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When the Innocent Plead Guilty

After serving as a criminal defense attorney, federal prosecutor and now United States District judge, the Hon. Jed Rakoff knows what works — and what doesn’t — in the criminal justice system.

Rakoff, who sits on the Federal District Court in Manhattan, N.Y., spoke recently at the USC Gould School of Law’s Neiman Sieroty Lecture on “Why Innocent People Plead Guilty.” The annual talk is named for Allen Neiman ’56 and Alan Sieroty ’56, who were former classmates and law partners.

“The criminal justice system is nothing like you see on TV — it has become a system of plea bargaining,” Rakoff said.

Today, only 2 percent of cases in the federal system go to trial, and 4 percent of cases in the state system go before a jury. As a result, accepting a deal from prosecutors — despite one’s guilt or innocence — has become a common choice for individuals accused of a crime.

“Plea bargains have led many innocent people to take a deal,” Rakoff said. “People accused of crimes are often offered five years by prosecutors or face 20 to 30 years if they go to trial. … The prosecutor has the information, he has all the chips … and the defense lawyer has very, very little to work with. So it’s a system of prosecutor power and prosecutor discretion. I saw it in real life [as a criminal defense attorney], and I also know it in my work as a judge today.”

Taking such a bargain is arguably rational behavior for defendants. Even if they think that they are very likely to be proven innocent, the cost-benefit analysis says to take the shorter prison term, rather than run the horrible risk of a much longer one.

prison

Rationality, though, doesn’t mean that they are telling the truth or that they are really guilty. It means that they are trying to live their life in a condition of extraordinary duress, in which lying might actually seem the least bad alternative. In this they are much like the victims of torture, from whom the truth can’t be reliably expected. Just as a tortured individual will readily confess to false and even impossible things, individuals offered a plea bargain will try to make the best of a terrible situation.

As it has often been said, either the United States imprisons way too many people, for way too long, or else we are the most evil industrialized nation on earth. Prison has become our answer for everything; it has become the one penalty we apply to all problems. Worse, prison has become a social status as well as a penalty of limited years: Former prisoners are denied voting rights. They face reduced employment opportunities, facilitated by the maintenance of criminal records. They are deliberately isolated from family and community in the social services and family court systems. Prison and its consequences are becoming a caste system.

Prison promises to answer all sorts of social problems, or at least to render them invisible. In the form of the plea bargain, prison proposes in effect to establish guilt and innocence as well: Threaten someone with prison, and they will confess, and then we will give them (what else?) prison. Are they guilty? (Does it matter?)

Consider that the length of the sentence that might result from a trial plays a big part in determining whether an individual agrees to a plea bargain. And yet the length of the sentence has absolutely nothing to do with the actual guilt or innocence of the accused. His guilt or innocence lies in the past and can’t be changed at all anymore. Yet we readily tolerate procedures for finding guilt and innocence that are sensitive to a wholly unrelated variable.

This ought to shock us, but it doesn’t. It ought to disgust us, not simply for the human cruelty of it, but for the violence it does to the truth. If scientists sought truth this way, we would despise them. Why do we tolerate it elsewhere?

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95 thoughts on “When the Innocent Plead Guilty

  1. Excellent post, Jason.

    It brought to mind a This American Life piece from last fall. The entire program is important, but the story “Act One: Kim Possible” is a must hear for people who are interested in this. What stands out is how the obtaining of false confessions doesn’t actually need a villain: it’s baked into the current system, and occurs even when all the parties involved only want to get at the truth.

    It’s one of the reasons I maintain that the some of the best long-from journalism being done today is produced by public radio.

    If you haven’t heard it, you should. It’s here.

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      • I think most of them either delude themselves to thinking that most defendents are guilty or at least guilty of something even if it isn’t the exact thing they are being charged with. To them they obviously had to have done something wrong to get arrested and if its what they actually are being charged with, thats a happy coincidence. Yes, I’m stealing this from DiscWorld.

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      • I was recently on a phone conference with a company providing digital forensic services – most of their forensic analysts are ex-cops, and certainly the people I was talking with were. This statement stuck out for me (paraphrase):

        “We won’t take any defence work – we don’t work with bad guys”.

        And that’s the police mentality right there – being accused of a crime proves you’re a “bad guy”. The point of a trial isn’t to discover the truth, it’s to confirm that the truth is what the prosecution says it is, and that anyone who disputes it is a lying scumbag.

