the plea
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stephen schulhofer
Óĺ plea bargaining is a disastrous systemÓĺfrom the publicÓďs perspective, from the perspective of effective law enforcement, from the perspective of crime control and from the perspective of the defense rights.

People say the United States has the best criminal justice system in the world.

When people think that we have the best system of justice in the world, they're thinking about our trial system. They're thinking about the very elaborate safeguards that we have.

Of course, the reality is that those are available in only a very, very small percentage of cases, and the very fact that those safeguards are so elaborate is part of what creates the pressure to plead guilty and to force cases out of the trial system into a guilty plea before trial.

The guilty plea is the primary system.

I don't think you can say that the system is one or the other; they are both parts of the system. I think that you could exaggerate the irrelevancy of trials. It would be easy to lose sight of their importance by just looking at the infrequency of trials. Because everything that happens in a trial filters back into the framework for plea bargaining, so if we have a trial system that typically acquits a certain kind of person or typically doesn't take seriously a certain type of crime, that means that the bargaining in those situations is going to reflect that. Conversely, if you have certain types of offenses that jurors punish very severely, then that strengthens the prosecutor's hand for plea bargaining, so I think you have to think about bargaining in the shadow of the trial system, and how its effects can permeate plea bargaining.

What is good about plea bargaining?

Well, personally I think there's very little, if anything, that's good about it. I think plea bargaining is a disastrous system from every perspective: from the public's perspective, from the perspective of effective law enforcement, from the perspective of crime control and from the perspective of the defense's rights.

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Stephen Schulhofer is a professor of law at New York University School of Law. In this interview, he explains why he believes that from every perspective of the justice process, plea bargaining "is a disastrous system" that takes away the rights and liberties of the defendant. He lays out how "the system in its details puts the defendant under … presssure" so that they end up feeling trapped and with no choice other than to plead guilty, even if they are innocent. Responding to critics who say the justice system would collapse without plea bargains, Schulhofer offers a simple solution for fixing the system that "essentially solves 99, 100 percent of the problems…" This interview was conducted on Jan 14, 2004.

Talk about defense rights.

The major problem with plea bargaining is that it forces the party into a situation where they have to take a guess about what the evidence is, about how strong the case might be, and they have to make that guess against the background of enormously severe penalties if you guess wrong. So defendants, even if they have strong defenses, and even if they are innocent, in fact face enormous pressure to play the odds and to accept a plea. And the more likely they are to be innocent, and the more strong their defenses are, the bigger discount and the bigger benefits the prosecutor will offer them. Eventually at some point it becomes so tempting that it might be irresistible, especially when the consequences of guessing wrong are disastrous.

So the result is that the system as a whole doesn't do what we count on it to do, which is to sort out the guilty people from the innocent people. It doesn't do that because the guilty people and the innocent people are all faced with the same pressure to plead guilty.

The system in its details puts the defendant under even more pressure because very often in less serious cases -- by that I mean still felonies, but they could be relatively routine felonies like a robbery without a firearm or a burglary -- the defendant is in jail awaiting trial. He may have to wait months or close to a year for a trial, and his defense attorney comes in and says, "Well, if you're innocent and you want to go to trial, you stay here for a year. If you're guilty and you want to plead guilty you can go home right now," so what does a person do in that situation? It's a terribly hard choice. Even if you're convinced you're innocent and even if you're convinced that the evidence will show that you're innocent, the pressure that the system creates is so strong that it forces people to say that they're guilty and to accept a record of conviction. So that's just a disaster in terms of effective protection of the innocent.

One way to think about the guilty plea system is that it obliterates most forms of visibility and accountability, and one thing that we rely on the justice system for is visibility and accountability. We take it for granted that trials are public trials; the very few instances when the Bush administration has attempted to close proceedings in 9/11 cases it's been enormously controversial and troubling to people, because it creates a veil of secrecy in terms of what's happening. But that's plea bargaining. That's plea bargaining's middle name: you have a complete veil of secrecy and a lack of transparency to anything that happens.

When a prosecutor makes a deal, the assumption that defenders make is that the prosecutor is irrevocably committed to the public's interest and effective crime control. He's making a judgment about the odds of conviction and he's tailoring the sentence to reflect that. If that's what's happening, it's fine. But when things happen behind closed doors, there's no assurance, and the prosecutor is a human being with many interests, many concerns, many conflicting pulls both in terms of office politics, his personal life, the advancement of his own career, and all of those things, any one of which can lead him to accept a much more lenient sentence than the facts actually warrant. So you have a situation where there's no way to know whether we're getting the right people convicted for the right crimes and the right sentences. …

What rights does a defendant give up when he pleads guilty?

