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johnathan h. oberman
[plea bargaining] is a certain kind of justice.  Does it get the result correct most of the time?  Its difficult to say.

…My sense from occasionally watching television and from reading the television page of the New York Times is that, on every single night of the week, people can watch at least one, if not many hours of programs like Law and Order, which I think promulgate a kind of myth about the criminal justice system. … Those programs show you a trial taking place. In that trial, somebody's guilt or non-guilt is resolved after an investigation, and it's all done in about 48 minutes. And that 48-minute image of the criminal justice system couldn't be less accurate.

In fact, it's a staggering myth that people hold to about the quality of criminal justice in America. It belies the fundamental truth that cases are not resolved through trial, but by way of plea bargain. What one learns quickly when you conduct any kind of empirical investigation or examination, by speaking to prosecutors federally or at the local level all over the country, is that the overwhelming majority of criminal cases in America are not resolved by way of trial, but are resolved by and through plea bargains. When I'm saying a significant majority, I mean close to 90 percent, depending upon the jurisdiction. …

Is this a bad thing?

I can't say inherently or in the abstract whether plea bargaining is good or bad. There are a number of different ways to think and talk about it. … Is it good or bad for an individual in an individual case? Is it good or bad for an entire category or class of people? It's certainly a good thing for someone who is factually guilty, who has factually done that which he or she is charged with doing, who is confronted with overwhelming evidence, and where the state is inclined to make some kind of offer because they would not want to put the victim or families of the victim or put the state to the cost of proving the case at trial. Where the state is ready to make some kind of advantageous offer to that defendant, it's certainly good for that individual to take advantage of a plea.

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Jonathan Oberman is a clinical professor of law specializing in criminal defense at the Benjamin N. Cardozo School of Law, Yeshiva University. His interview here offers an incisive primer on plea bargaining's role in the judicial process. Oberman also talks about the different categories of people who are affected by pleas, and he explains why the "enormous questions" surrounding plea bargaining "can't be raised apart from some of the other problems that really infect the criminal justice system." This interview was conducted on Jan.14, 2004.

Does that mean that in all circumstances and for all people it's a good thing? Certainly not. It exerts a significant amount of pressure -- sometimes coercive pressure -- on people who are innocent or who are confronted by marginally provable cases. They're encouraged to forego their right to trial in exchange for a significantly favorable sentence, or a sentence that might seem to be favorable at the time that it's offered. For someone who is innocent -- and there are certainly any number of people who are innocent when they've been charged -- it becomes a matter of principle; a very painful and difficult decision to make whether to forego the principle of their innocence, but run the risk of losing at trial and getting exposed to a significant sentence; or they take advantage of a plea bargain, which requires them to say they're guilty even if they believe they're not, and get a better sentence.

That's not exactly justice.

Well, it's a variant of justice. Years ago, the United States Supreme Court was called upon to pass upon the constitutionality of plea bargaining. [Editor's Note: See Brady v. United States Sup Ct. (1970) 397 U.S. 742] The court recognized that plea bargaining has coercive aspects, but felt, applying a utilitarian analysis, that those coercive aspects were offset by the benefits that could be realized societally, collectively and that the individual defendant could realize as well. Is it justice, capital J, pure justice? Certainly not. But the greater the volume of cases, the less the likelihood that each and every case can be resolved by way of a jury trial.

… [the justice system is] a system that is predicated on the adversarial testing of proof at trial, and the aspects of that adversarial testing should exist prior to the time of plea. As is true at trial, in the plea bargaining stage, the more equal adversaries can be, the greater they share equivalent access to information -- that is, the more that criminal defense attorney knows about the strengths or weaknesses of the government's case -- the better informed the individual defendant will be, and theoretically and hopefully, the more intelligently that person will be able to make an informed decision about whether or not to plea.

One has to have money to get a good lawyer to bargain for you.

