What is the role of the defense lawyer?
Well, the ideal of the criminal defense lawyer's role is this: They first of all have to be available to try the case and defend the client if he or she wants to go to trial. They have to give good advice to the defendant about whether to plead guilty or go to trial. [At] the end of the day, it's the defendant's decision whether to plead guilty or take your chances at trial. The defense lawyer has to enable the defendant to make an intelligent decision. What are the risks? How likely is it you'll be convicted? What's a likely penalty if you're convicted versus what is it that that prosecutors offer?
In an ideal world, the defendant would be advised about what the evidence is that the prosecution's going to introduce, about how credible the evidence is and be able to make a reasoned decision about what are the risks, what are the benefits. That's the ideal world.
Now what's the real world? In the real world, defense lawyers are appointed in almost every case, because very few defendants can afford a lawyer. The amount of time and resources the defense attorneys have depends on what the state gives them. Most criminal defense attorneys throughout the country carry very onerous caseloads. They may be representing 200 or 300 defendants in a year, and they have very limited resources in which to conduct investigations. They're somewhat at the mercy of prosecutors for the information that they have.
So in many cases, the defense attorney will take whatever the prosecutor gives, which could be very little, it could be just the complaint. They'll then advise the defendant, "This is what you're offered. This is what you risk if you go to trial." And that's pretty much it. And defendants make decisions with very limited information.
It's not a good system.
No, it's not the ideal system, what we have. And when people imagine the notion of plea bargaining, I think what they think of is defense attorneys and prosecutors who have relatively similar resources, defense attorneys like the ones you see on TV, who are going out and talking to witnesses and getting an idea of what the case is.
Sometimes the notion of plea negotiations suggests that real negotiations are going on, that there's some give and take, the way you might negotiate it if you were buying something in the market. It's really pretty much "take it or leave it." Prosecutors say "Here's the offer: If you plead guilty, you get time served, you get probation, you get three years, you get five years, take it or leave it." Defense attorneys advise the clients based on very little information. And often the clients have to decide these things within a very short amount of time.
What is the role of the judge?
Judges don't have a large role in the plea bargaining process. If the prosecutor and defense attorney agree on what the sentence is going to be, that's pretty much what the judge imposes. Judges in a lot of systems don't really have any leeway to be more lenient than is agreed upon. Judges don't have a role in looking at the evidence. Pretty much, if the defendant pleads guilty they take the defendant's word for it. The prosecutor might make a representation, "I have a triable case," but judges don't have the time, or really the responsibility, to look at the evidence and satisfy themselves that the defendant was truly guilty. You take the defendant at their word.
But the judge has to be sure the defendant is pleading willingly and truthfully, doesn't he?
Well, there's a required sort of litany that the judge goes through: Are you on drugs? Has anyone put a gun to your head? Do you understand the charges? And so forth. But the reality is if the defendant wants to take the plea, the lawyer prepares them for those questions. And so whether you feel there's a gun to your head or not, you're going to say, "I'm entering this plea voluntarily, understanding what the charges are." Now, the reality is nobody literally puts a gun to the defendant's head. The gun is really the high penalty that they face if they were to go to trial and be convicted.
So it's a little act put on for the judge.
It's a little act, yes. One of the questions that defendants are often asked is, "Are you satisfied with your lawyer? Did your lawyer do a good job?" And defendants are not likely to say, "No, judge, you know, I'm not happy with my lawyer." You know what the required answer is supposed to be. And of course the defendants might not know what, in an ideal world, the defense attorney would be doing anyway.
What are the problems with the way the system works?
Well, I think that there's a number of things that are ethically problematic about the system that we have. On the prosecutor's side, the prosecutors have a big gate-keeping function. Defendants don't get charged unless the prosecutors want to bring charges. So the question is, What is the role of the prosecutor in making sure that they're only bringing charges against guilty people?
A lot of people would argue, and I would argue, that prosecutors have to be pretty certain, before they bring charges, that the person they're charging is guilty. But that's not the universally accepted norm, and there aren't any rules about it. You might think there ought to be some rules for lawyers who are acting as prosecutors, like, "You can't bring charges unless you're sure of guilt beyond a reasonable doubt, unless you believe the person you're charging is guilty."
That's not the rule. There actually is a rule on this and it's a very minimal one. It's as long as the prosecutor is satisfied there's probable cause, or probability that the person they're charging is guilty, that's good enough. And then you'll leave it to the jury to decide.
So from the prosecutor's perspective the troublesome thing is the fact that they basically take the case from the police -- particularly if they have a high volume of cases -- and present it and leave it to the system to resolve who's innocent and who's guilty.
