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Forum Post: Widespread Use of Plea Bargains Plays Major Role in Mass Incarceration

Posted 7 years ago on Nov. 8, 2012, 1:14 p.m. EST by LeoYo (5909)
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Widespread Use of Plea Bargains Plays Major Role in Mass Incarceration

Wednesday, 07 November 2012 00:00 By Danny Weil, Truthout | News Analysis


Henry Alford was accused of murder and faced the death penalty. The prosecution said there was enough evidence that could possibly have been sufficient to cause a jury to convict him. Alford was offered and took a plea bargain, despite his pronouncement of innocence.

As Alford's public defender, Tracie Olson, stated: "The evidence was strong but Henry said he was innocent. Henry, however, pled guilty to a charge of 2nd degree murder in order to avoid the death penalty ."

Olson also told reporters that even though she had no idea as to the guilt or innocence of Alford when she took his plea, "I've been a criminal defense attorney in Yolo County since 1998, and I truly believe that innocent people have taken pleas because they felt they were in a situation like Henry's."

To read more articles by Danny Weil and other authors in the Public Intellectual Project, click here.

Long Beach High School football star Brian Banks offers yet another example of how a person wrongfully imprisoned (in this case for rape) based upon his own "'voluntary' act" of writing a guilty confession, took a plea agreement in defiance of the facts and against his own best interests.

In May of this year, thanks to the California Innocence Project, Mr. Banks was exonerated by a court after serving five years for the rape he did not commit but pleaded guilty to.

American's founding fathers understood that one of the greatest forms of tyranny the government could engage in was bringing criminal charges against its subjects, or citizens. A large number of amendments were added to the US Constitution in an attempt to assure the rights of those charged with criminal offenses. These include the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments. Rights of an accused criminal include the right to the presumption of innocence, the right to due process, the right to be informed of charges against them and the right of a defendant to confront their accusers in a court of law. The constitution also provides defendants the right to an impartial, fair and speedy jury trial with the assistance of counsel, and defendants have the right to cross-examine witnesses used against them. It is the government that has the burden of proving the guilt of those charged with a grave crime and beyond reasonable doubt, but even a cursory look at the judicial landscape illustrates this is more theory than fact.

Pleading for Bargains as Opposed to Arguing for Justice

A criminal plea bargain is an agreement in a criminal case where the defendant pleads guilty to a crime, usually to a lesser crime than the original charge, and as a result, waives his or her right to a jury trial. Unbelievably, in the modern criminal system, more than 90 percent of all criminal charges are resolved through plea bargains. It is a system based not on the presumption of innocence, but on the contrary - on the presumption of guilt. Arm-twisting defendants, many of them poor and people of color, into plea bargains means that the government does not have to shoulder its burden of proving the guilt of those they charge with crimes and can simply shirk the constitution for expediency.

Plea bargaining has become historically ubiquitous as the principal, if not primary, method of criminal case disposition in the United States and a historical canker sore on the judicial system. Even as early as 1920, it was thought that 88 percent of convictions in New York were via guilty pleas, up from 22 percent just over 80 years earlier.

As the New York Times reported in an editorial piece on July 16, 2012: "Earlier this year an opinion for the Supreme Court by Justice Anthony Kennedy noted a stunning and often overlooked reality of the American legal process: a vast majority of criminal cases - 97 percent of federal cases, 94 percent of state cases - are resolved by guilty pleas. Criminal justice today is for the most part a system of pleas, not a system, of trials."

This opinion was based on a Supreme Court ruling back in March of 2012, a ruling involving two people who were proven to have ended up with stiffer sentences than they might have received had their lawyers not failed them while plea bargaining. The two defendants took their case all the way to the highest court, each of them asking the Supreme Court to invalidate their sentences under the Sixth Amendment's guarantee of effective assistance of counsel.

The court, by a close vote of 5-4 in both cases, accepted the defendants' arguments and ruled in their favor, upholding Missouri v. Frye, the legal ruling that provides a constitutional guarantee of a fair trial and judicious plea bargaining. Justice Anthony Kennedy wrote on behalf of himself and four of his colleagues, Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. The plea bargain system is really based upon coercion, a legal form of extortion by the state. Prosecutors coerce defendants into pleading guilty by piling on charge after charge, and judges coerce those charged by making it known that the punishment will be much milder if you plead guilty than if you lose after exercising your supposed constitutional rights and go to trial. Retribution can be as swift. Like the Inquisition, this system of duress too frequently results in innocent individuals entering guilty pleas they never would have if the constitution was really put into play.

The current system of plea bargaining has corrupted criminal defense law as it stampedes the constitution, leaving in its wake intimidation and fear. In practice, a defense lawyer's main job is negotiating guilty pleas and subsequent sentences, not defending the criminally accused, as many would believe. Instead, because over 90 percent of criminal cases are resolved through plea bargains, the economics of defense lawyers depends on pushing paper and maintaining good relationships with prosecutors; therefore, it is not uncommon for defense attorneys to allow a client to "take a fall" rather than accuse a prosecutor of misconduct and risk legal retaliation in future cases. Crony legalism is an essential part of crony capitalism, and nowhere is this better seen than in the halls of justice.

Do Plea Bargains Allow Criminals to Get Off Easy?

Popular culture, disseminated by Hollywood movies and television series, depict plea bargains as a way of allowing those accused of a crime to escape justice and "get off easy." In reality, usually the opposite is true.