I wouldn't want to say that it's absolutely critical to have money, because it would suggest that the indigent defender system in the country is decrepit and not of value; and certainly there are indigent defenders, public defenders all over the country, who are incredibly talented and skilled, who bring an enormous degree of ability and zealousness to their work. But certainly money and access to an outstanding investigator, the ability to generate information in order to assess the viability or attractiveness of a plea offer -- all of that helps. If you say, "Is that justice?" It's a certain kind of justice. Does it get the result correct most of the time? It's difficult to say. Nobody is keeping a database on the number of people who have pled guilty notwithstanding the fact that they're innocent. …

What's bad about plea bargaining?

Depending upon the case, plea bargaining can place enormous amount of pressure on the individual charged to compromise what might be accurate and firmly held belief in their innocence. People will be called upon to make decisions that forego the opportunity to test evidence at trial, because the potential cost of losing a trial will expose them to an overwhelmingly greater possible sentence.

For example, imagine representing someone who maintains their innocence of a given charge. Imagine that you've done a thorough investigation of the case, and you're persuaded that, while there is some proof, there is some serious or significant questions based on what you know about the quality of proof, and possibly even about whether or not your client committed the crime for which he's charged. Now imagine that if your client goes to trial and loses; your client can get 25 years to life in prison. And imagine that, on the eve of trial, your client is offered a plea of seven to 21 years. Your client is now being confronted with making a staggeringly frightening and pragmatic choice. Plead guilty and take seven years; go to trial, risk losing, and risk having a judge sentence him to 25 years.

I can't say with certainty even if I were innocent that, as a matter of principle, I'd be prepared to run the risk of getting additional 18-year sentence imposed because I exercised my theoretically available Sixth Amendment constitutional right to trial, and as a matter of principle, insisted that the jury pass on my guilt or innocence. I just don't know that I could do that. Losing seven years is an awful prospect. Losing 25 years is worse than three times that. I think it increases not arithmetically, but geometrically, when you think about the agony and grief of spending additional time in jail.

So the plea bargaining system recognizes that incredibly powerful dynamic of risk aversion. Each of us, by and large, wants to do that which is less painful. The plea bargaining system is predicated on taking advantage of that, as a way of reaching quicker, non-trial-based resolution of charges.

This isn't justice.

I think that's overstating it. I think the value of a competent and hard-working attorney is to help their client assess the strengths and weaknesses of the case against them, and then to try to make a more intelligent decision between or among the various alternatives. I don't think the attorney is useless in that process. I actually think the attorney is of maximal value and maximal importance. The quality of representation that one gets during this stage of representation has an enormous possible effect on the outcome.

How can an attorney tell you whether or not to go to trial?

Ultimately the question whether or not someone can go to trial is, as a matter both of constitutional law and ethics, unequivocally the choice of the client. The attorney may make a recommendation. But it would be rare and unusual, where someone is facing exposure to a significant amount of jail time, that an attorney would suggest or suggest strongly that the client go to trial. It's much more likely that if the attorney has made an assessment that indicates that the person could face a conviction, that they might be more inclined to suggest the alternative -- that they forego the trial and take advantage of the plea.

Ultimately, when the client goes to trial, it can represent either a failure on the part of the attorney to have adequately informed the client about the potential risks; or it could represent a principled decision on the part of a client who understands the risk, but isn't prepared to say they're guilty of something they didn't do.

Finally -- and you have to certainly allow for this in the criminal justice system -- it represents the choice of a stubborn or irrational person who doesn't believe that witnesses will come to court, who doesn't believe that the government is going to actually go through with a prosecution -- someone who has made bad choices in the past, and is making a bad choice again in foregoing a plea bargain and in going to trial.

But what about those who should not have been arrested in the first place?

I think there are a number of categories of people that are affected by plea bargain. Let me describe a couple of them, and the last one would be this group that you're just asking about.

I think plea bargaining works on an individual basis for people who are factually guilty, who know they're guilty, whose attorneys have a sense they're guilty; someone who's charged with a capital crime, where there's no question about the state's ability to prove that case in court. If that person values life -- however life is described when you're living it inside an institution -- and if that person is offered a plea bargain of admitting that they committed a homicide with a promised sentence of life without the possibility without parole, whereas if they go to trial and lose, they face the possibility of the imposition of the final sanction, electrocution, imposition of the death penalty-- For that individual, I would say there is something that works about the plea bargaining system.