From the defense attorney's side, it's also troublesome because the standards of the legal profession say that lawyers have to represent their clients competently and diligently. They have to advise their clients about the decisions their clients have to make, and enable their clients to make informed decisions. Now that suggests that if you're a defense lawyer, you have to learn what the case is against the defendant. You have to conduct an investigation in order to give the client an ability to know what the risks are if you go to trial -- how likely is it, really, that I'll be convicted versus acquitted?
Most defense attorneys don't have the resources to do that. In the overwhelming majority of cases, defense lawyers do next to no investigation; they take whatever information the prosecutor gives them, they present the plea offer to their clients and they let the client make a decision.
The system is supposed to be transparent.
Well, the system has a high regard for finality. The general idea is once someone's pled guilty and been sentenced, that's the end. We're not going to reopen it. You get your one shot at the very beginning, but it's very hard to overturn a conviction where someone's pleaded guilty. Unless you can show that it was involuntary -- somebody was really coercing you or your lawyer was just horrendous beyond belief -- you're not going to get out.
And that's because, imagine a system where you reopened the tens of thousands of cases in which defendants pled guilty. Plus, of course, unless the defendant receives a pretty severe sentence, there's no incentive to reopen it. And many, many defendants, probably the overwhelming majority, are pleading guilty and getting probation, getting relatively minor sentences.
Probation is not that great, though. It is not like getting off entirely.
Well, no, it's not. I don't think probation's any great shakes. Having a criminal conviction in this country nowadays, even if you don't do a day in jail, can be pretty bad. If you have felony convictions, there's a lot of harsh consequences. You may not be eligible for public housing, you may lose the right to vote, you may not be able to get certain employment. If you're an immigrant, you may be deported. So it's no great shakes to get a conviction and probation. …
What does the Supreme Court say about the constitutionality of plea bargains?
The rule of the game is you get a trial unless you plead guilty. And the guilty plea is giving up all the rights that the constitution gives you: the right to a trial by jury, the right to confront witnesses, the right bring your own witnesses in, the right not to be convicted without proof beyond a reasonable doubt. You can only give up those rights if you do it knowingly and voluntarily. "Knowingly" meaning you understand the rights you're giving up; "voluntarily" meaning you're not coerced.
Some years ago a defendant argued to the Supreme Court, "It's inherently coercive if the prosecutor says to me, 'You can plead guilty and get three years in jail, otherwise you can go to trial and have all your trial rights. But if you're convicted you face 30 years in jail.'" That sounds like coercion to you and me and most ordinary people. But under the constitution, that's not considered coercive. ...
The other argument that might be made is that prosecutors are not supposed to penalize defendants for exercising their right to go to trial. ... If you say to a defendant, "If you plead guilty, you'll get three years, but if not and you're convicted you'll get 20," that sounds like a pretty harsh penalty for asserting your right to go to trial. But again the Supreme Court has said, "That's not what we have in mind when we say, you can't penalize a defendant for exercising their rights."
Why don't courts and prosecutors want everyone to get a trial?
It's a matter of resources, of course. We have a society where a lot of things are considered crimes. And a lot of people are arrested for crimes. If you were to give everyone a trial, it would cost an incredible amount. You'd have to build a lot more courtrooms, you'd have to appoint lots more judges and you'd have to spend a lot more of the state and local and federal money to do that. So part of the reason we have a system the way we do is it's economically more efficient to do that.
What are the benefits of plea bargaining?
I think the main benefit of the plea bargaining process from the state's point of view is it saves a lot of money and resources. It also is in some ways fairer to witnesses and prospective jurors. Imagine if in all these cases, the victims and witnesses had to come to court to testify. And in all these cases, people had to leave their jobs in order to serve on juries. That would be very onerous for the public. So from the state's point of view, if you have someone, especially someone who's clearly guilty, and you could get them to plead guilty by offering them an inducement, it's in everybody's interest to do that.
Do you believe that?
I think it's a question of degree. I think in cases where defendants are clearly guilty, and the prosecutor's satisfied beyond any doubt that the defendant is guilty, then to go through the trial process, while it's their right, doesn't really serve a huge purpose from the public's perspective. And if you can offer some inducement to get that defendant to plead guilty, I think it's a good thing. …
Ethically, where are you on the question of how much pressure a defense attorney should put on his client to accept a plea offer?
Well, it's a question of line drawing. If you're the lawyer representing a defendant, it's the defendant's decision whether to plead guilty or not. It's the defendant ultimately who has to serve the time. She knows what her values are, she knows what's important to her, and it's her entitlement. You can't, literally at least, put a gun to her head.
