claim to be innocent but fear their chances of acquittal at trial are too risky.

Because Alford pleas are not categorized in court statistics, the frequency of their entry is difficult to quantify. In a 2000 report by Wolf Harlow that used a 1997 Survey of Inmates in State and Federal Correctional Facilities, it was estimated that 65,150 state prisoners (6 percent of the state prison population) and 2,472 federal prisoners (3 percent) entered Alford pleas. Research by the PBS NewsHour and Capital News Service identified more than 100 cases where suspects pleaded guilty, but there was strong evidence of innocence. The National Registry of Exonerations says 15 percent of exonerees pleaded guilty. If just 1 percent of the people who entered Alford pleas in the 1997 study were factually innocent, then 676 of those prisoners suffered a grave injustice in the name of keeping an overburdened and underfunded court system functioning.

Why would an innocent person plead guilty? “It seems crazy that an innocent person would plead guilty,” said Illinois attorney Dan Stohr, “but when you have been pushed around and ground down, that may seem like the best choice under the circumstances.”

There are a number of factors that contribute to such pleas. It starts with the cash bond system. If bond is set higher than people can post, they face months or even years in jail awaiting final disposition of their case. In cases involving misdemeanors or first-time offenders charged with low-level felonies, it is usual practice for the prosecutor to offer a sentence of “time served,” probation, community service, or the payment of a fine in return for a guilty plea that results in immediate release. Ironically, such offers often come immediately after the prosecutor argued that the defendant was a public safety threat that required an out-of-reach cash bond.

“The DA’s objective in making the bail so high and then raising it again when we came up with the original amount was solely to force a plea bargain. Then they keep dragging it out. They are not in it for justice, they were in it for statistics,” said Kevin Ocampo, who posted bond for his cousin in Alameda County, California.

“I’ve seen it. A time served offer on a custody defendant on a low-level charge, all they think about is, ‘Do I get out today? Can I get out today?’ We have to look at whether we are contributing to the problem,” said California Supreme Court Chief Justice Tani Cantil-Sakauye.

Then, there is what defense attorneys call the “trial tax.” Defendants who plead guilty almost always get lighter sentences than those who are convicted at trial. Prosecutors can wreak havoc on the life of a person who insists he or she is innocent and wants to exercise the right to a jury trial. Sentencing “guidelines, like mandatory minimums, provide prosecutors with weapons to bludgeon defendants into effectively coerced plea bargains,” wrote federal judge Jed S. Rakoff in a New York Books Review article.

Judge Rakoff said “[i]n the majority of criminal cases, a defense lawyer only meets her client when or shortly after the client is arrested, so that at the outset, she is at considerable informational disadvantage to the prosecutor.” By contrast, the prosecutor “will typically have a full police report, complete with witness interviews and other evidence, shortly followed by grand jury testimony, forensic test reports, and follow-up investigations.”

These sentencing weapons and informational advantages put the prosecutor in the driver’s seat. Indeed, in 11 states that advantage is enhanced because the law does not require prosecutors to disclose discovery materials such as videos, witness statements, and other key evidence until the eve of trial.

This often results in situations where people plead guilty to a crime they did not commit because they do not know what evidence prosecutors have against them. Some prosecutors see it the other way. “What the defendant may not know is the strength of the prosecution’s case, and therefore how likely it is that he can ‘beat’ the charges despite his guilt,” wrote three prosecutors in dissent to a New York Bar report advocating for expanded discovery procedures in criminal cases.

“When I was a cop, I always believed the criminal justice system was on the level,” said former New York City police detective Carlton Berkeley. “I’m embarrassed now to say that.”

Bronx nightclub bouncer Aaron Cedres learned firsthand how broken the system is when he was charged with gang assault, which carries 25 years in prison, during a scrum outside the bar in which he worked. The prosecutor said the video from outside the bar looked bad for Cedres when offering a guilty plea for a five-year sentence. Cedres insisted he only threw one punch to break up two men. The charges caused Cedres, who at 25 had no prior record, to lose his job, which left him homeless and forced his girlfriend and their infant daughter to move in with her mother. Those pressures and the threat of a long prison sentence had him considering the plea offer. Then, his attorney pushed to see the video. It corroborated his story, and the charges were dropped after 22 court appearances over 18 months. “Without that video, our guy was going to prison,” said Kristin Brian, Cedres’ attorney.

