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albert alschuler
We have no way of reviewing a lawyer's performance in the back rooms, where plea bargaining occurs,  in conferences with client.  So we insulate the attorney from effective review at the same time we make him the most important figure in the system.

What's good about plea bargaining?

I think nothing is good about plea bargaining. I mean, sometimes it can have a good effect. It can get you out from under some horrible mandatory minimum sentences and from some bad federal sentencing guidelines. But I could go on for the entire interview talking about what's wrong with plea bargaining.

We could start with the sentences that it leads to. The mark of a good legal system is that it minimizes the effect of tactical choices on its outcomes. What sentence a guy gets should depend on what he did, or maybe on who he is, but not on whether or not he's exercised a tactical decision to exercise a right or not to exercise a right. You have two people who've committed the same crime. They have the same background, and one is going to get twice as severe a sentence as the other because he's exercised the right to trial. I think it's a perfectly designed system to produce conviction of the innocent.

There's two kinds of plea bargaining. There's cost bargaining and odds bargaining. Costs bargaining is where the prosecutor bargains to avoid the economic costs of a trial. Odds bargaining is where the prosecutor bargains because he thinks he might lose the trial, and he figures half a loaf is better than none. Every prosecutor will avow that he does both kinds of bargaining.

So you have somebody who is facing 10 years at trial, but there's only a 50 percent chance he'll be convicted. So the prosecutor who is in engaged in odds bargaining offers five years in exchange for a plea of guilty. Well, that's not going to work, because the prosecutor doesn't want there to be a trial. This is an offer that leaves the defendant indifferent between pleading guilty and standing trial. So the prosecutor starts with the odds bargaining, then adds something of the cost bargaining. He calculates his offer not to balance, but to overbalance the defendant's chances of acquittal.

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Albert Alschuler is a professor of law and criminology at the University of Chicago. In this interview, he offers an overview of the moral, judicial and constitutional implications of relying on plea bargains to deal with the vast majority of felony cases, and he suggests three ways to help fix the system. "I think most people in the legal profession think plea bargaining is just fine," he tells FRONTLINE. "It's in the interest of prosecutors and defense lawyers and judges, and they've devised elaborate rationales for this process. I don't think any of the rationales make sense, and I think that makes me a maverick." This interview was conducted on Jan. 16, 2004.

Meaning?

Meaning that it is to every defendant's advantage whether guilty or innocent to accept the plea.

What about truth? And justice?

Well, it's a system that's designed to keep the truth from coming out. We don't care enough in the American criminal justice system to listen to the defendant's story. We do everything possible to avoid having an impartial party sit there and hear both sides and decide who's telling the truth.

We have a system that makes the defendant half guilty. There's a 50 percent chance that he'll be convicted at trial. Let's give him 50 percent of the sentence he would have if he were really guilty, so it's half guilty.

That's what I think the public doesn't like about plea bargaining. Most people think that either he did the crime or he didn't, and if he did the crime, you should give him the sentence that an honest-to-God criminal should receive. And if he didn't, he shouldn't be punished at all. Or even if he did it but you can't prove it beyond a reasonable doubt, he shouldn't be punished at all. …

[The plea bargaining system is] inconsistent with the law that we apply to waivers of other rights. What do you suppose would happen if a prosecutor said to a defendant, "Well, you can exercise your right to be represented by a lawyer. But if you're convicted with a lawyer representing you, we'll give you 10 years, and if you represent yourself, we'll give you five."

If the guy waives his right to a lawyer, would you consider that a voluntary waiver? What if they offer him a lighter sentence if he agrees not to challenge the racial composition of the jury or agrees not to cross-examine the witnesses against him? Nobody would regard a waiver of those rights as voluntary, and yet somehow we put on blinders and permit a bargaining for a guilty plea that waives all of those rights and more.

Is it coercive?

It's extraordinarily coercive. As I say, you'd certainly regard it as coercive if the prosecutor offered concession to waive another right, the right to an attorney or the right to challenge the racial composition of the jury. We just depart from our usual standards of coercion when we're talking about the most pervasive waiver, the most complete waiver that our criminal justice system permits.

Do you have to lie in order to plea?

I think the courts are divided on that. The United States Supreme Court said in a case called Alford v. North Carolina that it's perfectly constitutional to accept a plea of "Guilty but not guilty." That is, the defendant can say, "I didn't do it, but I want to take the deal," and the judge can say, "OK," which means that it's not necessary for an innocent person to lie to take the deal. He can say he's innocent and still take the deal.