On the other hand, the lawyer has a job to give that client the best advice about whether to plead guilty or not, and what the stakes are if she doesn't plead guilty. On the other hand, she's entitled to competent representation by the defense attorney which includes giving the client good advice about what are the stakes, what are the risks, what's the likelihood that you'll be convicted; if you go to trial, that the appeals court will reverse the conviction or uphold the conviction.
The lawyer can say, "I really think it's in your best interest to plead guilty, and here is why: If you plead guilty now, you'll be out of jail you know before you know it. If you don't, there's a pretty good likelihood that you'll lose the appeal and you'll be staying in jail for decades. If I were you, given the risks, I would plead guilty," and you might really try to prevail on her to plead guilty.
But there's a line that you can't cross -- and it's not clear where the line is -- but at some point what you're doing stops being giving information, stops being persuasion and it starts becoming coercive, and you're not supposed to cross that line if you're a lawyer. … You have to respect the client's decision at the end of day. If she understands what the stakes are and she knows her own values, she's entitled to say, "I just won't say I'm guilty, because I'm not. "
What are the economic pressures on defense attorneys that encourage them to try to get defendants to plead guilty?
We have a system where the defense representation is incredibly under-funded. …
If you're in a system where you have a public defender's office that takes almost all of the criminal cases in that jurisdiction, the defense attorney is going to have incredible caseloads. They may have 200 cases a year or more. And in that case there's no way you could defend everyone at trial. You couldn't even investigate every case.
That gives you incentive to go through some triage process as if you're the doctor in the emergency room, to recognize those cases which deserve to be defended at trial because there's a possibility of an acquittal, and to pressure the other defendants to plead guilty.
If you're in a system where you're being paid by the hour, a very low amount of money, you may have similar incentives because there's just not enough money to make it worth your while to try these cases. In some systems you get flat fees. You get $300, $500 for each case. The idea of representing a felony defendant for $500 or even $1,000 and having to do a huge investigation and conduct a trial -- nobody could afford to do that. So that system also puts tremendous pressure on you to induce guilty pleas for most of your clients.
What happens to an innocent person serving time after a guilty plea when they come before the parole board?
The worst thing you can be, I think, is an innocent person in prison, because not only have you been wrongfully convicted, but now when you come up for parole, your possibility for parole is much lower because the parole board basically expects that you will be contrite, which means you admit your guilt and have grown psychologically in some way so that you're no longer a threat to society.
Now that's fine for people who actually did the crime. But for people who are innocent, they're in a terrible predicament because if they admit their guilt, they're basically lying and doing something that they don't want to do. And on the other hand, if they don't do that, they have to serve their full jail time when other people who were guilty of crimes would be eligible for parole. It's a terrible system.
How did it get like that?
Well, the system's probably always been [flawed] in different ways, to tell you the truth. Prior to the 1960s, before the Supreme Court said that defendants have the right to counsel, you had defendants who were probably much less likely to plead guilty. But, on the other hand, their prospects of getting acquitted at trial were much lower if they were representing themselves.
Now you have the right to a lawyer, and if you end up going to trial, you'll probably do much better. But on the other hand the likelihood that you'll go to trial is much less because the pressure to plead guilty is much greater now. So I don't think that there have ever been the halcyon days where the criminal justice system has been just right.
Is it the best system in the world?
I think our system could be better. I think we don't nearly match our ideal. Any student in a civics class in elementary school or junior high school will learn about a system with a trial by jury and a right to counsel and proof beyond a reasonable doubt, and it won't remotely resemble the system that we have.
What amount of plea bargaining would be okay?
I don't think there is a number for plea negotiations that is the ideal number. If prosecutors are acting as gatekeepers in a really serious way and not bringing cases except against people who they're really sure are guilty, then a high number of guilty pleas is reasonable, because in those cases it's rational for defendants to plead guilty because they are guilty and because the proof against them is strong and because they're offered some fair inducement to plead guilty.
On the other hand, in a system where prosecutors are cavalier, are basically taking the cases as presented to them by the police, charging them and then offering very dramatic inducements to plead guilty, a high number of guilty pleas is problematic because we know that a fair number of those guilty pleas are going to be cases where the defendant was actually innocent. …
One ethical problem that defense attorneys have sometimes is if their clients insist that they're innocent, but they want to plead guilty, which is a rational decision to make, can you let them do that? There was a decision a number of years ago in New York where a judge said it's unethical for a defense attorney to allow the client to plead guilty when the client insists that they're innocent. … But the reality is that defense attorneys let their clients plead guilty if they want to plead guilty because they recognize that it's a rational decision to make.
If the client can have probation with a guilty plea or 10 years if they go to trial and get convicted, a defense attorney's going to let the client plead guilty. And the defense attorney will just say to themselves, "I don't really know what happened, I don't know if my client's telling the truth or not, and so I'll let the client enter that plea."