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Inextricably Intertwined: The Practice of Negotiated Pleas and the Rise of Mass Incarceration in America

by Casey J. Bastian

America is the world’s leader in rates of incarceration. This country consists of only 5% of the world’s total population, yet it houses about 25% of the world’s prisoners. As of 2021, there were actively more than 2.1 million people in jails and prisons in the U.S. Is America truly the land of the free? Either there are serious problems with the quality of its people, or America has a criminal justice problem. Statistics and decades of research firmly suggest it is the latter.

The incarceration rate in this country exceeds that of Western European democracies by an astounding 700%. America’s rate is 665 per 100,000 people; much higher than “authoritarian” nations such as Russia (402), Iran (284), and Saudi Arabia (197). The U.S. imprisons more people for much longer periods of time for reasons that have nothing to do with divergent rates of crime. The real question is: Why? The devil is in the details.

The why is likely a result of negotiated pleas in criminal cases. Although it is often referred to as plea “bargaining,” there is rarely any bargain in it for either the defendant or society writ large. America leads the world in plea bargaining and is more dependent on this prosecutorial mechanism than any other nation in the world. It can hardly be a coincidence that America is the leader in both arenas.

To examine this disturbing phenomenon more closely, Albert W. Alschuler wrote “Plea Bargaining and Mass Incarceration” (“Study”). Alschuler is a Julias Kreeger Professor Emeritus at the University of Chicago Law School, publishing this latest Study in the NYU Annual Survey of American Law in 2021. Alschuler has been writing about plea bargaining-related issues since the early 1970s. The Study notes that of those 2.1 million incarcerated at the time, 97% of all federal felony convictions, and 95% of state felony convictions, are the result of guilty pleas. As such, negotiated pleas are a primary driver of mass incarceration for a variety of reasons. When you combine this mechanism with new sentencing laws and developments that have increased prosecutorial power, it produces “skyrocketing imprisonment.”

Prosecutors in the U.S. have adopted this process to such a degree that if plea bargaining ceased, the wheels of justice would grind to a halt. There is just not enough time in a day to conduct trials for as many criminal convictions as there are currently secured. Worse, negotiated pleas have proliferated more severe sentences as well. Many defendants plead guilty for a variety of reasons, but the primary reason is a belief that they will receive a “reduced” sentence. And if you consider the reality of the “trial penalty,” there is reason for them to believe it. Specifically, in federal courts, the imposed sentence is generally one-third that of those imposed after trial. It’s not, however, for the reasons many people believe to be true.

We cannot treat sentences imposed after trial as the baseline, as these sentences are inflated to induce guilty pleas. Post-trial sentencing is often severe so as to dissuade the next defendant from exercising their constitutional right to have the government prove its case. Evidence demonstrates that the typical sentence imposed after guilty pleas are not more lenient; they are just less than post-trial sentences.

Justice Scalia of the U.S. Supreme Court described plea bargaining as a way to “beat the house, that is to serve less time than the law says [an offender] deserves.” In another case, a Justice quoted Professor Rachel Barkow, who said, “[Defendants] who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes.” Inflating post-trial sentences to induce guilty pleas is not an occasional thing—it is systemic.

Take the anecdotal story by attorney Dallin Oaks. When Oaks was a young attorney, he was appointed to represent an indigent defendant who had been charged with a narcotics offense carrying a mandatory minimum 10-year sentence. In a pretrial conference in the judge’s chambers, the prosecutor told Oaks that his client could receive a lesser charge and a sentence of only two-to-five years if there was a guilty plea. When Oaks hesitated, the judge said, “I’m not going to tell you what to do, young man, but I can tell you what I’ll do. If your client goes to trial and is convicted, the minimum term will not be just the ten years required by the statute. The minimum will be twenty years in the penitentiary.” Pausing, the judge then added, “He takes some of my time—I take some of his. That’s the way it works.” And that was written in 1976.