What do you make of that?

I think it's hard to imagine a clearer denial of due process than sending someone to prison who hasn't been tried and who hasn't admitted his guilt. But the Supreme Court of the United States says that's OK. …

[However,] a great many judges do not accept these Alford pleas, and do insist on a confession from the defendant. … But it's usually a hypocritical show. It's a coerced confession. The defense lawyer goes out and confers with his client and gets his lines right. They go back in and they put on a better show for the judge, and the judge accepts the plea. … You can sort of satisfy your conscience with this salve of "I made him say he did it." And he's saying, "Well, OK, you son of a bitch, if I've got to say I did it to take the deal, I'll say it. Do you feel better now?"

What's the biggest downside to plea bargaining?

The downsides are innumerable. We're producing unjust sentences. We don't know the truth. We're putting pressure on the innocent to plead guilty. We're violating our usual standards of waiver. It's a hypocritical system that produces all kinds of evil.

In terms of defendants' perceptions of the system, it encourages the view that the system is all a matter of networks and connections and who do you know and what kind of deal you make. That isn't the image offenders should have of the criminal justice system; that's probably the view of the world that got a lot of them into trouble in the first place.

What do you say to those who argue that plea bargaining is necessary?

The bottom line argument for lots of people is, "OK, it may be unfair, but it's necessary. We'd have to have a courtroom for every filling station if we tried to implement the right to trial [for every defendant.]" I think that's a kind of a shocking idea. Our president thinks we can send a manned mission to Mars at a cost of $500 billion, and yet we have a justice system that doesn't think it can afford to give defendants the most basic of their rights -- the right to be heard in court? Something is wrong with that picture. Most nations of the world poorer than ours manage to implement the right to trial. There has to be a way for us to do it too.

How can the judge know whether to accept a plea bargain?

As I say, some judges won't take one of these pleas of guilty but not guilty, and will insist that the defendant make a full confession and make a show of rejecting the confession occasionally -- very occasionally -- if the judge is not convinced. … The judge rarely, in fact, forces the case to trial. When the judge does force the case to trial, the defendant may be convicted and may receive the tough sentence that's reserved for trial.

What makes the system go is the fact that sentences after trials are much more severe than sentences following pleas of guilty. So you're talking about a situation in which the defendant says, "I want the light sentence," the prosecutor says, "There's no reason in the public interest not to accept the light sentence," and the judge, to prove his independence, forces the defendant to stand trial and possibly get socked.

Whom does the system benefit?

I once talked to a congressional staffer and said, "Maybe you should think about legislation to get rid of plea bargaining." He said, "Oh, that's impossible. We'd have the prosecutors against us, we'd have the defendants' lawyers against us, we'd have the judges against us." I said, "Yes, and who else?" It's a system that's wonderful for prosecutors, defense attorneys, and judges. It's not good for victims of crimes, it's not good for criminal defendants, and it's not good for the public.

What about people who refuse to plead guilty?

I was peripherally involved in a case in Illinois where the defendant had been on death row for 12 years. His conviction was reversed. At this point, the prosecutor had no evidence against him, so the prosecutor went to him in the Cook County jail and said, "If you will plead guilty to murder -- you've already served 12 years on death row -- we will sentence you to the time you have already served, and you can be home for Christmas." The defendant, who was later proven innocent through DNA evidence, said, "I didn't do it, and I'm not going to plead guilty to it." He sat in the worst part of the Cook County jail through the holidays and eventually was exonerated. He was a courageous fellow. Could I tell him to do that? No. …

I think it has to be somebody's decision when they're confronted with one of these coercive offers, even if they have to lie, even if it's a judge who will not let somebody plead guilty who says that they're innocent. If somebody puts a gun at your head and says, "Confess or I'll shoot you," I think you're entitled to say, "I did it," even if you didn't. Similarly, if somebody threatens to give you an extra 30 years in prison unless you lie, I think you're morally entitled to lie. But I think it's more courageous morally to insist on the truth, even if you pay a terrible price.

Would you do that?

I don't know. I rather doubt it. …

What is the difference between court-appointed lawyers and paid lawyers, in terms of incentives and conflicts?

