Wednesday, March 18, 2015

Why Innocent People Plead Guilty

We know this happens. Our clients opt for a certain sentence of probation rather than risk years in prison if convicted at trial. They take a shorter term rather than the danger of double-digit mandatory minimum sentences, or even mandatory life in prison. Or even accept life in prison rather than the threat of the death penalty. That is how the Alford  plea came to be -- pleading guilty not by admitting guilt, but by agreeing that the prosecution has evidence that would likely persuade a judge or jury of thier guilt beyond a reasonable doubt. Guilty but innocent.

They will plead guilty when they are innocent because of how the system is stacked. These are hard decisions sometimes, or not -- it can be the responsible choice for some of our clients.

Judge Jed Rakoff delivers a lecture.
Judge Rakoff
Not everyone has been willing to acknowledge this very real fact of our justice system. But Judge Jed Rakoff, federal district judge for the SDNY, calls out the idea of a trial-based justice system as a "mirage":  "In actuality, our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight. The outcome is very largely determined by the prosecutor alone. . . . The Supreme Court’s suggestion that a plea bargain is a fair and voluntary contractual arrangement between two relatively equal parties is a total myth: it is much more like a 'contract of adhesion' in which one party can effectively force its will on the other party."

Judge Rakoff's article in the New York Review of Books, Why Innocent People Plead Guilty, reviews the history of trials and pleas, the almost exclusive power of the prosecutions, and the reasons that innocent people plead guilty. He proposes some partial solutions, but none that would eliminate the increasing guilty-but-innocent convictions. In real numbers, "How prevalent is the phenomenon of innocent people pleading guilty? The few criminologists who have thus far investigated the phenomenon estimate that the overall rate for convicted felons as a whole is between 2 percent and 8 percent. The size of that range suggests the imperfection of the data; but let us suppose that it is even lower, say, no more than 1 percent. When you recall that, of the 2.2 million Americans in prison, over 2 million are there because of plea bargains, we are then talking about an estimated 20,000 persons, or more, who are in prison for crimes to which they pleaded guilty but did not in fact commit."

Former federal district judge, D.Mass, now Harvard law professor, Nancy Gertner, endorsed Judge Rakoff's position, but holds that he does not go far enough: "Indeed, there were times during my seventeen-year tenure on the federal bench in Massachusetts that inquiring of a defendant as to the voluntariness of his guilty plea felt like a Kabuki ritual. 'Has anyone coerced you to plead guilty,' I would ask, and I felt like adding, 'like thumbscrews or waterboarding? Anything less than that—a threatened tripling of your sentence should you go to trial, for example—doesn’t count.' . . . It is true too, in view of such threats of long terms in prison, that there is a strong possibility that the innocent may plead guilty. It may well be a rational calculation, given the penalty of going to trial, for there is clearly such a penalty."

While it is encouraging that the judiciary acknowledges the true nature of plea bargaining, that does little to balance the day-to-day practice. One way, though, that we may be able to bring light to the issue is with our clients' criminal history. Prior convictions may have been the product of guilty-but- innocent plea bargaining. The rape charge that carried serious prison penalties was pled down to some lesser offense and probation. These convictions will still count in criminal history, may still elevate the penalties, but they can be placed in context in sentencing argument. Challenging the nature and circumstances of a prior conviction may have a place in variance arguments, a reason that the sentencing court should lessen, or even erase, the weight of the prior conviction in evaluating our client's history and characteristics. Judge Rakoff and Judge Gertner's open acknowledgement and criticism of the practice give ground to these challenges. Arguments based on judicial criticism of the inequities in, as Judge Gertner calls it, the "cruel misnomer of plea bargaining" may be used to turn those words into action, in the form of a more reasonable sentence for our clients.

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