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  2. I’ve had several conversations with defense attorneys that boiled down to the cost of trial to the governing body is the only real bargaining chip they have with prosecutors. With the potential of a plea resulting in fines, fees, etc. and sparing the costs of a trial on the legal jurisdiction’s side and legal cots, time, and unknown outcome on the defendant’s side, there’s every incentive to subvert the trial system for pleas.

    When you combine this with the costs of attorneys, the over-crowed court system, where things can drag out for a long, long time, there is little to suggest we have a justice system based on guilt or innocence and one, instead, built on the tension between a person’s economics and the jurisdiction’s economics. Add to this the for-profit prison industry, which seems to have some interest in garnering clients while they’re young and the weak link in the chain under tension will always be the individual.

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  3. In this they are much like the victims of torture, from whom the truth can’t be reliably expected.

    Brutally stated, but dead right.

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  4. The notion that an innocent person might plead guilty comes with even broader social criticism than this, but I suppose we can leave that to scholars of race, economics, and psychology.

    As a lawyer, the part of this complex of pressures that disturbs me the most is popular disdain for the notion of due process, and the cheap rationalizations for it that result. “Well, he’s probably guilty of something” isn’t even close to a good enough justification if the system incentivizes an innocent person to plead guilty.

    We fear crime and violence, of course, and the climax of the adversarial justice system, a trial, is frequently all about competing fears. The irrationality embedded in that process is disturbing enough, but unavoidable unless we are to switch to an inquisitorial system or remove humans from the decision-making process.

    The best solutions I can offer are better civics education for high school students (so as to make citizens more aware of why their legal rights are important) and more resources for the criminal justice system, in particular PD offices and the courts themselves so more cases can be tried on their merits on something approaching fair terrain.

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    • Well of course he’s guilty of something – far more than enough behaviours are criminalized to guarantee that everyone over about ten years of age is guilty of something.

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  5. I find better civics education to be a tremendously underwhelming response.

    Try this: Radically reduce the number of crimes for which prison is the punishment. Implement many more fines, including a means-tested component to prevent class-based inequities. Even consider reinstating corporal punishment, rather than prison, given how prison wrecks so many lives. Abolish the permanent aspects of the penal system, like disenfranchisement and the permanent criminal record – allow these records to be used only in subsequent sentencing, if even then.

    The modern West is very odd in its huge reliance on prison. Prisons have always been known, ever since ancient times. Only we place so much trust in them, and it’s very far from clear that we should.

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    • Abolish the permanent aspects of the penal system, like disenfranchisement and the permanent criminal record – allow these records to be used only in subsequent sentencing, if even then.

      This is an excellent suggestion. I would add voting rights; I don’t think they should be revoked at all, but if they are to be, they should be automatically reinstated upon release from prison.

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    • I propose better civics education not as an immediate solution to the issue of innocent people forced to plead guilty.

      Rather, I offer it as a catalyst for a cultural shift towards increasing respect for notions like the inherent value of due process, the presumption of innocence, and the solemn importance of serving rationally and gladly on jury duty.

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    • I’d resist corporal punishment. Doesn’t fit well into contemporary notions of what constitutes cruelty even if we could approximate proportionality.

      But that doesn’t mean the idea of non-incarcerative punishment should be discarded. Far from it. Liberties can constitutionally be restricted as punishment for crimes, that might be effective at both deterrence and rehabilitation, consistent with justice, and prison surely isn’t the only way this can be done.

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      • Liberties can constitutionally be restricted as punishment for crimes, that might be effective at both deterrence and rehabilitation, consistent with justice, and prison surely isn’t the only way this can be done.

        I’d like to see the word restitution in there somewhere.

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      • I agree with Jason’s suggestions except for corporal punishment. Cat O Nine Tails or X number of lashes are not more humane in any fashion. If you want less brutality then using corporal punishment as alternative to prison seems to have an obvious flaw built in. Other than that I’m just an ol soft on crime liberal type.

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      • I don’t mean to endorse corporal punishment unequivocally. Only that it begins to make sense on certain margins.

        What kind of rehabilitation is offered by thirty years in prison? Not a whole lot. Thirty lashes with a cane isn’t pretty, and it might even be cruel, but it doesn’t have to destroy someone’s life. There’s still a life left at the end to rehabilitate.