The plea bargain system is rife with conflicts of interest for both private lawyers and appointed lawyers. The usual way of collecting a fee in a criminal case is to be paid a lump sump in advance. Your client may not be around later to pay you, so you can't just send him a bill for the number of hours you have spent. Once the lawyer has pocketed his fee, it's obviously to his economic advantage to plead the defendant guilty, to find a way to get the defendant to enter a plea agreement. There are lawyers throughout America who virtually never try a case, who get rich by handling a large volume of cases for low fees, and the way to do that is not to try cases, but to plead defendants guilty.

Court-appointed attorneys in the state of Texas face a similar dilemma. There's a cap on the fee they're going to get from the state. These are poorly paid assignments, and these are lawyers who have other cases of their own that are lucrative cases. They want to spend more time on the lucrative cases, so they, too, have an interest in encouraging defendants to plead guilty. …

What is the argument in favor of the plea bargain system?

Well, they make several defenses of the system. I think the most prominent one now is, "Everybody consents." The prosecutor is representing the public interest, and he thinks this bargain will serve the public interest; the defendant has decided the bargain will serve his interest, and who's left? As long as the prosecutor and defendant think it's a good deal, it's got to be a good deal for both of them.

You also hear the argument that, "Oh, gee, the defendant deserves credit for saving the state money," or "Maybe the defendant is remorseful, and so therefore he should have a lighter sentence." The bottom line argument really is necessity. Even though we're one of the richest nations in the world, we cannot afford to give our criminal defendants their day in court.

Often defendants who plea will be given probation. Is this really a break?

No, it's a serious penal sentence. There will be various restrictions on your liberty. There will be an obligation to report. There will be conditions: You may not associate with these people; you may not go to places where alcohol is served. Lots of restrictions, and you can be sent to prison if you mess up on any of these conditions. …

[Probation] was designed to provide corrections in the community for some offenders, and that's not a bad idea. It was designed to be a sentence, just like a penitentiary sentence. This was part of the progressive movement early in the 20th century. The talk was all of rehabilitation. This would be a better way to rehabilitate people.

It's changed. One of the important functions of probation was to prepare a pre-sentence investigation report, so that the judge would know something about the person she was sentencing. Well, they still prepare a pre-sentence investigation report, but only after the case has been effectively resolved through plea bargaining, so that it's essentially a fifth wheel. It doesn't have much effect.

How does plea bargaining connect to justice?

Plea bargaining has nothing to do with justice. It has to do with convenience, expediency, making the life of prosecutors and defense attorneys easier and more profitable. It's designed to avoid finding out the truth. It's designed to avoid hearing the defendant's story. I mean, what's a more basic component of justice than if you're going to lock somebody up, you ought to hear whatever he has to say in his defense first? Isn't that the most basic element of procedural justice? If you have something to say, if you have a story to tell, we want to hear it. We don't want to punish you unless we're convinced that you've done something wrong. …

So plea bargaining makes the system opaque.

Sure. The justice is administered in America in courthouse corridors and behind the closed doors of prosecutors' offices. That's where it all happens. I mean, the Supreme Court insists that the press has the right to attend criminal trials, because knowledge of how our justice system works is so important for the public. But in fact, when 95 percent of the convictions are by guilty plea, the public is excluded from seeing how the sausage is made. …

Do defendants understand how the sentences work?

If they have good lawyers they do, but many don't have good lawyers. It all goes by very, very quickly. In a New York City court, a judge may make an offer and give the defendant 15 seconds to decide whether to accept it. If the defendant doesn't look happy, the judge will say, "Hmm, the defendant doesn't look happy. Tell him, Mr. Lawyer, it's going to go up next time. He's going to get two-to-four [years] if he's smart, and four-to-eight [years] if he's dumb." And you make a hurry-up decision that has enormous consequences.

The sentencing system can be confusing. Good lawyers and judges do explain it. … But one of the problems with plea bargaining is it depends so much on the quality of the lawyer you have. We have a justice system that makes justice more dependent on the quality of a defense lawyer and on how much money he has than any other legal system in the world. We have no way of reviewing a lawyer's performance in the back rooms, where plea bargaining occurs, and in conferences with his client. So we insulate the attorney from effective review at the same time that we make him the most important figure in the system.

It's a wonderful system for lawyers and defense lawyers and prosecutors. It's so much easier to sit in an overstuffed chair drinking coffee than it is to stand in the courtroom trying cases, and a guilty plea is a quick buck for a defense attorney. The conflicts of interest are just enormous. One prominent Texas defense attorney told me, "There are two ways to get rich in the practice of criminal law. You can develop a great trial reputation like Johnnie Cochran and then get the occasional defendant like O.J. Simpson who has a lot of money to spend on criminal defense, or you can handle lots of cases for lower fees," and the way to handle lots of cases is not to try them, but to plea them. The prominent Texas defense lawyer told me the best way to operate is to combine the two cases -- you should take one highly publicized case to trial every year. He says you don't make much money on the cases you try, but they help to bring in the cases you can settle.

