the plea
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stephen bright
Our courts have such a large volume of cases and so little resources devoted to providing representation to people accused of crimes, that this sort of fast food justice is what weve ended up with.

… In many courts in this country we have a system of assembly-line justice, where people meet their court appointed lawyer often in court, sometimes even in the front of the courtroom, talk to them for five minutes, plead guilty, are sentenced, and that's their entire exposure to the criminal justice system.

What kind of justice is that?

Well, it's not real justice and of course it also means that the prosecutor has all the power, not only for determining what charge the person pleads guilty to, but also the sentence, because in most places the plea bargain includes, "You plead guilty, you get this particular sentence." So the defense lawyer doesn't really do anything except communicate that to the client, and the judge doesn't do anything except accept the recommendation by the prosecutor.

Describe the defense attorney's job.

The job of the defense attorney is to first of all investigate the case, to know what it is that happened in a particular incident, but also to investigate the background of the client, because even for people who may be guilty of an offense, the question of do they go to jail, do they get probation, do they go on some sort of program, if they go to jail, how long do they go to jail for -- those are all questions that depend upon individual circumstances of the client.

How can they do all that if they meet the client the same day that the client is sentenced?

Well, they can't, and we see lawyers who meet their client the day before, or lawyers that meet their client in the courtroom and not only meet their client and only spend five minutes with them, but often meet client after client after client. I was in a courtroom where one lawyer had 94 clients in one day. So obviously the lawyer can't know anything about those people, not even to put the name with the face, if they have 94 cases.

photo of bright

Stephen Bright is a defense attorney, professor of law at Yale and Harvard Universities and director of the Southern Center for Human Rights. He believes America's court systems are "like a fast food restaurant," processing cases through the rampant use of plea bargains. He talks about how poor defendants invariably receive inadequate defense assistance and argues rich people get "a completely different kind of justice." Bright also details the many grave, long-range problems facing a person of modest means who pleads and gets probation. "One reason a lot of people plead guilty is because they're told they can go home that day ... they'll get probation. What they usually don't take into account is that they're being set up to fail." This interview was conducted on Jan. 29, 2004.

We're seeing court systems that are run about like a fast food restaurant. A fast food restaurant may be a little bit better, because at least there's some choices and a menu there for the customers. But people are processed through court not understanding what's happening to them, with no investigation by the lawyer, no understanding of who they are, when they're sentenced. They're just processed through the system.

Judges say they're sure defendants are guilty when they accept the pleas.

The way in which judges accept guilty pleas is done in a way that almost insures that people are going to plead guilty. They're asked leading, conclusory questions, where the answer is obvious.

The other thing is, if you're in a court that's taking pleas all day, all the defendants who are there sitting in the audience see other people pleading guilty. It's just a ritual that everyone goes through. Everyone knows the answers to the questions and everyone knows that if you answer the questions incorrectly, the whole thing will blow up and the judge will yell at you and you might not get the bargain that you're going to get. So everyone answers, "Yes, yes, yes" to all the questions and the judge says, "Well, I find that this is a knowing, intelligent, voluntary plea." The fact is, the client probably didn't even understand the process they just went through. …

One of the reasons that so many people plead guilty is because they really don't have legal representation. Because when a lawyer meets somebody in court, talks to them for five minutes, they plead guilty and are sentenced, that's not legal representation. A high school student could do that. You don't need a lawyer for that. That's just a clerical function that the lawyers are providing. But our courts have such a large volume of cases and so little resources has been devoted to providing representation to people accused of crimes, that this sort of fast food justice is what we've ended up with. …

It's not unusual for lawyers who handle a high volume of cases to not know their clients' names or know anything about them. I go to courtrooms all the time where you see the defense lawyers coming and they'll stand up in the front of the courtroom and call the names of their clients because they don't know who the clients are and ask them to raise their hand. They're just dealing with such a high volume of cases, they don't even keep files on the cases, because they're only going to be dealing with this person for five or 10, 15 minutes, and then the case is over. …

Is it a question of money?