Plea bargains allow prosecutors to bring charges against far more people than the legal system could process through a system of judicial trials. Thus, they create the material conditions for their own replication. Because less than 10 percent of criminal cases, federal and state, go to trial, plea bargains in effect allow the state to prosecute ten times more cases than they could handled at trial. Plea bargains are also essential for stocking for-profit prisons with a steady supply of "customers" for their corporate shareholders. Plea bargaining both enlists and perpetuates the principles of mass production, deception and mendacity, which in turn are applied quite readily in the whole of our system of criminal "justice."

Plea bargaining has also become an essential element of both mushrooming prison growth and the racially disparate state of American prison populations, with the gravity of the burden falling on the backs of blacks and Latinos. Without plea bargaining, the explosion in prison populations of color, especially those of for-profit prisons, could never be possible.

In his paper, "The Problem With Plea Bargaining: Differential Subjective Decision Making as an Engine of Racial Stratification in the United States Prison System," attorney and sociologist Douglas Savitsky argues that:

The bargains struck by Black defendants tend to be worse than those struck by similarly situated white defendants. There are several reasons for this. Black defendants are generally poorer, and they are thus less able to afford a competent defense.

Second, Black defendants tend to be in a position of lower power than are white defendants. Additionally, and related, because prison has become such a large part of the life course in parts of the Black community, the costs to prison are perceived as being lower by Blacks than by whites. This perception puts Black defendants in a worse bargaining position.

American Justice: The Cult of Efficiency and Deception

The American judicial system has become one in which constitutional rights and protections are sacrificed through mendacity and deception to appeal to a cult of judicial efficiency and economy. The public has been lied to; plea bargaining does not make society safe or tackle the problem of crime itself. This is simply another necessary illusion that is funneled into the minds of the populace to rationalize the commodification of people for profit. The problem with all of this, as the late thinker Hannah Arendt noted in her New York Review of Books article "Lying in Politics," is that: "the trouble with lying and deceiving is that their efficiency depends entirely upon a clear notion of the truth that the liar and deceiver wishes to hide. In this sense, truth, even if it does not prevail in public, possesses an ineradicable primacy over all falsehoods."



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[-] 2 points by TrevorMnemonic (5827) 7 years ago

Good post.

[-] 1 points by MattLHolck (16833) from San Diego, CA 7 years ago

not plea bargain could also result in being detained for a delayed trial

[-] 1 points by VQkag2 (16478) 7 years ago

Excellent post.

Coupled with cuts in spending on legal representation of defendants this is Important, insidious, way we continue our oppression of minorities/poor in America.


[-] 1 points by GirlFriday (17435) 7 years ago

cuts in spending on legal representation of defendants

That is a huge factor right now. Huge. There have been several articles that have come out in the last year that have pointed out that the courts are riding dangerously close to violating rights as is. If people do not start paying attention to the cuts for legal representation then it will get a whole lot worse.

[-] 2 points by VQkag2 (16478) 7 years ago

I think the courts ARE violating rights. I've watched for decades as we cut legal defense spending, & and created harsher sentencing, all in the name of tough on crime. All since the success ofthe civil rights movement, All an attempt to oppress the minorities/poor.

Insidious, Jim Crow'ish.

And mostly un noticed.


[-] 2 points by GirlFriday (17435) 7 years ago

Is there prosecutorial misconduct? Yep. Do faux privatized prisons present a problem? Yep. Are there people sitting in jails because they cannot make bail? Yep.

There are 101 steps along the way where changes need to be made.

Prosecutors can walk in and make it look like the odds are stacked against you, even when they are not and you accept the plea deal believing that this is true. That is legal AND it's textbook CJ 101.

So, what it boils down to is representation. Public defenders need to be funded. They need to be paid fairly and there needs to be more of them.

Further, I would argue that the information is available regarding things like eye-witness testimony. It has been out for over 30 years and is available for the general public. It would seem that it is intentionally ignored.

[-] 1 points by VQkag2 (16478) 7 years ago

All true. There is so much work to do.

It seems impossible, overwhelming, especially since so few people acknowledge the problem. So few have any sympathy/concern for the accused.

So much, and so difficult. It will take years of street action.

Michael Moore covered a privatized youth prison scandal in Pa. I forget which of his films, but it was a great illustration.

[-] 1 points by GirlFriday (17435) 7 years ago

I didn't see the film. I am aware of that particular episode. It illustrates the need to step in and fight at the local levels to prevent this type of relationship from occurring.

I am going to whip this out and then take off to mull this over. I doubt very seriously that it will take years of street action. We could start a thread that is a collection of data that deals specifically with the cuts made to public defenders on a state by state basis and/or a thread that specifically deals with counties and cities that are considering privatizing their jails and prisons. Not something that is a circulate a petition but rather a collection of data.......with the removal of emotion or as much that we can.

Let's kick around what we do have and keep it open enough so that if there are disagreements then maybe the other party is presenting information that we need to look into.

[-] 1 points by VQkag2 (16478) 7 years ago

Sounds like a valuable 1st priority. Gathering info, educating people, is critical, I also support patitions, perhaps OWS street action, and organizing people (once educated) to pressure, agitate all pols for real change.

[-] 1 points by GirlFriday (17435) 7 years ago

This is part and parcel of what is called an adversarial system. The American people were never lied to.

If you go back and look at Gideon v Wainright then you see a whole different ballgame. They locked up so many innocent people that had no clue how to defend themselves. Once that kicked in the prisons let out many, many people.