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      • Given that beat downs are often used as a gang initiation or that very hard/ grueling physical effort is part of military training using physical pain as punishment really doesn’t work. In some societies going through brutally painful initiation rites is how you become a man. Especially for young men, toughing out pain is a sign of strength and a way to prove manhood. 30 lashes would be a nifty initiation rite into manhood in some subgroups.

        There is a difference between punishment, rehabilitation and just plain keeping a nutjob out of society. I’d say we are better off being clear what each thing we do is aimed at. We would be better of with more schooling, MH treatment and drug trt for most offenders.

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      • I take ‘s point that restitution ought be included as a goal of the criminal justice system imposing punishment on a criminal.

        Incarceration, of course, does very little to accomplish this goal, at least as currently practiced.

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    • Try this: Radically reduce the number of crimes for which prison is the punishment.

      This.

      But really, our culture of incarceration, and crime and punishment more generally, is fucked up on so many levels the case against it is overdetermined.

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      • Yeah, +10,000.

        Good post, Jason.

        Also, most of the people copping pleas are suffering from mental illness. Prisons and jails are (I’d say more than 50%) punishment for the mentally ill in lieu of treatment.

        Really, we don’t need prisons much at all. I remember when that was a laughable lefty-liberal claim that was “too soft on crime” and “naive.” Now it is obvious and realistic.

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      • Concurred. This seems to be an area where everyone or many people think mass incarceration is a bad idea but everyone disagrees about which crimes should be punished without imprisonment or receive lower sentences.

        I think the problems are:

        1. Victim’s rights goes cross-ideology. I went to a heavily Democratic-leaning law school and there were serious disagreements among the crim types about whether being liberal required being pro-defense or pro-prosecution.

        2. DA or ADA is a very handy stepping stone to a political career. Generally criminal defense is a great way to shoot yourself in the foot for a political career.

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      • “I went to a heavily Democratic-leaning law school and there were serious disagreements among the crim types about whether being liberal required being pro-defense or pro-prosecution.”

        I would say any ideology worth its salt would be pro-justice.

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    • “Try this: Radically reduce the number of crimes for which prison is the punishment. Implement many more fines, including a means-tested component to prevent class-based inequities.”

      I agree with this statement as it stands on its own, but I’m not so sure it really addresses the fundamental problems you discuss in your post.

      If you could waive a magic wand and implement fines and corporal punishment for whatever we decide is non-prison worthy, you’d still have have people of a certain income level and ethnic background being bullied/tortured into confessing for those crimes that we agree do merit prison.

      And for the rest, we’d have the same people that do time right now being forced into paying fines and being beaten (or whatever you specifically mean by corporal punishment) for crimes they didn’t commit. That’s a cheaper universe, but I’m not convinced it’s a better one.

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    • Try this: Radically reduce the number of crimes for which prison is the punishment. Implement many more fines, including a means-tested component to prevent class-based inequities.

      How about we restrict people’s liberties *without* prison? We have perfectly functional tracking systems.

      Someone steals a car, we slap a tracking anklet on them for five years. Any cars go missing in the future, we check the location against the database of people who stole cars.

      Bam, there’s basically a solution to all property crimes, right there. We could stop all repeat offenders, right there. Stop throwing them in prison so they can make connections, just give them a tracking cuff for the same amount of time, and say ‘You try that again, we’ll just come and arrest you’.

      Prisons are a relic from a time when *we didn’t have the power to monitor what people were doing*, so we had to throw them in a hole so we *could* keep track of them. That is the *purpose* of prisons, that is the entire reason they exist.

      As we, as society, *can* start monitoring people, we don’t need prisons. Period. It’s not actually debatable anymore. It’s like attempting to operate the damn Pony Express, and will continue to get stupider and stupider.

      We need like five prisons, in the entire country, for those violent idiots that repeatedly hurt people *despite* being monitored.

      (Cue idiots complaining about monitoring people in three…two…one…)

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      • Oh, and as for other crimes, one that would be hard to detect even with tracking in the real world, there’s still no reason to have ‘prisons’…have a community somewhere out of the way, with limited access. Cameras everywhere, everyone gets a tracking anklet too.

        All crimes that happen there are *methodically* tracked down, none of this prison rape and violence bullshit . And, yet, would not actually need that many guards.

        There would be jobs available there to help maintain the place, and possibly other jobs too, but none of this nonsensical ‘We shall rent private companies prisoners at four cents an hour’.