Another phenomenon is when the prosecutor becomes overconfident in his or her case as a result of the informational advantage. The only side of the story they have is contained in their case file, and they hardball the defense in negotiations by threatening more severe charges or charges against the defendant’s family members, the imposition of mandatory minimum sentences, or the death penalty. SCOTUS affirmed that prosecutors can threaten death or severe sanctions when in plea negotiations. In United States v. Kupa, 976 F.Supp 2d 47 (E.D.N.Y. 2013), the court noted that when defendants refuse to cooperate by pleading guilty, prosecutors threaten “sentences so excessively severe they take your breath away.”

“At some point psychologically, you go from figuring out what happened to figuring out how to prove it happened the way you said it did,” said Barbara O’Brien, a law professor at the University of Michigan who works with the National Registry of Exonerations. “It’s very difficult to take a step back from that.”

In cases where the science or legal theory behind the charges is novel or untested, the risks are heightened for the defendant. Thomas Knopp experienced this after he was charged in a Pasco County, Florida, court with the first-degree murder of an infant girl named Lindsey. The prosecution and medical examiner alleged the death was the result of shaken baby syndrome, which is a highly subjective cause of death that cannot be definitively proven by scientific testing. Knopp insisted Lindsey was suffering an earache on the evening he babysat her, and that resulted in complications that caused her death.

The case resulted in three jury trials. The first two were mistrials after the juries could not reach a unanimous decision. Knopp rejected plea offers prior to each trial, insisting he was innocent. On the eve of the third trial after five years in jail, the prosecution offered Knopp a plea to second-degree murder and a 15-year sentence, which with time served and good time would have resulted in release in about 18 months. Knopp continued to protest his innocence. “I am not pleading to killing a child when I did not do it,” he said. Knopp acknowledged that he had a prior criminal record and had entered pleas previously because he was guilty. The third jury found him guilty. He received a sentence of life in prison without the possibility of parole for 25 years.

A Conundrum

For the risk-adverse defendant, the prospect of such a sentence or even any sentence that carries prison time is intolerable. With such a weapon at hand, prosecutors are more often than not able to coerce a guilty plea. According to the National Registry of Exonerees, “almost three-quarters of homicide exonerees who pleaded guilty were convicted of murder.” The “great majority did so to avoid the risk of execution.” Of them, 70 percent falsely confessed.

“Almost all manslaughter guilty plea exonerations started as murder cases and were plea-bargained down to manslaughter.” By contrast, the harsher the penalty for homicide cases, the fewer the guilty pleas. The sweeter the prosecutor’s deal, the more likely a defendant is to accept the plea offer.

This can cause a conundrum for defense attorneys who believe they can prevail at trial for their client. “The idealist in you — the one who enrolled in law school to ‘change the system’ and to fight for justice on behalf of those who need it most — hopes your client will proclaim a decision to go to trial,” wrote public defender Jeffrey D. Stein in a Washington Post article. “But a wary voice in the back of your head reminds you of the risk and life-altering consequences of losing.” Thus, the innocent often enter an Alford plea, so they can move on with their life.
Federal Sentencing Guidelines include an incentive to plead guilty, as they include a credit for “acceptance of personal responsibility.” A lawyer can look at a table and inform the client that the recommended range for the prison sentence is 21 to 27 months if a guilty plea is entered, but there is a tax that will result in a range of 30 to 37 months if found guilty at trial. While the Guidelines reward guilty pleas, the U.S. Attorney’s Manual allows an Alford plea only after approval from the upper echelon of the U.S. Attorney General’s Office.

State courts, on the other hand, have no qualms about accepting an Alford plea even in cases where the defendant’s guilt is highly questionable or factually unprovable. The murder and rape case brought against James Owens and James Thompson exhibit the Hobson’s choice that defendants can face.

Owens and Thompson were convicted in the August 1987 rape and murder of a 24-year-old college student. Thompson confessed and implicated Owens. After trial, they were sentenced to life in prison. In 2006, DNA evidence exonerated them. As in most exoneration cases, there was misconduct by law enforcement or the prosecution. Prosecutors refused to drop the charges against either man, threatening to retry them if they did not enter a plea.

