What is the role of the defense lawyer?
Sometimes defense counsel does a very good job for people in the plea bargaining process, and gets you a good deal. But there are many other outcomes.
In the public defender system the defense counsel is representing a hundred other people; the defense counsel can not take every case to trial, the caseload pressures force the defense counsel to decide which of the cases he's going to take to trial and which not. Defense counsel in some circumstances is not very competent and is delighted simply to take his money and run, so to speak. Some of the compensation arrangements for defense counsel are quite perverse. They're paid by the case and therefore, it's in their interest to take as many customers as they can, represent to them that they're getting them a great deal and in fact not do very much for them. So there's no particular reason to think that defense counsel is any serious answer to the intrinsically coercive nature of plea bargaining.
To the extent that defense counsel does in fact negotiate a better deal than one could get in the ordinary outcome of trial, that's also something which disserves the public interest, in the sense that the defendant gets to walk. I'm not in favor of all defendants walking around on the street free. I think most people who are prosecuted of serious crimes are guilty of at least what they're charged with and ought to have serious criminal sanctions attached. But the problem is, "most" isn't the way we do business in a free society that cares about individual rights and individual liberty. We're concerned about each person, and the trouble with plea bargaining is it places tremendous pressure on every defendant to waive the right to adjudication.
Whom does the system benefit?
The main winner in the plea bargaining process is the prosecutor. I describe plea bargaining as a system of prosecutorial tyranny. What has happened is that a single officer, the prosecutor, now is in charge of investigating, charging -- that is, bringing formal charges -- deciding whether to prosecute, evaluating that evidence, [deciding] whether or not in his or her judgment you're guilty or not, and then basically sentencing you. So that in place of a system which our constitutions have all devised, which is one in which the power, the awful power, to inflict criminal sanctions on an accused, is dispersed across prosecutor, witnesses, a judge, jury, sentencing professionals -- instead of all that, what we have now is a system in which one officer, and indeed a somewhat dangerous officer, the prosecutor, has complete power over the fate of the criminal accused.
You let the defense attorney off lightly.
I think defense counsel is to some extent at the mercy of a bad system. There's not a lot you can do when the other guy has all the chips. And the prosecutor has an awesome pile of chips in our plea bargaining system, because the prosecutor can threaten ever larger sanctions if you don't do what he wants. So I believe that by far the worst failure in the plea bargaining system is the prosecutor, and I think that's in part because the prosecutor is not always as noble as he would like you to believe he is.
You have to understand the perverse incentives that operate on prosecutors. Many of them are noble, high-minded people, but they have very serious caseload problems of their own. They also are subject to the ordinary human frailties. Some of them are lazy. It's hard work to try a case. It's much easier to threaten some poor devil until he consents. … It's a lot easier to coerce somebody into waiving all his defenses than to actually investigate the case thoroughly, take the proofs to trial and see to it that there's a genuine adjudication.
But, again, the trial is there for anyone who chooses that option.
It is true that one always has the right to go to trial, but the prosecutor can make that right so costly that only a fool will exercise the right. … Any of us will plead guilty if the disparity between what we're threatened with if we go to trial and lose, and what we get if we don't is increased enough. …
Part of the reason why we in this country have criminal sentences that are so much more severe than in the rest of the civilized world, is the need that prosecutors have to threaten people with these huge sentences in order to get them to waive the right to jury trial. So there is a linkage between the notorious severity of our criminal law and the plea bargaining system. We have to have these perverse sentences as a threat in order to get people to waive the right to jury trial and take something less. …
Prosecutorial power in the plea bargaining process often turns on pretrial detention. That is to say most people [in the system] are too poor to afford bail, and these people are particularly likely to yield to the demand that they confess whatever it is they're being charged with rather than wait for some kind of trial, because they'll be sitting in jail for months and months and months, and therefore there is a very evil interaction of prosecutorial power with poverty, with indigence.
