Plead Guilty — Or Else

Monday, September 26, 2011

This excellent article from today’s New York Times highlights one of the nastier sides of mandatory minimum sentencing laws: their ability to scare people into giving up their constitutional rights and pleading guilty.

Of course, that’s why prosecutors love them: threaten a defendant with a long, mandatory sentence, and he’ll probably cooperate, plead guilty, and skip a trial — meaning less work for everyone, judge, jury, and prosecutor…and less justice, especially for those who might be innocent but don’t want to roll the dice with a jury.

In short, your favorite courtroom TV drama is a work of fiction, because virtually everyone pleads guilty these days — or else. Mandatory sentencing laws and harsh guidelines are largely to blame.

The problem is so well-known it even has a name — the “Trial Penalty” — but because plea bargaining isn’t made public or tracked, it’s difficult to verify how widespread it has become, or to hold prosecutors accountable for abuses:

The phrase refers to the fact that the sentences for people who go to trial have grown harsher relative to sentences for those who agree to a plea.

In some jurisdictions, this gap has widened so much it has become coercive and is used to punish defendants for exercising their right to trial, some legal experts say.

“Legislators want to make it easy for prosecutors to get the conviction without having to go to trial,” said Rachel Barkow, a professor of law at New York University who studies how prosecutors use their power. “And prosecutors who are starved for resources want to use that leverage. And so now everyone acts with the assumption that the case should end with a plea.”

“When you have that attitude,” she said, “you penalize people who have the nerve to go to trial.”

Prosecutors say they are giving defendants options and are merely charging them based on what is allowed under the law for those who turn down pleas.

While legal experts say the effect is clear in persuading more defendants to forgo trials, the trial penalty is hard to quantify without examining individual cases and negotiations between prosecutors and defense lawyers.

That is because threats of harsher charges against defendants who reject plea deals often are the most influential factor in the outcome of a case, but this interplay is never reflected in official data.

“How many times is a mandatory sentence used as a chip in order to coerce a plea? They don’t keep records,” said Senior Judge John L. Kane Jr. of United States District Court in Denver, who believes that prosecutors have grown more powerful than judges. But it is very common, he added. “That’s what the public doesn’t see, and where the statistics become meaningless.”

But one result is obvious, he said: “We hardly have trials anymore.”
Plea bargaining isn’t the only area where prosecutors have power that is both awe-inspiring and unchecked. Mandatory minimums also give prosecutors control over sentencing.

The transfer of power to prosecutors from judges has been so profound that an important trial ritual has become in some measure a lie, Mr. deVlaming said — the instructions judges read stating that the jury determines guilt or innocence, and the judge a proper sentence. The latter part is no longer true when mandatory minimums and, in many cases, sentencing guidelines apply, but jurors often do not know that.

Legal scholars like Paul Cassell, a conservative former federal judge and prosecutor who is now a law professor at the University of Utah, describe the power shift as a zero-sum game.

“Judges have lost discretion, and that discretion has accumulated in the hands of prosecutors, who now have the ultimate ability to shape the outcome,” Mr. Cassell said. “With mandatory minimums and other sentencing enhancements out there, prosecutors can often dictate the sentence that will be imposed.”
So, what kind of justice system is this? If prosecutors can use mandatory minimums to stop people from going to trial and to stop judges from actually sentencing, what are we paying judges for?

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