There's a second category of case. It's a category that we've spoken about earlier, which is for those individuals who are not factually guilty, but who succumb to the pressure of [the risk of] losing a trial and getting a much more severe sentence. On some level, they've saved themselves the risk of going to trial and getting an even worse sentence. But where the innocent person sits in jail, whether by conviction after trial by jury or conviction by way of plea -- There is something fundamentally wrong about a system that produces those results. That's a second category of person, and the second class of people for whom plea bargaining clearly does not work.

There's yet another class of people -- This is, again, I think a misconception on the part of the public, which is that plea bargaining is only for this last class of people-- It's the revolving door system of justice. It's people who are swept into the criminal justice system on low-level crimes, and are swept right back out because their clever defense attorneys have taken advantage of the system and pled them guilty to some lesser crime and gotten them no kind of sentence. They're back out on the street again within 24 or 48 hours.

On an individual level, if you're found to be in possession of a small amount of controlled substance and you get arrested, you plead guilty and you get back out on the street in 24 or 48 hours, one could think that that system is working for that individual. But the question exists about the context in which to think about that entire category or group of people.

If 150 people are swept into the criminal justice system within a 24-hour period in response to a police initiative to rid a block or a neighborhood of low-level drug possessors or low-level drug trade, and if those people are swept into the system with the implicit understanding that those individuals are not going to be brought to trial, then the question exists -- what societal value is being served by a plea bargaining system that sweeps people in and pushes them back out on the street? We're, in essence, criminalizing an entire category of conduct, because it's simply an efficient way of imposing what we assume to be a solution to a problem that does nothing to address the underlying issues that produce the problem.

Why do people who plead guilty stay guilty, even if they are later proven innocent?

That's a difficult question. Any answer I give you is not going to be adequate to the pragmatic question which you're posing, which is, if there is in some way proof that an individual or a group of individuals is not responsible for a crime, why should pleas that were entered still be treated as valid? The answer is, sadly, I'd almost make reference to something Justice Scalia said in a fairly significant case, Herrera v. Collins when he said, "The Constitution isn't perfect." That's sadly the state, or at least one of the doctrinal conditions in which we live and practice.

The constitutional test for a plea bargain is whether or not at the time it was entered the person that takes advantage of the plea does so knowingly and voluntarily. Now, you'd say, "Oh, come on, what does 'voluntarily' mean? Any time someone is subject to some level of coercion, it's not voluntary." From a commonsensical and intelligent perspective, which viewers always bring to bear, there's some truth to that observation. "Voluntary" doesn't mean precisely that in legal doctrine or in constitutional doctrine.

So if someone knows the alternatives, they understand and recognize the alternatives from which they have to choose, they have a competent attorney who has explained the choices to them, and they make a choice to enter a plea, that plea is by and large deemed on reexamination to have been entered knowingly and voluntarily. …

[If] subsequently people go to trial on the same charge, the case unravels, it's understood that in some ways the prosecution rested on some notions of fraud, there are ways to move to set aside the plea. There are very limited and specific ways. If, for example, the prosecutor was aware of limitations to their case, something significant, [and] the prosecution failed to make disclosure, under the limitations of each jurisdiction's statutory scheme, there may be categories that let one bring the post-conviction challenge to the legitimacy or legality of a plea bargain.

But there isn't some system-wide reference to "fairness" or "equity" or "justice" as you might use the term, to say, "What was done here was wrong." Sadly, we exist in a system where [the fact that] something is [true] on some moral or ethical level -- It alone may or may not be sufficient or adequate to make that claim understandable or litigable in a courtroom.

Is it fair to offer someone a choice between sitting in prison or being out on 10 years of probation? Does that kind of plea offer a real choice?

… Well, it's certainly a particular kind of choice. It may not be the kind of choice, existentially -- when you think about what it is for this human being to exercise agency and choice and to actualize who we are by the things we choose to do. That's a kind of different variant of choice than what many people [have], especially poor people, or people who are confronted by snitches, or cooperating witnesses or cooperating former codefendants where, notwithstanding what might be their noninvolvement in crime, there's very little ability to persuade a jury that the government hasn't met its burden of proof.