The simple truth is there are not a lot of Rockefellers in jail for sticking up 7-Eleven stores or drug busts or whatever. Most of the people caught up in a criminal justice system, for all sorts of sad reasons, are people who are poor. And when you combine pretrial detention with the prosecutor's power to threaten much worse sanctions if you don't confess and bear false witness against yourself -- many people caught in that trap basically have no choice but to bear false witness against themselves, and confess to things they didn't do. …
It is very sad that the Supreme Court, which has been so anxious to protect various rights of persons who go to trial, has been so cowardly about seeing the evils of the plea bargaining process. … The Supreme Court has been … indifferent to the pressures on accused in the plea bargaining process, as exemplified by the famous Alford case, where the fellow actually stood up and said, "I'm innocent, but I'm pleading because the disparity of outcome that they're threatening me with is too great." It's terribly sad.
What's the moral foundation of that?
It is a very hard question why the Supreme Court is so sensitive to creating trial rights which make trial ever more complicated and therefore unworkable on the one hand, and on the other hand so insensitive to the resulting evasion which dominates the system, which is that the prosecutor is allowed to coerce people out of trial.
It's very important to understand that prosecutors have a number of incentives that are not necessarily in the public interest. Prosecutors are sometimes affected by sheer laziness; prosecutors are sometimes people who are very exposed to political and media pressure. … Our prosecutors are very often elected in the state system or they're politically appointed, and they are people who are on the make in the federal system, and as a result they have an interest in headline hunting, in notching victories, in winning, and that shows up in their pressures to bring unjust cases. My favorite example is Giuliani's prosecution of Michael Milken, and his use of abusive plea bargaining tactics to do so. It's very important to understand that prosecutors are themselves a mixed bag.
But it wouldn't work without the collusion of everybody else -- judges, defense attorneys.
It is certainly true that all of the professionals, the insiders in the criminal justice system, are in a sense winners from subverting the right to trial in favor of plea bargaining.
What happens is that prosecutors don't have to prove their cases; they're simply allowed to coerce people into waiving their rights. Judges are spared the difficulty of conducting trials and the danger of being found to have erred; they can't be appealed from as a practical matter in plea bargaining. Defense counsel is enabled to have a mass practice in which he represents a lot of different people, pleads them all and has a high volume business ringing the cash register. And the result is all of these people have interests which are contrary to those of the trial system and those of a genuine ventilation of guilt or innocence at trial.
The result is we have a system in which our constitution says beyond reasonable doubt, you're presumed innocent until you're proven guilty. And what actually happens is you're coerced into confessing yourself guilty, whether you are or not.
Do people know that?
One of the saddest things about plea bargaining is that it is not widely understood. Most people have the television model of Perry Mason or somebody similar contesting for a verdict of a jury. Moreover, when plea bargaining actually happens, it's always out of sight. And as a result, not only does plea bargaining replace the constitutional requirement of trial with a deal, but plea bargaining attacks another feature of the constitutional design. What the Bill of Rights, the Sixth Amendment calls for is public jury trial, and plea bargaining is not public. It's secret. The evidence does not come out in public. It's not ventilated in public. And the public doesn't really know what happened. That causes very great disquiet in some cases; the most famous I think is the prosecution of James Earl Ray, the purported slayer of Dr. Martin Luther King. The plea bargain in that case resulted in no public ventilation of the evidence, and there has been a lingering suspicion for decades that the case involved a wider plot than what was acknowledged, but the evidence doesn't come out.
So part of what we lose in the plea bargaining process is not only the rights of the innocent accused, but we're also losing the very important benefit of publicity associated with a trial tradition. …
The single defining characteristic of the criminal law in the theoretical, philosophical understanding is the condemnatory force of the criminal sanction. It's not simply that we lock you up. We lock up people who have tuberculosis. The important difference is we lock you up in circumstances in which we condemn you. The judge says you have wronged society.
Plea bargaining devastates the condemnatory force of the criminal sanction because those sanctions are now applied without adjudication. That judge has not examined the question of whether you are guilty or innocent. What has happened is that you have been threatened enough that you waive your right to have that adjudication. …
What is the judge's role in the plea bargaining process?