Everything. When a defendant pleads guilty he waives his right to a jury, he waives his right to confront the witnesses in open court, he waives his right to a public trial, he waives his right to cross examine the witnesses, and in a real sense, he really waives a good part of his right to the effective assistance of counsel. That's something that many people don't realize. Of course he has to be represented by counsel in a guilty plea, but a lawyer who goes to trial has a strong duty to investigate the case, to interview witnesses, to look for defenses, to prepare for cross examination.

A lawyer who plans to plead guilty can make a tactical judgment that it's not worth his time. If a lawyer says, "I want to grab that deal, and I didn't want to take a chance on waiting three or four days to interview witnesses," the courts consistently hold that that's a legitimate tactical judgment, so in effect the defendant not only waives his right to trial and all that that entails, he also in practice is waiving his right to legal research and thorough factual investigation by his own lawyer.

What kind of pressure is the defendant under to plead guilty?

Part of the pressure is the sentence that the defendant faces. A large part of the pressure is the time pressure on the lawyer himself or herself. We have many different forms of representation: we have retained counsel, we have counsel appointed by the court, we have public defender organizations, so the dynamics play out a little differently for each of these people, but the bottom line is the same: every one of them is under enormous pressure to settle the case as quickly as possible in the great majority of cases.

And so the lawyer's under pressure to see the case as a guilty plea case. These are good professionals for the most part, but they're also human beings, and when a lawyer knows that taking a case to trial means that he's going to spend the next three weeks of his life working for free, that has to color his judgment. … The prosecutor has time pressure, the judge has time pressure, the defendant has sentence pressure, everybody is faced with this type of pressure because of the way the system operates.

So it's really bad, for everyone?

It's a disaster. In my opinion, plea bargaining is a disaster for every one of the parties concerned. But what makes it even more of a disaster is that it's avoidable. …

But proponents of plea bargaining say that without it, the system would collapse.

That general wisdom is so misleading. Like much of conventional wisdom, there's a kernel of truth in it. If every single case went to a jury trial, had the most complete defense and lasted for two weeks or three weeks, then of course the system couldn't handle that without a very large infusion of resources. Even then, the system could handle it if we made the judgment that this was important to us, but we know we're in a society that doesn't allocate enough money for education, it doesn't allocate enough money for homeland security; the reality is that it's difficult to make people aware of the importance of this.

So that's true, as far as jury trials are concerned. But plea bargaining means you're not only waiving a jury, you're waiving your right to any public hearing at all. And one of the areas in which I focus my research was to look at trials without juries. The reality is that the big bottleneck in our system is not the trial, it's the jury trial. You can try cases very quickly and very expeditiously before a judge. Now that means the defendant is still waiving something, but when we think about a guilty plea, the defendant is waiving his right to a jury and his right to confront the witnesses, and his right to cross-examine the witnesses and his right to have a lawyer research the facts and law of the case. He's waiving all of those rights.

In a bench trial, the defendant is waiving only one right and he's retaining the core of the adversary system. A defendant who goes to a trial before a single judge still has the right to confront his witnesses in open court, he has the right to cross-examine them, he has the right to have his lawyer do a thorough, factual investigation of the case, he has the right to raise any legal issues about the interpretation of the statute, he has a right to insist that the record in open court establish guilt beyond a reasonable doubt.

In my judgment, all those things are huge, and those things go 99 percent of the way to guaranteeing the integrity of our system. He also has the right to a fair and appropriate sentence based on an investigation and a judgment of the judge and the probation service, rather than a deal that's cut by the prosecutor and the defense attorney. So all of these things guarantee the public interest and the defendant's interest, just a hair shy of perfection. And for that you can do that with very minimal addition to the total cost of our justice system.

But it's not as efficient.

It's not as fast, but fast doesn't mean efficient when you're running the risk of convicting innocent people, when you're running the risk of overly lenient sentences for guilty people, when you're running not only the risk but the reality of haphazard procedures on the defense side and on the prosecution side. … By giving up the jury, or discouraging the jury trials is I think a better way to think about it, you're retaining 99 percent of the benefits of the adversary system, with only 1 percent of the cost of a full fledged jury trial. …

People believe that we have no alternative, and that's the conventional wisdom that I think is even hardest to accept in all of this, because there are alternatives. The alternatives are not as easy for people because many lawyers find it easier to accept a guilty plea than to go to trial. Trial is more work. Nonetheless, many lawyers love trials. And people don't go to law school so that they can negotiate guilty pleas. People go to law school because they're fascinated with trials.

So once you put in place a system where people get used to this, they would see that it's perfectly possible, it can function with no significant problems, and they actually come away from it with more self-respect and with more professional gratification than they can possibly get in this system of flying by the seat of your pants, guilty plea haggling that goes on in so many places. People have convinced themselves that they have no alternative, but the reality is, it can work very easily if people are willing to put the commitment to actually deciding cases on the merits.