It's a question of several things. It's a question of money because there have to be adequate resources so that lawyers have few enough cases that they know their client's name, just as a starting point. But beyond that, that they can actually represent their clients.

Secondly, it's a matter of structure. There really need to be public defender offices in every jurisdiction. A lot of people don't realize that that's not the case in many places. It may just be a lawyer who contracts with the court and they just handle all the cases for a flat amount of money. And of course those lawyers have a built-in conflict of interest, because they're making money on their private practice, so they don't want to spend any time on their court-appointed cases. I mean, some do, because they're very conscientious, but most are going to try to spend as little time on those cases as they can.

They're also going to lack the expertise in dealing with the issues that come up, the scientific evidence that comes up, and dealing with clients that have special needs, like mentally retarded or mentally ill people. They're just going to be not equipped to handle cases that come into the court system.

It's different if the defendant has money?

For people that have money, it's a completely different system. You often see that in court, where you'll see all these people herded through the system represented by a court-appointed lawyer just plea after plea after plea. And then the case comes along where somebody's represented by a lawyer who's paid and their case is completely different. The minister's there, the employer is there, the parents are there. The person is dressed up with a coat and tie on. A presentation is made about why this person ought to get a particular sentence, why the case ought to be reduced to a lower crime than what's accused. It's a completely different kind of justice. …

A lot defendants who plead guilty end up on probation.

One reason that a lot of people plead guilty is because they're told they can go home that day because they'll get probation. What they usually don't take into account is that they're being set up to fail. They're going to be told to report every month to a probation officer, or maybe every two weeks. They probably aren't told that that's going to cost them $40, or some fee depending on where they are, every time they come. They may be told they have to go to classes. They're not going to be told, probably, that they have to pay for those classes every time they go. They'll be fined, and more likely than not the fine will be more than they can afford.

So before long they're going to be behind in their payments and then they probably won't go to see the probation officer because they don't have the money that they're supposed to pay and then a warrant is issued for their arrest and then they're sent to prison for violating their probation. So in the short term it looks great to the person; what they haven't realized is that now there are all these responsibilities that they have, which, because of their poverty and their financial inability to pay, they really don't have any serious hope of meeting.

Why do they have to pay?

It's a relatively recent phenomenon, charging people to be on probation. At one time probation officers worked for the state and their goal was to help deal with whatever problem got this person into the criminal justice system. Now in lots of places we have private probation companies, which basically are just for-profit businesses, which are collecting fees from people every time they come by and meet a probation officer, and then maybe conducting classes and charging for those classes, or renting out ankle bracelets that monitor the person's movements and so forth. All of that is generating income for this company, but it probably is not dealing with whatever behavior brought the person into the court.

Who pays for that?

Unfortunately, too often it's paid for by the defendants, and illegally, because the Supreme Court of the United States has said you can't lock people up just simply because they can't afford to pay, but the courts never inquire into that.

At the time people are put on probation, there's no inquiry into how much money they make, what they can afford to pay. At the time they come back in because they haven't paid, in most courts there's no hearing to find out that the baby had to go to the hospital and somebody lost their job, that some other emergency in the family kept them from making the payment. It's just a question of, "You owed this much money and you didn't pay it." And slam, off you go to jail. The hope a lot of times is that the family will somehow mortgage the house, sell the car, do something to come up with the money so that the person can get back out on the streets again. But we're really running debtor's prisons as a result of this because a lot of families can't come up with the money.

Is it really all about money?

I think it's very much about money. And I think one of the corrupting influences in our courts is that many localities depend upon the courts as a major source of revenue. … When the courts are in pursuit of profit, that's in conflict with being in the pursuit of justice. …

Why do so many cases end up in plea bargains?