Is it reasonable to actually believe that all of the defendants sentenced after negotiating a guilty plea are receiving punishments less than they deserve or “beating the house”? As Alschuler puts it, “Do you believe the United States achieved its record for mass incarcerations while punishing 95% of all offenders too lightly to accomplish whatever-on-earth it is that criminal punishment is supposed to accomplish?”

In 2003, Gerard Lynch commented that, “Given the extreme severity of sentencing in the United States by world standards ... it is hard to take seriously the notion that ninety percent of those serving our remarkably heavy sentences are the beneficiaries of ‘bargains.’”

What may have begun as a method to increase judicial economy has clearly turned into a conviction machine that increases both the number of sentences imposed and the length of those sentences. It is readily observed that creating an increased punishment for standing trial and losing strongly motivates people to willingly abandon that constitutional right. People appear to be punished not just for interfering with judicial economy but for simply demanding their constitutional right to trial. And if a post-plea sentence, no matter that it may be greater than necessary to achieve the stated goals of the criminal justice system, is deemed appropriate, post-trial sentences that include a virtual tariff is inevitably going to increase aggregate sentences arising from any conviction.

Harsher sentences are only part of the story. Negotiated guilty pleas allow for more cases to be filed; those that would typically end in acquittal and those that are so weak they normally ought not to have been filed at all. This also increases the likelihood of convicting the innocent. In 2016, Alschuler wrote a previous report discussing this issue called, “A Nearly Perfect Device for Convicting the Innocent.”

Courts can process cases more quickly, and a vicious cycle is proliferated. In other words: “The machinery for mass-producing imprisonment orders just keeps running.” Many supporters of this process claim that the primary virtue of plea bargaining is that it “provides more punishment bang for the buck.” These proponents of the negotiated plea—judges, lawyers, and legal scholars—focus only on the cost of producing sentencing orders while neglecting to consider the cost of carrying these orders out. As the cost of imposing punishment has been reduced “plea bargaining has given America more of it.”

In other words, as noted by William J. Stuntz in The Pathological Politics of Criminal Law, “[A]ll of us tend to respond to price changes: we do more of something when it becomes cheaper and less when it becomes more expensive.” The truth is that there is no small cost when destroying adherence to constitutional rights and treating human beings as objects of barter. Nor is the fiscal cost of mass incarceration a small matter. Just on a local and state level, in the early 1980s, spending on jails and prisons was $6 billion per year; by 2013, the costs had ballooned to a staggering $80 billion. Between 1985-2000, state and federal governments were opening one new prison per week on average. America had literally engaged in a “race to incarcerate.”

The imprisonment rate in America had changed little from the late 19th Century until 1972. Beginning in 1972, this rate rose six-fold in 36 years, going from 93 per 100,000 to a whopping 536 per 100,000 in 2008. This is just people in prisons; it does not account for people in jails or detained in other institutional settings. There is not reliable data pre-1970s for jail incarceration rates, but by 2007, including jail populations, increased the overall incarceration rate to 767 per 100,000. While the prison incarceration rate has been reduced slightly to 498 per 100,000, this rate is still five-times higher than 1972 levels. So, what happened in the early 1970s? Plea bargaining was legitimized.

Plea bargaining was becoming de rigueur by the early 20th Century; however, it was still disapproved of by appellate courts. Crime commissions in the 1920s were “aghast” at the phenomenon, decrying the practice as “prosecutorial corruption.” While the practice was given judicial support in the 1950s and 1960s, it was still considered “seedy, unbecoming,” and “illegal.”

“Justice and liberty are not subjects of bargaining and barter,” wrote a Fifth Circuit jurist in 1957. In 1965, the Sixth Circuit wrote that “a plea of guilty induced by a promise of lenient treatment” is “involuntary” and “void.” By the mid-1960s, plea bargaining remained disreputable. The American Bar Association Standards for Justice commented on what would later be called a “pious fraud,” referring to the obfuscated denials stated solely for the judicial record that no “promises, threats, or inducements had influenced the plea.”