But people will argue, "Well, if the defendant said he was guilty, why bother with a trial?"

What people don't understand is first of all, the person pled guilty because they were given an offer they cannot refuse. We know from The Godfather, you sign a contract because somebody makes you an offer you can't refuse, and that's what the guilty plea system is for the most part.

Now for some defendants, it's a fantastic deal; some defendants are guilty and they get away with murder. That's why the system is bad for the public interest just as much as it's bad for defendants who are innocent or defendants who are overcharged -- defendants who have done something wrong, but it's much less serious than what the prosecutor is claiming. So, number one, the public doesn't understand that.

Number two, the public believes that every criminal defendant has a right to counsel. That is another piece of the conventional wisdom that is just so far out of touch with reality, it's hard to even begin describing it. Any person who had the misfortune of being charged with a serious offense and didn't have the funds to hire a dream team of defense attorneys would discover very quickly what the right to counsel means, and it's a very pale shadow of what anyone would ever accept if they had the means to avoid it. So again, when people plead guilty it's because they know that they don't have the chance of having a really vigorous defense, and they also are being advised by a lawyer who is himself under incredible pressure, a lawyer who is not free, even if he's a dedicated professional, to devote the time to the case that it really requires.

[These are] … problems for an indigent defendant who is forced into the system where he's represented by a public defender who is under enormous time pressure, or an appointed counsel who is being compensated at very, very low rates. But even people who aren't indigent face the same kinds of problems unless they're enormously wealthy; they're scraping together a few thousand dollars for retainer, a flat fee that you have to pay in advance. Practically no criminal defense attorney would ever take a case on the idea that they'd send you a bill later. Every criminal defense attorney, unless we're talking about an extraordinarily wealthy person as a defendant, will insist on payment up front.

Once he's been paid up front, his compensation is identical if he pleads the case out in two days or if he investigates it for six months and then goes to a three week trial. It's exactly the same compensation. So again, the pressure on the retained counsel for the non-indigent, the so-called person of means, who thinks he's going first class because he's gotten the money to hire his own lawyer -- that person is thrown into the same problem and will very quickly find that the pressure to plead guilty is enormous. …

Are defendants punished for going to trial?

Whether you're being punished for going to trial is a question of terminology. People will say that you're only getting the sentence that you deserve; that's the view of people who support plea bargaining. Those who oppose it will tell you that that increment, the difference between the three year sentence that you get if you plead guilty and the 20 year sentence that you get for going to trial, that most of that increment is a consequence of the need to create incentives for people to plead guilty to make sure that people won't go to trial. So whether you call it a punishment or not is a question of semantics.

The reality is that the person who goes to trial and loses that bet, they may be guilty or they may be innocent, but the person who loses that bet is going to get one heavy sentence for the crime they were convicted of, and another heavy sentence for their tactical mistake.

What do you call it? Is it punishment?

I'd prefer not to get into a semantic quibble about whether it's punishment or not, because somebody can tell you that they deserve 20 years in prison for that offense. The fact is, we would not routinely give that sentence to everybody who is guilty of that offense. As a society, we wouldn't need to, we couldn't possibly afford it. … The rate of imprisonment today is four times higher than it was just 10 or 15 years ago. … If society is willing to spend billions more dollars, we could double our prison population. But to eliminate plea bargaining without lowering the sentences that we have would mean a tenfold or a twentyfold increase in our prison population. Nobody would want that or tolerate that.

So to me that just makes very clear that the sentences are being imposed not because of the intrinsic culpability of the person and not because of the need to incapacitate them that long. They're being imposed to grease the wheels and make sure that people don't ask for a trial. …

How would you change the system?

The simple solution is to discourage plea bargaining; in fact you can prohibit any concessions for pleading guilty and also discourage jury trials by giving defendants an incentive to give up the jury only and take their case to a trial before a judge. And in fact, this is not just an imaginary academic idea, this is largely the way that trial system works in Philadelphia, and it's worked this way for decades and all the lawyers find that it works better. It guarantees better results for the public, and it's better for them in reality because they get to be lawyers. What happens basically is that well over 50 percent of the cases are tried before a single judge. About 5 percent of the cases go to a jury trial.

And again, defendants know and lawyers know from experience that juries tend to react in certain ways to certain cases, and that affects how judges will decide cases without a jury. A judge knows that a jury wouldn't convict in a certain type of case, he has to take that into account, or no defendant would accept a trial before that judge. At the same time the system can give slightly lower sentences -- the gap obviously doesn't have to be as great because the defendant isn't giving up as much. This system has worked in practice very effectively for many, many years, so it's not an imaginary idea, and it essentially solves 99 or 100 percent of the problems we've been discussing.

 

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posted june 17, 2004

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