Owens rejected an Alford plea that would have resulted in his immediate release. He spent the next 16 months in jail awaiting his day in court to prove the state had the wrong man. On the day the trial was set to start in the fall of 2008, the prosecutor stood and said, “The state declines to prosecute.” Owens walked out of court an exonerated man after 21 years in prison.

His co-defendant, however, was more concerned with immediate release than with exoneration. Thompson’s case stalled in the courts until 2010, and as he watched Owens’ release, he became more anxious about his situation. The prosecution offered an Alford plea to second-degree murder with a 30-year sentence. After 23 years, Thompson was released. His freedom lasted a little over a year. He was accused of molesting his ex-girlfriend’s daughter and pleaded guilty to a misdemeanor charge for touching the girl’s buttocks. That landed him back in prison to serve the remaining seven and a half years on the murder charge.

While he was out, Thompson had a hard time finding a job. “I tried to explain I was wrongfully convicted, but people don’t want to hear that,” he said. “There’s no reasoning with somebody. ‘Innocent people do not go to prison’ is just the motto.”

In 2009, SCOTUS noted that “a frighteningly high percentage of people … confess to crimes they did not commit.” According to the Innocence Project, 28 percent of people later exonerated by DNA had falsely confessed. That many prosecutors pursue prosecutions with such exonerating evidence at hand is shameful. 

Most often, it is the poor who are wrongfully convicted. “It’s easy to prosecute those people and put them away and not think twice about it because no one is speaking for them,” said former Louisiana prosecutor Marty Stroud, who made headlines by penning a rare public apology in 2015 to a man who spent 31 years on death row for a wrongful conviction.

The only true closure a victim has is knowing that the perpetrator was caught and punished. Alford pleas appear to be a win on paper, but in fact, they are a loss for everyone, especially the victim. “In reality, everyone lost,” said Thiru Vignarajah, a former federal and Maryland prosecutor. “The victim sees no justice. The defendant is walking away with a conviction, and the prosecution didn’t get anyone to take responsibility.”

“Instead of focusing on me and getting me to take a deal for something I didn’t do, they need to focus on the victim. Her murder has never been solved,” said Owens. “I think they should go back and look and do something for this girl.”

In cases such as Owens’, the focus is mainly to avoid liability. That was clear in the case involving the West Memphis Three. Damien Echols, Jessie Misskelley Jr., and Jason Baldwin were convicted in Arkansas for the 1993 murders of three 8-year-old boys. They were convicted with what was later determined to be coerced confessions and questionable police work. There were no eyewitnesses or conclusive evidence tying them to the murders. Yet, they were found guilty. 

Misskelley and Baldwin received life sentences without parole, and Echols was condemned to death row. DNA testing exonerated the West Memphis Three in 2011.

Prosecutors, nonetheless, insisted they had enough evidence to reconvict the three, which kept them in jail. To assure their freedom, the West Memphis Three accepted Alford pleas. While that obtained their immediate release, it deprived them of the opportunity to seek compensation for their wrongful conviction, and left them as convicted murderers.

In such cases, compensation is usually $50,000 or more for each year of imprisonment. At that rate, prosecutors saved Arkansas about $2.4 million. The cost to the sense of true justice was immeasurable, but pundits say the case sent a message that playing hardball with defendants desperate for release is a winning strategy.

Playing hardball in plea bargaining also may involve threatening more severe charges to gain leverage in obtaining a conviction on someone suspected of committing other offenses. In Las Vegas, the threat of two murder charges being filed compelled a man to plead to attempted murder. Police set up a mannequin in an attempt to catch the killer of two sleeping homeless men. Shane Schindler, 30, was caught attacking the mannequin with a hammer and charged. He agreed to plea to the attempted murder charge in exchange for an agreement that the two murder charges would not be lodged against him. He was sentenced to eight to 20 years in prison. While there was no evidence he committed the murders, the fear that he could be found guilty and sentenced to death or life in prison based on the similar conduct of attacking the mannequin was not a chance Schindler was willing to take.