The push to make negotiated pleas “open, respectable, and commended” began in earnest between 1968 and 1972. The President’s Commission claimed that negotiated pleas can “bring flexibility to the disposition of offenders.” In the 1970 case of Brady v. United States, 397 U.S. 742 (1970), the Supreme Court upheld the constitutionality of this practice, departing from earlier opposing standards. And in 1971, the Court called it an “essential” and “highly desirable” part of the criminal process “for many reasons.” Santobello v. New York, 404 U.S. 257 (1971).

 The stage was set to subvert rights, foreclose trials, and increase punishments. Welcome to mass incarceration. The early 1970s ushered in an era of increased prosecutorial powers. In fact, it became a seemingly coordinated effort among politicians, legislators, prosecutors, judges, and even some defense lawyers to fill their prisons as quickly as possible and for whatever reason they saw fit.

In 1964, presidential candidate Barry Goldwater first made crime a national issue. Richard Nixon won election in 1968 by railing against the “criminal forces,” beginning the “War on Crime” siege mentality—pitting lawmakers against American citizens. Nixon was able to transform the Supreme Court with appointees. Pro-defense constitutional jurists were replaced, and the Court afforded increased leverage to prosecutors. The lists of decisions limiting the exercise of real-world constitutional protections became too expansive to list here.

Congress got in on the act as well. Between 2008-2013, Congress approved an average of 80 new federal crimes per year. The PROTECT Act, RICO Act, Armed Career Criminal Act, the Antiterrorism and Effective Death Penalty Act, and the infamous “1994 Crime Bill,” just to name a few, broadened federal prosecutorial powers and added to the list of crimes that could be charged federally.

Stuntz wrote, “[T]he story of American criminal law is a story of tacit cooperation between prosecutors and legislators, each of whom benefits from more and broader crimes,” This American-style of over-criminalization is unlikely to change “as long as plea bargaining is the criminal justice system.”

Congress also passed the Sentencing Reform Act of 1984, abolishing federal parole and creating the United States Sentencing Commission. The USSC was to create sentencing guidelines “at or near the maximum term authorized,” while “minimiz[ing] the likelihood that the Federal prison population will exceed the capacity of the Federal prisons.” And that has failed spectacularly.

As it stands today, only a very small group of defendants exist who are willing to risk the trial penalty and forego plea bargaining. In 1962, there were 24,000 federal prisoners and 5,097 criminal trials. In 2017, there were 186,000 prisoners and only 2,123 trials.

The statistics are eerily similar in state-law criminal justice systems. Between 1994 and 2008, in the 34 states that provide reliable data, crime and arrest rates fell. Yet the number of felony cases filed by prosecutors rose from 1.4 million to 1.9 million. The Study notes that “the number of people admitted to prison rose by about 40%, from 360,000 to 505,000, and almost all of that increase was due to prosecutors bringing more and more felony cases against a diminishing pool of arrestees.” Prosecutors had learned that the leverage of a “trial penalty” sentence can induce nearly everyone charged to plead guilty to something. Convictions at any cost is the mindset of today’s prosecutors. When the cases filed grow weaker, but the conviction rate increases, “a reasonable inference is that prosecutors’ bargaining power has grown a lot.”

A secondary issue arising from negotiated pleas and increased prosecutorial power are sweeping plea waivers. Initially, plea bargaining was only about securing more convictions cheaply and quickly. But that wasn’t enough. Now, defendants are waiving appeal rights, access to exculpatory impeachment material, Freedom of Information Act records requests, compassionate release, and other various rights due to language that is becoming “boilerplate” within plea agreements and only benefits the government. There is no bargain in it for the defendant. Will they next have to waive the right to counsel or waive the right to be free from cruel or unusual punishment?

A judicial mechanism that once seemed reasonable has “become one in which no one gets a break, exercising your right to trial is a crime, and imprisonment rates set a record.” More prosecutorial power, more convictions, longer sentences, more prison, and fewer rights—plea bargaining always looked like it might be a bargain with the devil. And it is turning out just how such bargains usually do. 

Source: New York University Annual Survey of American Law, Vol. 76, No. 2

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