        It could cost approximately a zillion dollars less than operating prisons, which somehow average 30,000 a year per prisoner.

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      • I am not opposed to this for first time offenders if it comes in with rehabilitation efforts but my concerns are

        1. What do you about repeat offenders and the truly incorrigible?

        2. How about people who commit severe financial crimes like the infomercial guy who was just sentenced to ten years and Bernie Madoff?

        3. People who commit violent crimes?

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      • 1. What do you about repeat offenders and the truly incorrigible?

        I am rather dubious there would be repeat offenders if the result of every robbery was, within the day, the police show up and take back the stuff you stole, and give you a fine. But see my followup.

        2. How about people who commit severe financial crimes like the infomercial guy who was just sentenced to ten years and Bernie Madoff?

        What do you mean? Are you asking how we’d vary levels of punishment? Or are you asking if we’d be able to stop them again?

        3. People who commit violent crimes?

        See my followup, and that also applies to people who simply do not stop committing crimes even while monitored. We should not only monitor them, but restrict their movements to a specifically monitored area, like a town built for such purposes.

        And, of course, if they *still* commit crimes (Or try to escape), yes, lock them up.

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      • “Someone steals a car, we slap a tracking anklet on them for five years. Any cars go missing in the future, we check the location against the database of people who stole cars.”

        Which is a great idea but won’t really fly when the privacy fetishists rule the public conversation.

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      • Damn, I largely agree with DavidTC. Will wonders never cease.

        For repeat offenders, eventually they get prison time, or perhaps work farm, or something. I think for most, letting them rot in a cell is a bad idea, keep them busy doing something useful, or going to school. For the hopelessly violent/socio/psychopathic, they get to sit ina cell.

        For the Madoffs, they have to work, to pay back what they stole, but in a career nowhere close to what they were doing before (Bernie doesn’t get to set foot in a bank or financial services office, etc.).

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      • Which is a great idea but won’t really fly when the privacy fetishists rule the public conversation.

        You are 100% correct. It seems like every time I propose this, people are horrified that someone would be tracked via GPS instead of being in prison. (Which as we all know has near-total privacy.)

        I’m actually a little amazed no one showed up to complain this time.

        The entire solution to crime is to slowly take away privacy and allowable range of movement. Whatever is the least restrictive that can assure us they’re not committing the crimes again.(1)

        A range from just ‘Wear a GPS, we’ll check if crimes happen near you and you’ll be our first suspect’ to ‘You are only allow to be at your house, your job, and other specifically authorized locations’ to ‘You have to live in this little criminal village with cameras everywhere.’. Which we need, all of them both more humane and cheaper, and better at reducing repeat offenders. It’s hard to actually come up with an objection, and yet people insanely fixate on private.

        Of course, there actually is one downside. Victimless crimes are extremely hard to stop this way, so we’d end up looking insane when we take a car thief and send them out the door with just a GPS monitor (Because people complain when cars get stolen, so we can check if they did it.), but need to lock up a drug dealer in a criminal village with monitoring. (Because people do not complain when they buy drugs.)

        Of course, we already do sorta look insane for those relative punishments, so, eh, whatever.

        1) And if they do keep committing crimes, I have to suggest we should either treat this as an actual need. I.e, if they’re stealing to buy heroin, just give them some damn heroin. It’s cheaper and better for society to not have them running around committing crimes to get it. Or their criminal tendencies are some sort of psychological problem and give them help. I.e, if people keep assaulting others for no obvious reason, they’re not going to learn otherwise by locking them up. We need to lock them up for safety, sure, but we should actually try to fix them.

        But I know some people will disagree with that, and that’s rather separate from this monitoring thing. If we leave criminals in society and just make sure they don’t commit any more crimes, almost all criminals will…stop committing crimes. And the problems of the rest, the ones who keep doing so despite the fact we’re actively watching them and they know they’ll be caught…those problems will becomes rather obvious over time.

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  6. Do you know if there is any difference in plea rates in states with three-strike rules vs. those without?

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    • As I understand it, plea bargaining makes up so large a majority of all criminal pleas that it may be hard to distinguish the effects of this one policy. We’re talking well north of 90% of all cases here.

      Unfortunately, I’m having a hard time finding state-by-state breakdowns, which are what we would need to answer your question. I would very much like to see them myself, although admittedly I am no fan of three strikes in any case.