… I think what has happened is that the volume of cases has grown. We've criminalized so many things in this country. Sure, there's some serious crimes, but the vast majority of cases coming through the courts are the quality of life crimes, somebody who's arrested for vending without a license -- that means a homeless person who's shining shoes without having a license. Somebody who tries to get on the bus without paying their fare. Somebody who's hanging out in a place where they're not supposed to be and they're suspected of selling drugs, but they don't have any drugs on them. Those kinds of cases are coming into the court system all the time and the volume of those cases has just meant that people are not getting individual attention from their lawyers and they're not getting individual attention from the judges. They're just being herded through the system in sort of assembly line manner. …

One of the first things I want my students to do is to go down and watch court when people are pleading guilty. In the Southern states where I practice, you go to the courthouse and it looks like a slave ship has docked outside the courthouse. All these African-American men in orange jumpsuits, very degrading, are brought into the courtroom handcuffed together, fill up the jury box, fill up the first few rows of where the people sit, and then one after another guilty plea, guilty plea. Sometimes they'll bring them up in groups and they'll all plead guilty in a group of five or 10 and then they'll be moved along and the next group. And 100 people will be dealt with like that. The reality is not Law and Order; the reality is people being processed like that.

But that's not the public perception.

Yes, the perception is just so different. The perception is that people have lawyers who are really contesting the police case. Often the lawyers are depicted on television as not only working on the case, but also being very devious in many ways and trying to get the guilty people off and all that.

The truth of the matter is the lawyer may only spend five minutes with the client in the case. The truth of the matter is during the investigative stage, while the police and the prosecution may be doing an investigation, the person may be languishing in jail without a lawyer at all. We see people go months without ever having a lawyer even appointed to their case, and by the time you finally get a lawyer -- three, four months after you've been arrested -- it's really too late to investigate in many cases. The trail is pretty cold at that point. In addition, you're in jail, whereas a person who gets a lawyer appointed the next day might be out on bond, which greatly influences how your case is going to be handled later on. A person who's out on bond is much more likely to get probation as a sentence than a person who's in jail when their case finally comes up for a plea.

Who is plea bargain good for? Who is it bad for?

I think some people would say that it's good for the system. I think that's wrong, because I think it's really undermines the credibility of the system. It's good for the prosecution. The prosecution completely controls what happens: what crime that the person pleads guilty to is, what the sentence is.

A lot of judges like it because it means that their dockets move very quickly. Judges don't like to work any more than they have to, like many people in society, and if you've got a lot of cases and you're going to take time with each case, that's going to be a fairly time-consuming process. … We would have to have a lot more judges and more prosecutors and more defense lawyers if so many cases weren't disposed of with guilty pleas.

Can't we have more?

Well, I think we can. For my whole career at the bar I have been told that there's not enough money -- not enough money for defense, not enough money for judges, not enough money for enough courtrooms and all that. And then I turn on the television and here the president of the United States talking about going to Mars. I just don't understand it, because it seems to me that one of the most fundamental things in our society, besides education, is justice and we ought to have a justice system that people have faith in and that has credibility. The Supreme Court building says "Equal justice under law." That's not true. The criminal courts of this land are like stockyards in which people are just processed through like cattle on their way to slaughter. That's not equal justice. It's not individualized justice. It's not really justice at all.

Why do we accept it?

Because we're not willing to spend the money on having justice. If we wanted to have more individualized justice, we would have to pay more money for judges, for prosecutors. We'd have to have more courtrooms. Right now we're disposing of a huge number of cases in a very small amount of time per case and at a very low cost per case. Some of these lawyers who represent people and spend five, 10 minutes with them and do 20, 30, 40, 50 cases in a day, they're doing those cases for $20 a case. Obviously if people got real legal representation, it would cost a lot more than that. …

Do people pleading guilty understand the grave consequences of agreeing to probation?