Plea bargains are criticized because they “undermine the integrity of the criminal justice system” by diminishing the burden of proof that must be met during the trial process. Of all the pleas that are entered, Alford pleas are the ones that are most contrary to the adversarial nature, which serves as the foundation of America’s criminal justice system.

Avoiding Plea Consequences

The consequences of a criminal conviction can amount to more than just a prison sentence. Over the past 40 years, the cost of a committing a violation of law has expanded beyond the seriousness of the charge or time to be served. Ten states disenfranchise felons from voting. Florida voters in November 2018 abandoned this Jim Crow-era provision in their state constitution and reinstated that right to all felons, except those convicted of murder and sex offenses, who have completed their sentences. 

Like many other states, Florida still prohibits felons from receiving certain career-specific licenses and has laws that restrict where sex offenders can live, work, and hang out. Then, there is the prejudice of the “box” that asks job applicants if they have been convicted of a felony. A conviction also can impact negotiations in a future criminal case. Some offenses require the automatic deportation of even permanent legal residents. For those convicted of sex crimes, there is the threat of having to register as a sex offender, which is then listed on a public registry. Federal law prohibits drug offenders from living in public housing or receiving federal student aid.

To avoid such consequences, many pleas are tailored to “sanitize” the defendant from the collateral consequences of a guilty plea. This is known as creative plea bargaining, and it was encouraged by Justice Stevens in Padilla v. Kentucky, 559 U.S. 356 (2010).

Padilla acknowledged the collateral consequences of a guilty plea and a defense attorney’s ability to plea bargain “creatively” to avoid those consequences. In that case, the court held defense counsel has an obligation to inform his or her client about the potential immigration consequences of a criminal conviction.

With plea bargains turning from the traditional issues of the seriousness of the charges and the sentence to the collateral consequences, defense attorneys are focusing more of their energy on mitigating consequences than on lessening the sentence. In fact, it is not uncommon for a plea to result in a greater sentence in return for a less severe charge or one that does not carry the collateral consequences of the original charge.

A “good deal” is a moving target that can vary from case to case, and this is especially so with sex offenses. “When I first became a public defender, I believed the worst punishment that my clients would face would be time in jail,” wrote Rachel Marshall in an article that appeared on “Since then, I’ve learned that incarceration is not the only — and perhaps not the worst — punishment the criminal justice system can impose. The registration requirements imposed on those convicted of sex offenses are unfairly harsh and punitive.”

Sanitizing the record is especially important in cases where immigration proceedings will follow the conviction. In an article that appeared in the Indiana Law Journal, University of Maine Law School Associate Professor Thea Johnson interviewed 25 public defenders who revealed how they engage in creative plea bargaining.

One attorney sought to include in the “factual basis” portion of the plea that a client was admitting to a single marijuana conviction that involved the single use of marijuana because such single use would not result in deportation. When the prosecution rejected such a stipulation, a plea agreement was reached on a different charge “that resulted in the client admitting only to “inhaling toxic vapors” on the record.

Obtaining an agreement to a charge with a different state of mind is not unusual. In Ohio, a local judge shed light on the issue by compiling a list of 400 felony sex offenses that were negotiated to non-sex crimes such as kidnapping and aggravated assault. A New York public defender reported having clients charged with the manufacture of a false ID, a deportable offense, so the attorney sought a plea to possession of a false ID, which is not a deportable offense.

Because a drug offense can result in families being excluded from public housing, public defenders try to obtain “fictional pleas” that will either result in noncriminal dispositions or charges for which the client was not originally charged, creating a “safe” plea that will not result in collateral consequences.

Of course, these types of pleas vary by jurisdiction. For instance, some locals have an “alienage-neutral” attitude while others have an “immigration-enforcement” model.

Other Plea Bargaining Problems

Kern County Deputy District Attorney Robert Allen Murray provided defense counsel with a transcript of the statement Efrain Velasco-Palacios gave to police when arrested in a 2013 child molestation case. Murray inserted the following exchange to the statement given to public defender Ernest Hinman.

[Officer Martinez]: You’re so guilty you child molester.

[Velasco-Palacios]: I know. I’m just glad she’s not pregnant like her mother.

