The Problem Isn’t Plea Bargaining, It’s The Trial Tax
Jan. 25, 2016 (Mimesis Law) — The Washington Post has been taking an “in-depth look” at the right to a fair trial. One of the articles, written by Tim Lynch, Director of the Cato Institute’s Project on Criminal Justice, draws a bead on the plea-bargaining process:
Unfortunately, the system that is described by our school teachers and that Americans see on television and in the movies is now defunct. Jury trials are now rare events in the United States. In fact, about 95 percent of the cases moving through the system will not go to trial. The overwhelming majority of cases will be resolved by plea bargains.
In a plea bargain, the prosecutor typically offers the defendant a reduced prison sentence if he agrees to waive his right to a jury trial and admit guilt in a brief hearing before a judge. Prosecutors use their power to pressure people who have been accused of a crime, and are presumed innocent, to waive their right to a trial and admit guilt.
Which is true, so far as it goes. Plea bargaining isn’t necessarily a bad thing, though. If the point of a trial is to make the government prove the guilt of the defendant beyond a reasonable doubt; and there’s video footage of the defendant committing the crime, along with eyewitnesses, a Mirandized confession, and the defendant’s fingerprints on the smoking gun, there’s probably no point in having a trial. Phrased another way, oftentimes guilt or innocence isn’t the issue, and the defendant (and his attorney) is simply looking to get the best deal possible. Lynch gets this part:
But from a defendant’s perspective, plea bargaining extorts guilty pleas. Casual observers of our legal system will sometimes say that they would never plead guilty to a crime if they were innocent. An easy claim to make — but it is another thing when your freedom is actually on the line.
Imagine learning that the government has a “witness” who is willing to tell lies about you in court. And then your own attorney tells you that his best advice is for you to go into court, say you’re guilty and accept one year in prison instead of risking a 10-year prison sentence should the jury believe the lying witness. It’s an awful predicament for innocent people who get swept up in criminal cases.
But here’s where it gets complicated. The problem isn’t going to trial, as such. The problem is going to trial and losing. If the difference is between 1 year for a guilty plea, versus 10 years after losing at trial; and you only have a 50% chance of winning….well, do the math.
Every defense attorney has had this conversation with a defendant at some point or another. Most have probably had conversations with defendants in which they tried to talk their client out of a plea, but the defendant didn’t want to run the risk.
But back up a second. Why should there be such a disparity between a guilty plea and a guilty verdict? That’s the trial tax. From the prosecution’s (and most judges’) view, it as an incentive to prevent criminals from wasting their valuable time. From the defense perspective, it’s to punish the defendant for exercising his constitutional rights.
There are many different ways of imposing a trial tax. One way, of course, is for the prosecutor to request more prison time after a trial than a guilty plea. Another way is charge bargaining, where the prosecutor offers to amend the charges to something carrying a less severe penalty. Charge bargaining is particularly effective when the offer is a reduction from a felony to misdemeanor, and even more so in cases involving mandatory minimums.
Except, the trial tax isn’t a constitutional, or even statutory, requirement. It’s a product of bad habits, and bad incentives. If the point of the criminal justice system is to push defendants from arraignment to sentencing as efficiently as possible, then the trial tax makes perfect sense. If the point is to discover the truth of the allegations against the defendant, then the trial tax is just another way to tilt the playing field in favor of the state.
So what to do about it? Reform of this aspect of the justice system has to come mostly from judges. It’s the judge that imposes the trial tax, at sentencing, but there’s nothing saying that he or she has to collect it. Essentially, then, judges need to change their thinking (I know, good luck with that, right?) on defendants who lose at trial. It’s not a waste of time, it’s what’s supposed to be happening. This is yet another reason why mandatory minimums need to go. Usually, the mandatory minimum has nothing to do with punishment, it’s just a bludgeon to coerce a plea to a lesser offense.
Want to reform the system to make it less coercive? Then make it so the defendant doesn’t stand to lose anything by asserting his innocence.