How can we fix the system?

There are three ways to do it. Plan A is just spend the money. We're one of the richest nations on the planet, and we've decided we can't afford to give criminal defendants their day in court. There's got to be something wrong with that picture, but the problem is that our trials are so over-proceduralized that maybe we can't afford to do that. …

So Plan B would be to simplify our trial procedures, and thereby make trials more available to defendants who want them. We don't need these prolonged jury selection procedures. We don't need the complicated rules of evidence; there are lots of other ways we could simplify criminal trials.

Plan C is to substitute a different kind of bargaining for plea bargaining. In Philadelphia for many years, the usual way of trying cases was a jury-waived trial -- a trial before the judge alone. Why did that happen? Well, because in Philadelphia, as everywhere else, a defendant who asks for a jury and was convicted got a very tough sentence. But if a defendant asks for a trial before the bench, his sentence was not likely to be tougher than a guilty plea sentence. So guilty pleas were very low.

The defendant was tried before a court in a relatively expeditious proceeding, typically taking only a half an hour for an ordinary street crime. That's a troublesome practice for some of the same reasons that plea bargaining is troublesome. I mean, you've got a right in the constitution to a jury trial. … But at the same time, this is a system where the defendant does have his say before an impartial third party, and he does not give up his chances of acquittal. …

What's the relationship between the sentencing guidelines and the plea bargaining system? Do some of the draconian sentences for drug crimes, for example, induce more plea bargaining?

… Guilty pleas have increased in recent years partly because sentences have become so draconian. We now have mandatory minimum sentences. We have sentencing guidelines that are very tough, and it's like a good cop/bad cop strategy for police interrogation. The sentencing commission is the bad cop. We're going to be really tough, and the prosecutor then becomes the good cop, "Hey, I can protect you from that bad old sentencing commission, but only if you cooperate with me." So you get tremendous leverage.

We've imposed these guidelines because we don't trust judges. We don't think the judges will exercise discretion properly. But all we've done is transfer the discretion from the judge to the prosecutor. Judges don't sentence defendants in America today. One offender says, "You know, the judge is just put up there. He's supposed to be the head of the show, but he ain't nothing. The head of the show is the prosecutor." Another defendant says, "You know, the prosecutor is the man who gives you the time," and that's the truth in American criminal justice system. And the tougher the sentences that are threatened after trial, the more leverage the prosecutor has to induce a plea of guilty.

Which comes first, the tough sentences, or are the sentences designed with the plea bargaining system in mind? I think that the sentences are probably designed with the plea bargaining system in mind. I don't know that it's a conscious, calculated process. But the overwhelming majority of defenders plead guilty. You don't want to give inadequate sentences to the vast majority of offenders. So I think that the sentences given to defendants who plead guilty are probably about what they would be in a system without any plea bargaining at all. The sentences given to people who stand trial are harsher, but there's no way to prove that.

Do you think that's true even in state cases?

Yes. The federal system is worse, because the federal guidelines are so rigid and so severe. But certainly we have mandatory minimum sentences and so forth in the state systems, too, and sentences have been getting tougher in both state and federal courts. …

Why do people think our justice system is the best in the world?

I don't know if Americans think that it's the best system in the world. Maybe they did before the O.J. Simpson trial. But we have juries. Most places don't have juries. We have the most complicated and cumbersome elaborate trial system that humankind has ever devised, and maybe people don't know that it's become so expensive that we've decided we can't use it for more than a tiny minority of cases.

I've sometimes wondered if our justice system isn't close to the worst criminal justice system in the world. It's probably not as bad as the systems where they cut off hands for minor offenses, but, I don't know, maybe it's about on a par with the systems where judges take bribes. I think the systems where judges take bribes are less expensive and may result in justice just about as often.

Are you a maverick?

I think I'm probably considered a maverick, yes. I think most people in the legal profession think plea bargaining is just fine. It's in the interest of prosecutors and defense lawyers and judges, and they've devised elaborate rationales for this process. I don't think any of the rationales make sense, and I think that makes me a maverick.

 

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posted june 17, 2004

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