After Velasco-Palacios denied making that statement, Hinman asked Murray about it. He claimed it was just a “joke” on the public defender.

The Kern County Superior Court, however, found it to be “outrageous” and “conscious-shocking.” The conduct was determined by the court to be a constitutional violation that required dismissal of the charges. The court and Court of Appeal found the statement was altered to influence plea negotiations. The California Bar agreed and suspended Murray’s law license for one-year.

Oklahoma County, Oklahoma, is a good example of using felony charges to push for convictions on lesser charges. In 2016, the county’s district attorney filed more than 10,000 felony charges, which is comparable to the amount filed in Queens and Manhattan combined. The caseload severely burdens the county’s understaffed Office of the Public Defender.

District Attorney David Prater makes clear that he enjoys the leverage he has, and that was evident in his criticism of a voter-approved referendum to reduce simple drug possession and petty theft from felony to misdemeanor offenses. “I don’t want to charge someone with a felony to put them in prison,” he said. “I don’t get off on that. There’s no benefit to society for doing that just for the sake of doing that. But if I say, ‘you’re going to go to prison for 10 years because I’ve now charged you with a felony for possession of methamphetamine,’ now are you going to go to treatment?”

At least Prater is honest about using charges to leverage for plea bargains. That is refreshing when you consider the “culture of negligence and outright dishonesty” that prevailed in New Orleans when Harry Connick Sr. was the district attorney. Louisiana courts have overturned 36 convictions as a result of New Orleans prosecutors failing to carry out their duties in accordance with the Constitution in obtaining convictions.

The most recent egregious example involved the case of John Thompson, who spent 14 years on death row. For years, prosecutors lied about a crime lab report that ultimately led to Thompson’s exoneration.

In another case, New Orleans prosecutors hid for 19 years a memo that undercut their position that Robert Jones was the accomplice of Lester Jones in a 1992 kidnapping, rape, and murder case. Despite the fact that their case has blown apart, prosecutors insist they will retry Robert Jones. Most likely, they hope to strong-arm him into an Alford plea.

Earlier, it was noted that many defendants enter into a guilty plea to avoid the trial tax. Corruption, such as that noted above that results in wrongful convictions or the hiding of evidence beneficial to the defense, are stories that also are passed along in the corridors of jails, placing fear into defendants. Real examples of the tax being assessed are in the back of their mind as the public defender or defense attorney relate the plea offer and the corresponding possibilities if conviction is obtained via trial.

In Lafler v. Cooper, 566 U.S. 156 (2012), the prosecution offered to drop two charges and agree to a sentence of 51 to 85 months, which the defendant agreed to accept in a letter to the court. After his attorney recommended that he reject the plea because they could prove at trial that the victim was shot below the waist and there was no attempt to murder, the offer was rejected. A conviction, however, was obtained on all counts at trial, and the court entered a mandatory minimum sentence of 185 to 360 months.

Prosecutors rely on this tax and use it to their advantage when playing hardball during plea negotiations. The tactics take several forms. There are “exploding offers” that put pressure on the defendant because the offer is good “today only.” Threatening to add a sentencing enhancement, such as the use of a gun during the commission of the crime or seeking habitual, career criminal status or a mandatory minimum provision, is common. Then, there are “take-it-or-leave it” offers.

Aaron Schwartz was presented with such tactics after he was charged with 13 counts of federal computer fraud and related offenses, which carried up to 50 years in prison and millions of dollars in fines. The charges came after Schwartz, who had no prior criminal record, used the network at Massachusetts Institute of Technology to download articles from the database JSTOR.

Schwartz, an activist for free information on the internet, intended to make the information freely available and never intended to sell or profit from it. While JSTOR was not “interest[ed] in this becoming an ongoing legal matter” because all the information was returned, the prosecutor wanted Schwartz to plead to several felony counts and serve six months in jail. Schwartz rejected the offer, and after 18 months in jail, he committed suicide. His family and friends argued the aggressive prosecution led to the suicide. That the prosecution sought charges that carried up to 50 years when it only sought a sentence of six months was cited as an example of prosecutors having too much unregulated power.