      This link may be helpful… but I unfortunately have an editing deadline this afternoon and won’t be able to contribute much more to the discussion:

      http://www.hrw.org/news/2013/12/04/plea-bargains-unfair-difference-between-10-years-and-life

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      • After my response to Kazzy downthread, I realize that it’s even more complicated; some of the driver for 90% plea bargaining is likely to bargain out of a felony for some lesser crime or for the felony charges dropped after good behavior for some defined time period or other action such as enlisting in the military, which was a from of back-door-draft during the mid 2000’s.

        I actually support pleas that include dropping charges for good behavior or restitutive behavior.

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      • the whole “enlist in the military or go to jail” is (mostly) an urban myth. That is to say, you can find a couple of anecdotal stories, but those stories are basically the entirety of the phenomenon.

        (what did happen in the mid-00’s was that the recruiting picture was so dire, previously disqualifying criminal records were no longer disqualifying through a permissive waiver process)

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      • that was part of my reporting beat; it was a real thing and it ended because the military did not like the quality of recruits; they had far too many discipline problems; if anything, it reinforced the notion of an all-volunteer army. (My source here was the general in charge of US Army HR., so I’d give it at some heft.)

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      • @kolohe

        I always thought the military or prison thing was from the post-WWII era and went away with Vietnam and the switch to a more volunteer military. My imagination had it given to young guys in the 1950s and 60s. What is interesting is that these bad old days had much shorter criminal records?

        What is interesting is how much mass incarceration seems to be a product of cultural liberalization and things like narcotics entering mainstream knowledge and culture and usage. There were always narcotics but I wonder if there was a serious uptick in marijuana usage in the 1960s around 1965-1968.

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      • they tried that again sometime around 2004 to 2006 or so; offering enlisting as a plea-alternative to jail.

        As I said, the military did not like the quality of recruits that resulted; even in that time when they were desperate for bodies.

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      • zic, Ok, I was out of the military recruiting by then, though I’m still surprised anyone in management would cop to it, as it would have been against best practices (but not per se prohibited. And not anything someone with a goal quota to fill would have rejected at all)

        saul, the only numbers I can find (with a cursory search) on the internet go back to the 70s

        Though that does sorta support your theory, just shifted a decade later – and that’s when mass incarceration really took off, as a response to the crime spike that started in the late 70s and lasted until the early 90s.

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      • atute observation, and correct.

        The general in question had just retired. The impression I have from our very long conversation is that recruiters were trying to meet quotas, and looking at this as an opportunity — I’m of the opinion they were looking for young men who’d gotten tangled up in light drugs, alcohol, driving to fast, and unplanned assaults, etc; young men brawling it out; they tried it, and the judges liked it, got otherwise difficult young men out of their jurisdictions, but the brass did not like it; there were an abnormally high amount of discipline issues.

        In a parallel universe, one where I’m still reporting, I would be investigating this for correlation with non-brain trauma instances of PTSD and other mental health issues post service.

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      • Oh, I’m pretty certain that the uptick in veteran related problems (especially higher mental illness and unemployment rates) is due to the attributes of the recruiting pool of the mid aughts – just because incidence of those issues are always cross-correlated with socioeconomic status.

        The easy example is the person of limited means without access to proper health care who self-medicates mental illness with alcohol, then of course has all sorts of issues on top of the issues they already have. Not to say that this can’t happen to well-off people too (because I’ve seen it happen) but a person without even the support network to recognize there may be a root problem, much less access to a formal mental health screening, will just be seen as a drunk – and quite often, eventually, a homeless drunk.

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      • Off topic, but on the National Guard, and how it was abused, that’s a state’s rights issue, or so it seems to me, and one which I wish we took more seriously, it would have slowed the rush to war.

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      • Though I understood the conventional wisdom was that the post-Vietnam splitting of duties between Active/Reserve/Guard forces was a method of getting that very ‘buy-in’ and commitment for armed conflict.

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  7. Thank you for posting this.

    An added layer of the problem is that it becomes a vicious circle: when someone is convicted of a crime, not only do they become a criminal in the eyes of the state for the duration of their sentence, but essentially for the rest of their lives. If you’ve been convicted — regardless of innocents or guilt — then the next time a crime occurs in your vicinity, you will be one of the first people the police look at simply because you were convicted before, making it all the more likely that you will end up having to face the choice of a plea or potentially going to prison for decades yet again.