When those people choose to take advantage of a plea bargain, if you say, "Well, what kind of choice is that?" I say, "Well, a more minimal one -- choice among unattractive alternatives." That's really the position that many indigent people, and non-indigent people, wealthy people find themselves in, sometimes frequently, in the criminal justice system -- choosing between unattractive alternatives. …

Certainly in connection with low-level misdemeanor cases, people get swept into the system, and they get swept out with very little sentence imposed, very little time imposed, 24, 48 hours time served. But the great bulk of cases that are plea bargained require people to make very difficult choices: life without parole as opposed to going to trial and getting sentenced to the death penalty, taking five years or seven years of straight time as opposed to going to trial and losing and getting 15 years.

Imagine being charged in connection with a drug conspiracy. Conspiracy is one of the simpler crimes for the government to prove. It's enormously elusive. It's considerably abstract. Imagine that you're innocent. If you go to trial and you lose, you could get 15 years. You're offered a plea bargain for five years probation.

Of course, while you're on probation, you'll be required to submit urine samples; you'll be required not to leave the state to take a vacation; you'll be required to notify a probation officer every time you think about changing addresses. And if you fail to meet any one of these various technical requirements, you could be in violation and sent to jail.

It's disastrous for innocent people.

Yes, it's disastrous, because an innocent person runs the same risk of having a maximum sentence imposed should they go to trial and should a jury find the proof was adequate to prove guilt. There certainly have been enough exonerations at this point; minimally, 140 people have been exonerated after doing significant amounts of time.

Those cases teach us some important lessons about the failures of the criminal justice system. One of the failures is, if you were innocent and you chose not to plea bargain, but to go to trial, you run a serious risk of being convicted; and if convicted, of being sentenced to severely long sentences in jail.

So imagine being the innocent person, being called upon to make a decision -- a choice between sacrificing your principled commitment to your own innocence; saying you're guilty, accepting a plea bargain and being sentenced to a lesser amount of time in jail; and if you forego that, you're exposing yourself to a trial at which you can be convicted and be sentenced to a significantly longer sentence, if not draconian. …

It's a black mark for the system every time someone who has pled guilty or someone who has been found guilty after a trial is exonerated. Depending upon who you are and depending on your view of the system, you either look at each exoneration and think that it's an aberration that tells you very little about the way in which the system operates; or you look at an exoneration, and you think it's a staggering condemnation of the more pervasive evil that may infect [the system]. I'm somewhat more of the latter.

Why does "showing remorse" seem to factor into whether a defendant gets a plea bargain?

In general, if you look at the sentencing guidelines, various points are given. That is, the defendant takes advantage of not just showing remorse, but I think the sentencing guideline describes it in terms of "accepting responsibility," which means that the person is accepting responsibility, showing remorse for their conduct and not imposing on the government the obligation to prove their guilt at trial. In theory, it is the acceptance of responsibility and showing remorse that's being rewarded with a plea bargain. That's certainly one way to think about it. But it ignores some of the broader dynamics that operate.

That you might be innocent?

Yes. That you might be innocent, and also that, to the extent that the Constitution provides what seem to be guarantees -- … The individual isn't in a position where they can exercise their various kinds of entitlements and rights. Imagine a case where there is some significant evidence, incriminating evidence that was recovered as a result of a search. The individual on trial, the defendant, may be confronted with the choice, "Litigate your suppression hearing, take the chance of winning, having the evidence thrown out, making your case much more triable, making the possibility of getting a favorable verdict at trial greater; or plead guilty prior to the suppression hearing, or prior to the decision on the suppression hearing." Has the person been given the opportunity to fully exercise their Fourth Amendment right? Certainly not. The system is predicated on the notion that they're being given a different kind of entitlement -- to choose to accept or avoid the greater risk of going to trial.

Going to trial is the huge threat.

Well, it's both a bugaboo and threat. It's been said that the criminal defendant controls next to nothing in the criminal justice system, is powerless in the criminal justice system except in connection with their own plea. It's only the defendant who can make a decision to forego a plea of not guilty. That's a peculiar variant of freedom, and it's a fairly limited kind of freedom. But it might still be, on an individual basis, a fairly accurate statement. …

Do you admire the jury system?