Marissa Alexander was charged in Florida with aggravated assault with a deadly weapon after she shot her gun in the air “one time” during a fight with her husband. She alleged he grabbed her neck and threatened to kill her. Before trial, the prosecution offered three years in prison without a gun enhancement. After she was convicted at trial, the court sentenced her to 20 years with a gun enhancement. Her conviction was reversed due to a burden-shifting jury instruction, and she took the three-year plea deal that was reoffered upon remand.

Because racism is inherent in some jurisdictions, African-American and Latino defendants are often presented with bad deals that are not presented to similarly situated white defendants. The offer also can vary based upon beliefs of the individual prosecutor. For instance, a prosecutor may have been the victim of a drunk driver and brings a belief in hard justice to the plea-bargaining table for defendants facing such charges. Defendants rightly feel they have no choice but to take the plea offer because the result will always be worse if a conviction occurs after a trial.

That is exactly what a federal prosecutor threatened Omar Burley with when he was facing charges after fleeing from members of the Baltimore Police Department’s elite Gun Trace Task Force. Burley, then 39, and two other people were parked on a residential street in northwest Baltimore when two cars pulled up beside them.

Three men with guns jumped out. Fearing a robbery, Burley mashed the gas. “I was speeding for my life,” he recalled. He eventually crashed into an elderly couple’s car, killing the driver, Elbert Davis. The gunmen turned out to be Baltimore police officers. Their arrest report said Burley was parked in a “meet location for drugs” and that he fled when they displayed their badges. The officers also said they found 32 grams of heroin in the car.

Burley insisted they were lying. The prosecutor offered him 15 years and threatened to seek the maximum if he took the case to trial. With that amount of heroin, a prior drug conviction, and the fatality in the case, Burley figured it was unlikely a jury would believe him over the police. “I’d never see the light of day,” he said, “or I would be coming home a very old man.”

Feeling he had no other choice, Burley took the 15-year plea in 2011. He sat in prison for seven years before a federal investigation revealed that eight officers on the Gun Trace Task Force had been robbing people, planting drugs and guns on them, and lying on police reports to cover up their crimes.

Sgt. Wayne Jenkins admitted as part of his own plea agreement that he arranged to have the heroin planted in Burley’s car. Burley was the first of 105 people who pleaded guilty and later had their convictions voided. Nearly all of them were black men.

“When you have a system where a small percentage of cases are actually tried and subjected to the adversarial process, it is much less likely that this kind of [police] conduct is going to be detected and exposed,” said Michele Nethercott, director of the University of Baltimore’s Innocence Project Clinic. “Everyone can hide their mistakes.”

The case reveals a major flaw with the acceptance of pleas, as the police report is used to not only set the bond amount, it is often used as a factual basis to support the charge. “The police report describes the witness said this, the witness said that, this is what the scene looked like. No one is testing the veracity of that,” Nethercott said. “We’re adjudicating on basis of police reports … That’s completely at odds with an adversarial system where you test evidence through questioning on the witness stand.”

Additionally, overcrowded jails can create coercion to enter a plea. The Cook County Jail was so full when brothers Juan and Henry Johnson returned for a retrial that over 1,000 detainees were forced to sleep on the floor. “So many people plead guilty in Cook County just not to live in that jail,” said Juan Johnson.

Pleas can often result in buyer’s remorse, causing the defendant to seek withdrawal of the plea. The problem for such defendants is that most innocence projects do not accept cases where a guilty plea was entered, and the barrier for relief is high. In federal court, there must exist a “fair and just reason” for withdrawal of a plea. Courts are adverse to such a finding, believing in the finality of judgments. So long as it can be found that the defendant “intelligently and voluntarily” entered the plea with an “understanding of the consequences,” courts deny relief.

This occurs even in cases where the victims support the defendant’s request. James Earl Ray pleaded guilty to the assassination of Dr. Martin Luther King Jr., on March 10, 1969. He sought to withdraw his plea on grounds that his attorneys were ineffective, and they had a conflict of interest due to a representation agreement that gave the attorneys a financial interest in the sale of a book and possible movie. Despite the King family’s support of Ray’s petition, it was denied because the court found Ray understood the charges and the consequences of the plea, making it voluntarily entered.