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  8. Lenny Bruce used to have a joke about how the only justice done in the Halls of Justice was done in the halls.

    This is a great essay and you are right that the system is built on plea deals and this causes innocent people to plead guilty and this is a rational decision. The complication from my criminal defense friends that they will concede in private that the overwhelming majority of their clients are guilty so pleaing is the best they can do from time to time.

    When I was reading Methland, one of the chapters showed the Prosecutor, Defense Attorney, and Judge deciding on a sentence for a meth dealer in chambers. This was in rural Iowa.

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    • Yep. My best friend from high school is currently a contrast P.D. and he will cheerfully stipulate that the overwhelming majority of his clients are guilty as sin. But he sees his job as primarily being about protecting their civil rights.

      There is substantial value to society in terms of keeping the system honest by making the prosecutor actually prove the allegations. I’m unsure how plea bargaining serves that purpose.

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  9. If we thought of plea bargains as the state saying, “We are going to punish you more if you exercise your Constitutionally guaranteed rights,” instead of, “We’ll go easy on you if you cooperate,” would the public perception of them be any different?

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      • But even you must admit that there is something unseemly about the government — who maintains a monopoly on the use of force — using the threat of that force to compel (or encourage, if you prefer) people to abandon their rights, no?

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      • But a plea bargain need not be that. If the charge levied against the defendant is appropriate to the crime and not a deliberate overcharge to place unfair leverage in the prosecutor’s hands, then a plea bargain is fair and just.

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      • I’m with Kazzy on this – how can you know if a plea bargain is fair and just if you haven’t established the guilt or innocence of the defendant?

        If the plea bargain drops the expected sentence to 1/5, a rational and perfectly innocent defendant will look at whether they’re over or under 80% certain of acquittal. And if the prosecutor isn’t bluffing about their willingness to take the case to trial, presumably the likelihood of conviction is well over 20%.

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      • I’m not arguing for the justice of any particular plea bargain, so I don’t need to know whether any particular defendant is guilty or innocent. Presumably, in any given situation the defendant knows himself whether he’s guilty or not. Maybe no one else does. But the fact of guilt or innocence, while a determinate and determinable fact, is also irrelevant to the plea bargain calculus. What’s important is that the fact of guilt or innocence is determinate to the defense but indeterminate to the prosecution, but whether the jury will return a verdict of guilty or not guilty is indeterminate to both sides.

        Maybe it’s because I am a lawyer that I simply can’t see what’s wrong with applying a rational calculus to that kind of phenomenological structure. I’m comfortable with the inclusion of indeterminacy when making bargains; that’s inherently what I do for ten hours a day, five to six days a week. When I prepare for a mediation or a mandatory settlement conference, I arm myself with the available evidence, my assessment of the jury appeal of the respective parties, a survey of results of actual jury verdicts in similar cases, and an assessment of the personalities and capabilities of the opposing attorney. That allows me to advise my client about what the likely outcomes of taking the case to trial are, to square those with the objectives of our side for the litigation, and the things that the other side would likely be willing to settle for. I never know exactly what the other side would have settled for. I never know exactly what a jury would have done with the case. But I can determine whether the settlement we reached is fair in light of all the information that’s available to me.

        Applying this to the criminal law world, it’s not difficult at all to see an analogy. We have P, Q, and R pieces of principal evidence, a defendant with “X” level of jury appeal (and an arresting officer with “Y” level of jury appeal and a victim with “Z” level of jury appeal) and here’s how juries have handled similar charges, or similar participants, in the recent past and the resulting sentences from the guilty verdicts. Insert other factors that may be relevant too, as you please.

        What I can see wrong with the way things are is that most people who get put in the system wind up without enough resources, either on their own or afforded to them by the public, for that calculus to be engaged in after any substantial investigation or with any substantial amount of time to approach it in a thoughtful manner. I’m generally pleased with the justice of most of my civil settlements because I have an adequate amount of information with which to evaluate them. But there is a scarcity of resources — money, labor, time, and intellect — that a criminal defendant must labor under when approaching the bargaining table with the prosecution.

        Which is why I think that expansion of the resource pool is the best immediately available solution, not elimination of plea bargains.

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      • Wow, that wound up being really long. TL/DR:

        If you’re innocent, you can take a plea or take your chances.