There are a variety of different forms of plea bargaining. There are versions in which the judge has a relatively passive role, and in which most of the pressures are brought by the prosecutor, and that is typically what we call "charge bargaining," where the prosecutor threatens to bring a large number of charges or to intensify the charges in various ways and to recommend the high end of the sentencing range, in areas where there is such a range.
There are other forms of plea bargaining, typically called "sentence bargaining," in which the judge may have a larger role and in which the real driving force can be the judge. We've had a tendency in recent years for a variety of reasons to have charge bargaining prevail over sentence bargaining. …
Defendants pleading guilty often indicate remorse for the crime.
That's one of the standard excuses that are given by apologists for the system. Plea bargaining is sometimes justified on the ground that we are giving a lighter sentence to someone who is showing contrition or remorse for the offense. But that's a pack of lies. What is in fact happening is that the accused is being told by the prosecutor, "You accept guilt and confess and bear false witness against yourself and we will then see to it that it gets characterized as contrition or remorse." The point is that the coercion, which eliminates trial, eliminates our ability to know you were in fact beyond reasonable doubt, guilty or not. And therefore it makes the remorse talk just window dressing by apologists who want to keep this existing system which is convenient for them.
Many times defendants ask for a plea offer.
It is true that most people would rather not be subjected to the publicity of trial.
Or the risk of trial.
And it is also true that most people are very concerned about the risk of trial. It is true therefore that in a sense, the plea bargaining deal can look as though it is a blessing. You are spared all this. But what we are unable to determine is the difference between those cases where it really is benign, and those cases where it is malevolent because I'm being coerced out of my right to trial and circumstances in which I have a legitimate defense. The only way to protect against the latter is to insist that we try all cases of serious crime, that we not plea bargain any of them.
But the system would collapse.
It is certainly true that plea bargaining is not a topic unto itself. It is connected to the failures of the trial system.
If you go back two centuries, there was no plea bargaining in Anglo-American law. We didn't have it. Today we have plea bargaining running rampant. What's happened is that across those two centuries, jury trial changed character. It's something different from what the framers were constitutionalizing. Jury trial today has been captured by the lawyers; it's what we call "adversary jury trial." There were almost no lawyers involved in jury trial two centuries ago. The result is that we have an elaborate body of law that is designed to control this lawyerly combat, which is called the law of evidence and certain other rules, and the result is that jury trial has become ever more time-consuming and impractical.
The ability of the lawyers in the O.J. case, for example, to spin out the case forever and ever, their ability to dominate the jury selection in ways that was unheard of two centuries ago, all of that is the background to plea bargaining. As the jury trial becomes more and more time-consuming, more and more complex under the weight of the lawyers' capture of the trial, we find that it becomes ever more costly to give people that which the Constitution says they must have.
Do you have a solution?
I think the solution is very complex. I think it requires facing the underlying failure of this adversary criminal justice system. The idea that having one pack of lawyers and investigators saying, "You did it," and another pack saying, "We didn't," and nobody actually looking for what actually happened, nobody having an interest in investigating the truth, is a big mistake.
No other civilization does it. All other legal systems except those that are based on English law like our own have a more truth-centered system in which the prosecutor is basically a judge and is conducting a public investigation… and in the result, trials become more rapid and less combative.
You cannot have an O.J. Simpson trial for every accused. And we don't have it. We just give those full dress trials to rich guys.
Many say we have the best justice system in the world.
No knowledgeable student of comparative criminal justice is likely to fall victim to the notion that ours is an admirable system.
It is an appalling system. We have ten times as large a percent of our population locked up in jail by comparison with the European countries. We have sentences which are draconian. We've just had a 12 year-old put in jail for life in Florida. Things of this sort are unheard of in the rest of the world. There are many causes, but the failure of our adversary system is central, and the political nature of our prosecutorial system is also central.