Another problem with plea bargains are the underfunded and understaffed public defender cases. It is not unusual for those attorneys to have twice the recommended caseloads. They do not, in most cases, have the time or resources to investigate claims of innocence. Defendants who cannot afford counsel due to poverty have no other real option than to accept the best deal presented them.

Plea Bargain Remorse

Immigrants have become the focus for federal prosecutors under the government’s effort to slow illegal immigration. They are pushing a hardline strategy in plea negotiations that can cause plea bargain remorse. Former Attorney General Jeff Sessions ordered prosecutors to have defendants who would later face immigration proceedings sign plea agreements that say they have “no present fear of torture” upon returning to their home country.

The directive is aimed at creating an end around immigration courts and reduce their caseloads.

“Obviously, I have seriously grave concerns about eliminating the small level of due process that’s afforded to immigrants in immigration court,” said attorney Susan Church. “They absolutely should not be proposed as part of a plea agreement.”

“Plea bargaining, like torture, is coercive,” wrote Yale Law School professor John Langbein in the 1970s. 

Torturous is how the life of Henry Johnson can be described after he decided to plead guilty to murder. Henry and his brother Juan were both convicted of killing a Chicago gang member during a large brawl on September 9, 1989.

The brothers were convicted after a bench trial and sentenced to 30 years. After serving 11 years, evidence was uncovered that Chicago Police Detective Reynaldo Guevara framed them. As they were awaiting the new trial to start, they were presented with a plea to second-degree murder that would result in time served.

Henry turned to Juan and asked what he was going to do. “I looked at him and I told him, ‘I love you, but you have got to make this decision on your own. I can’t live with that decision.’” 

Henry pleaded guilty. Juan went to trial. During deliberations, he had second thoughts about his decision. “Juan was melting down when the jury was out,” Stohr recalled. “If he could have, he would’ve changed his plea at that moment to guilty because he was so frightened.”

The jury acquitted Juan. He subsequently sued the City of Chicago and received a $16.4 million settlement. Henry, meanwhile, is a convicted murderer and he “is going through hell,” his mother, Nilda Moret, said.

A spokesman for the Justice Department, Devin O’Malley, said such plea provisions “increase the efficiency of the immigration court system, save Americans’ tax dollars, and promote good government.” Thomas Jefferson would probably call a policy that results in people giving up their constitutional right to trial and admitting to acts they did not commit tyranny rather than good government.

Federal judge Rakoff said we need a new system to oversee pleas, and he suggested involving a magistrate judge in the matter to keep the trial judge from being influenced before adjudication. “I am under no illusions that this suggested involvement of judges in the plea-bargaining process is a panacea,” he said. “But would not any program that helps to reduce the shame of sending innocent people to prison be worth trying?”

Economy through quick disposal of cases is the main reason cited for continuing the plea bargaining procedure in the criminal justice system. It has been argued by academics that when government is strong it affords “the luxury of a more deliberate justice, [and] the balance shifts and the accuracy of the procedure is improved to better protect the innocent at the expense of efficiency in the conviction of the guilty.”

As Chief Justice Warren Burger wrote in 1971, “An affluent society ought not be miserly in support of justice, for economy is not an objective of the system.”

“The stakes were too high, so I folded,” said Burley after he was exonerated. “I was happy and stuff, but I was still thinking about, you know, I felt I was lucky. I still was thinking about all the other people that has [been] put in my situation [and] forced to plead out the cases that wasn’t actually guilty.” 


Sources: The American Prospect, Anchorage Daily News, The Atlantic, Capital News Service, Behavioral Sciences and the Law, The Guardian, Journal Inquirer, Huffington Post, The Intercept, The LA Times, National Public Radio, New York Review of Books, The New York Times, The New Republic, PBS NewsHour, ProPublica, Slate, Review of Law and Social Justice, The Social Science Journal, The Washington Post, Human Rights Watch, Injustice Watch, The Marshall Project, National Registry of Exonerations, The Vera Institute, Pace School of Law, William & Mary Law School, Boston College Law Review, Harvard Law Review, Indiana Law Journal, Nevada Law Journal, Stanford Law Review, The Yale Law Journal

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