        If you take your chances and are then convicted despite your innocence, the resulting injustice was not caused by that facet of the system which allows plea bargaining.

        Rather, the injustice was caused by that facet of the system which allows innocent people to be convicted.

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      • If you take your chances and are then convicted despite your innocence, the resulting injustice was not caused by that facet of the system which allows plea bargaining.

        Rather, the injustice was caused by that facet of the system which allows innocent people to be convicted.

        That, that right there.

        To what extent is the facet of the system which allows innocent people to be convicted, potentiated and even allowed to survive, precisely by the facet of the system which allows plea bargaining?

        If only 2% of federal cases go to trial, then the prosecution gets to threaten to bring to bear something around 50 times the average prosecutorial resources usually required to get a conviction, should you insist on your constitutional right to a trial. But you only have 1 times your own funds for defence, no matter what.

        You can beat the rap, or you can beat the ride, but you can’t beat both – if the state had to spread the ride evenly, instead of dumping all of it on the 2% uppity enough to insist on their innocence, that wouldn’t be the case.

        (ow, that metaphor hurt. It was going to be even worse – I had something about focusing the ride like a laser)

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      • Civil cases don’t seem to have it quite as bad – sure, there are extreme inequities (if I wanted to sue Apple Computers, or they me, Apple would get what they wanted and I would go broke). But no single litigant has a resource pool of fully half the legal resources in the entire civil justice system, which they can threaten to slide around to the disadvantage of a one or two opponents – thereby gaining favourable settlements with which to further fill their war chest.

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      • The fact that “jury appeal” appeared so many times in your calculus appalls me.

        I recognize you are just stating the facts as they are — my issue is not with you — but I think it demonstrates the difficulty some of us have in applying cold calculus to such matters.

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      • The key lies in the cost-benefit calculus, as explained in the second to last paragraph: If making sentences longer results in more guilty pleas, then something is wrong, because the length of the sentence has nothing to do with the guilt or innocence of the defendant.

        And yet – a rational defendant should plead guilty more often, when the sentence is longer, and when he is presented with a plea bargain.

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      • A plea bargain may be fair for all the individual actors, but still result in an overall reduction in social welfare through the erosion of constitutional rights (Kazzy above)

        In Canada, all plea bargains must be reviewed by a judge. Still not perfect -but our incarceration rate is lower than was Stalist Russia’s.

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    • for a lot of pleas, there is some element of ‘guilt’ at the bottom.

      My kid got arrested for criminal speeding — 30 mph over the posted. This is in a neighborhood where everyone drives 45 or 50 — rural road, not much traffic, and not densely populated. If you actually drive 20 — the posted speed limit — you’ll have a long line of pissed-off drivers behind you. (I know this from multiple personal experiences; after he got busted, I did this on purpose for a number of years.)

      Criminal speeding is a felony; but at most, will likely get you a week in jail. It’s not the jail that hurts, it’s the felony that follows you onto every college, rent, loan, and job application. You find yourself here, and you plead to avoid the felony. In my kids case, it was six months with no legal problems at all plus a big, fat fine to the county and nearly two thousand in attorney’s fees.

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      • did this result strike you as unjust?

        If if not, then if we eliminate the element that “a lot of other people do the same thing and aren’t punished,” then would it be just?

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      • I’m always struck when moving violations are plead down to parking tickets. It is one thing to charge someone with a lesser form of the same act (e.g., reckless driving instead of speeding or whatever); but to charge them with a crime they are wholly innocent of — which everyone in the room knows they are innocent of — how is that not perjury? If I plead guilty for a parking ticket despite having not parked illegally and the judge, who knows I didn’t park legally, accepts that plea… how have we not broken our various oaths?

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      • It strikes me as a problem of county government trying to fund itself off ‘fees and fines,’ mostly; a result of what happens when we don’t want to adequately fund government or fund the wrong things (homeland security beefed-up enforcement agencies). I find it discriminatory because it singles out those who can least afford an attorney and fines for harsher treatment (the felony).

        And much of this will never have actual jail time as a punishment; then the state might have to pay for a public defender.

        But I’ve spent a lot of time in traffic court, watching folks who didn’t have $50 to fix a headlight fined $350 because the headlight was burnt out. We use our justice system to prey upon the poor, imo, not to actually seek justice.