I'm a great admirer of it. I frequently think juries get things right. I don't know that there's another system that I prefer to practice in. I don't know that the inquisitorial model by which disputes are resolved in France is more attractive. I think there's much that recommends the common law tradition; there's much that recommends the jury system.

I'd be more comfortable if fewer cases were resolved by way of plea. I think if plea bargaining did not exist, it would require prosecutors to exercise discretion more intelligently. I think they would have to charge cases more carefully. I think they'd have to access the strength and weaknesses of various witnesses much more searchingly, because the catch-all, the escape hatch of plea bargaining doesn't exist.

I don't think I would be comfortable in a system that was absent of any kind of the discretion that plea bargaining can provide when intelligently exercised. But I'd be happier if more cases were resolved by trial, which might in fact mean that fewer people were arrested, fewer people were brought into the system if the system accepted its obligation to give trials to people that the system chooses to arrest.

… Overall, I don't think that it advances an intelligent analysis of plea bargaining to think about it, or to try to talk about it, in the abstract. I think the only way one can think about it intelligently, think about it critically, is to talk about it in the context of concrete and specific cases. Then talk about those cases, and figure out whether there are ways to talk about each of those cases as an example of some aspect of the way in which the system works, for good and for bad.

Most of the cases raise enormous questions.

I think there are enormous questions that have to be raised, but they can't be raised apart from some of the other problems that really infect the criminal justice system. If we work in a system that ... depends so significantly on snitch testimony, on codefendants flipping and giving up information, accurate or inaccurate -- If we're not really prepared to consider and consider openly and carefully the fallibilities of eyewitness identification, if we're not open to considering the possibility that confessions, even if they read truthfully, are sometimes the product of psychological coercion; if we're not open to being aware of and thinking critically about police and prosecutorial misconduct in the form of exculpatory information that's not turned over to the defendant as the Constitution requires it --

These are the problems that I think infect the administration of justice in criminal cases in our country. The plea bargaining system has to be thought about in that context, and also thought about in a context politically about resource allocation. We're living in an economic moment where the government is de-funding social programs, but continuing to fund the expansion of prison populations. The plea bargaining system also has to be thought about in that particular kind of resource allocation context.

It's efficient?

It's certainly efficient. Plea bargaining is enormously efficient way of resolving huge numbers of cases. A judge's time isn't consumed with the lengthy process that a trial involves. You don't pick a jury, you don't swear the jury, you don't take witness testimony, there are no openings, there's no summation.

Plea bargains -- If you go into court, if you were able to film guilty pleas taking place, you'd be shocked to see that a case can be called before a judge, and on low-level cases, frequently resolved by way of guilty plea within 90 to 120 seconds. … A judge can resolve many, many cases, 25, 50 cases in the course of a court day, as opposed to having that entire day consumed with witness testimony on a single trial.

… It happens every day, in every courtroom in the United States. People come into arraignment, they meet their attorney, they have a brief conversation, they're informed of the charges, they're informed of what they could plead guilty to; possibly to get out of jail that night, possibly not, they have to make a decision. That's the truth. Less interesting story than the one that Law and Order tells people, but that's the truth. 90 percent of the cases are resolved that way. It's less interesting narrative than what we get to see on television, but it doesn't make it any less true.

I think if people spent a full day or a full week in the courtrooms of this country watching people plead guilty, they'd learn much more about the operation of the system than if they stay at home and watch Law and Order or The Practice or any other multitude of criminal justice-based dramas on television, with this important caveat: that if there was some way for them to watch what goes on in court, and then speak to the individuals who entered pleas and asked them why they were doing it, and spoke to the attorneys involved -- both the defense attorney and the prosecuting attorney -- to understand why a given plea offer was made and what that offer represented -- Under those circumstances, we would have possibly a significantly well-informed, critical, and intelligent populace.

But that won't happen.

No. Certainly not. I think people are more content to watch drama, whether it's accurate or inaccurate, truthful, not truthful.

 

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posted june 17, 2004

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