No, I don't think people understand at the time they plead how many conditions are going to be placed on the probation… Many don't realize that they're giving up their protection against searches and seizures, that any time a probation officer can come and search them, search their house, which is fairly disruptive. They don't realize they're going to be on probation for 10 years, which means that basically for 10 years any possible deviation, or anything that makes the power structure unhappy in that community can mean they're going to prison. …

They can't drive. They can't vote. There may be other consequences. For some people there are immigration consequences, which they don't understand. They may be deported as a result. If they're in public housing not only will they be thrown out of public housing, but sometimes if it's a son or a daughter, the mother may be thrown out of public housing because of zero tolerance. They'll lose public benefits. Many people plead guilty in traffic matters … and lose their driver's license. In many places in this country where there's no public transportation, losing your driver's license is losing your job. You're not going to have a job because you're not going to be able to get to work.

The irony of this is that often people who will be getting first offender treatment or be getting some non-sentence in exchange for being put on probation, the reason they're getting that is because these are the people that are seen as the less culpable people, the people that really don't deserve an extremely long sentence. But then when they don't live up to all those conditions, which may be impossible, then they end up with some draconian sentence, not for the crime they committed, but for their inability to live up to the conditions of probation. That doesn't make any sense.

What's the point of it?

I think the point of the legislature, and I suppose the governors and judges, in having those laws is the thought that by having this huge draconian sentence hanging over somebody's head it's going to pressure them year after year into meeting the conditions of probation.

It's unrealistic on several different levels. One, at the time people plead guilty and accept the probation, they're really not thinking far enough ahead to think about what the consequences are. Secondly, it just doesn't take into account the people that are often getting these sentences. Most of the people in the criminal justice system are poor, very poor. They're people struggling to survive. Their life is difficult enough as it is just simply trying to find food and find work and find shelter every day. So when we add a whole lot of things to that, there's not a strong likelihood that they're going to be able to meet those things. …

I think many people [on probation] feel that it's sort of like being in debt to the company store; you can't get out of it, it goes on year after year, you get behind in the payments and they refinance it. The courts are sort of like finance companies now, they're trying to collect all this money from people and of course the people don't have any. This is like trying to get blood out of a turnip. … They can't pay, so the probation officer renegotiates with them and sometimes they even go back to court and extend the probation and so they're always paying. It really is very much like a high-interest loan. It's like you can never get it paid off, particularly if you're poor. So it just goes on and on. …

What would you advise a client who was innocent who was offered a plea bargain?

Ultimately the decision, of course, is up to the client, but I think most lawyers would advise somebody in that situation -- particularly if you're going to spend a lot of time in prison -- you should take this offer because it's going to get you your freedom. … But some people absolutely won't do it and are very insistent, "I didn't do the crime, I'm not going to plead guilty, I don't want a conviction on my record for it." Of course, if they're convicted anyway, they're going to have the conviction on their record, but at least they're not going to have an admission that they did it.

Can you understand that?

Why somebody would do that? Sure. I think that for somebody who is innocent, to plead guilty is going to torment them for the rest of their life. They're always going to think, "I shouldn't have done that. I've been branded now as a murderer, I had nothing to do with the murder." But it's really a Hobson's choice, because spending the rest of your life in prison is not very good either. …

What is the judge's role in plea bargain negotiations?

Judges aren't supposed to participate in the plea negotiations at all. Pleas are supposed to be negotiated between the prosecution and the defense. The judge always has the power to reject the plea offer, and many judges will, if they don't think the sentence is severe enough, or for whatever reason. But in terms of being engaged in the day to day negotiations of the plea, that's really not something a judge should be doing. The judge is supposed to be a neutral impartial arbitrator in the case.

In different jurisdictions … judges are more involved in some places than others, and certainly everybody knows that in lots of places the judge brings everybody back into his office and sits down and basically twists arms until the cases get worked out, particularly judges who want to get cases off their trial calendar.

Is this legal?

I don't know that it's illegal. I think there are questions if the plea is not ultimately negotiated as to whether the judge can really stay on that case.

Is it ethical?

I don't know the answer to that question. First of all, the canons of judicial ethics vary from jurisdiction to jurisdiction. I think that there are places where you'd say that is unethical. I think there are probably places where they would say it's not. I'm not sure that there's a clear-cut yes/no answer to that, because it is a fairly widespread practice. …


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posted june 17, 2004

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