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      • Yeah, I remember pleading down from a speeding ticket to a broken headlight (no cash reductions, just way fewer points on my license). I had some major concerns for the same reasons you mention, and actually I still feel icky about it, years later.

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      • If a lot of other people weren’t doing it without punishment, then the act of driving over the speed limit would be a whole different thing: actual speeding – driving at a speed fast enough that you’re endangering those around you by the extreme discrepancy between your speed and theirs.

        It doesn’t just change the case in terms of equality of treatment, it changes it in terms of the reality of the acts.

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      • you say that as if the primary factor in safety is the delta between the average velocity of vehicles in a given stretch of road, and the velocity of the individual driver.

        The primary safety factor is the delta between the velocity of the individual driver, and the stretch of road upon which he is driving.

        I don’t know why this is such a difficult concept, one that people resist so intensely. I’m not a scientist but I know what F=ma means. To those who say “Speed doesn’t kill,” I say, “But sudden deceleration does.”

        Safety tends to happen at lower speeds. Which is why I, for one, am unimpressed with the excuse “But everyone else was speeding, too.”

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      • If drivers were mostly colliding with the road surface, I would agree 100%. But since cars are generally not driven for long stretches perpendicular to the road, people seldom rear-end, or get rear-ended by, the road they are driving on. That takes other drivers going at significantly different speeds to achieve.

        Yes, that was tongue in cheek, but both things are still relevant.

        I say this as someone who doesn’t drive, but cycles everywhere – I do feel many motorists drive faster than is safe for the conditions, and I sure would be happy if motorists would slow down a lot in when we can’t give each other lots of room.

        But if I could pull 70 mph on my bike, it wouldn’t be nearly as much of an issue when I have to take highways, because then I wouldn’t be getting passed multiple times a minute by cars doing 50 mph relative to me.

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      • I can see where your experiences would mold your perspective!

        The nasty collisions are fast cars hitting heavy stationary objects affixed to the ground. Trees, walls, ditches, things like that. The delta on the velocity part of the equation gets real high.

        In the case of an auto versus bicycle collision, the disparity in mass is also very much the bicyclist’s enemy. Stay safe out there!

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      • , as the resident expert on driving, I have to agree with here. The relevant parameter is relative velocity and you’re correct that hitting a stationary object faster hurts more. But they are also easier to avoid hitting. The most dangerous thing you do on a highway is pass another vehicle, particularly on a two-lane highway, but also on a freeway.

        There are stretches of road, Utah and Texas come to mind, where the speed limit is now 80 mph. My truck is governed at 62. That means I get to spend hours some days with other vehicles streaming past me at 20+ mph. If nothing else it’s very stressful.

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  10. Excellent piece, Jason. And the one of the main obstacles to fixing the system is, quite literally, the prisoner’s dilemma.

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      • Heh. I suspect there are things that the judges could do about that. What would REALLY gum up the works would be if in addition to everyone demanding a jury, they all also refused to waive their rights to a speedy trial.

        This would also impact the non-criminal justice system to the point that it would effectively cease to exist. No one could get divorced or bring a small claims suit, for instance: every available prosecutorial and court resource would have to be devoted to criminal cases.

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  11. In this they are much like the victims of torture, from whom the truth can’t be reliably expected.

    I’ll only disagree with you to say this:

    They aren’t LIKE the victims of torture, they ARE the victims of torture.

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  12. The civil justice system is rather more complicated than you think. First, it contains everything under the sun.

    Individuals with good cases can find plaintiff’s lawyers willing to take a case on contingency. Plaintiff’s firms often join together on complex and expensive cases and this allows people to go after big companies from Apple to Genetech to Enron.

    Even big companies have reasons to settle, it can be much cheaper than a Jury verdict. The tech giants paid 300 million to settle their poaching cases. A jury verdict could have been much, much higher.

    The disadvantages come when you have small cases of individuals suing individuals like in landlord tenant cases. Here people need to take time off work and are not able to afford counsel usually because of money issues. There are not always enough non-profit resources to help indignant defendants. Credit collection also hurts people here.

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  13. Former prisoners are denied voting rights. They face reduced employment opportunities, facilitated by the maintenance of criminal records. They are deliberately isolated from family and community in the social services and family court systems. Prison and its consequences are becoming a caste system.

    Given that a disproportionate number of those prisoners are black isn’t this just reinstating segregation under a new guise?

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