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Widespread Use of Plea Bargains Plays Major Role in Mass Incarceration

Plea bargaining has become historically ubiquitous as the principal, if not primary, method of criminal case disposition in the US.

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.”

In reality, the current criminal justice system has little to do with public safety, truth-telling or avoiding falsehoods. Many of those currently incarcerated and languishing in for-profit or government prisons include nonviolent drug offenders and those accused of parole-violation technicalities, such as not having a job or missing a parole officer appointment. In reality, Americans are locked up for crimes, such as writing bad checks or using drugs, that would rarely, if ever, produce prison sentences in other countries. The United States incarcerates 2.3 million criminals. The number of people on lockdown in America is more than that in any other nation.

The modern criminal justice system primarily serves the interests of the increasingly privatized and financialized prison-industrial complex, which includes, among others, “tough on crime” politicians, seedy bail bondsmen, Wall Street-traded for-profit prison corporations, the drug-testing industry, police and corrections officers, and parole and prison officers’ unions.

It is well known, or should be, that California’s “three strikes and you’re out” provision was promoted by corrections officers because caging humans is not only good for business, it is the fiduciary responsibility of the for-profit prison-industrial complex corporations. It is no surprise, either, that the primary defenders of the criminalization of marijuana are police and corrections officers’ unions because this is the bread and butter of their professions.

Prison Spending Fuels Cuts in Higher Education

It is unfortunate that the money spent to imprison millions of Americans is, much like the military-industrial complex, draining resources from more pressing social and economic needs, such as education.

A stunning and detailed report with illustrative and compelling graphs from the California Common Sense web site has recorded just how skyrocketing expenditures on incarceration in California have been associated with the decline in spending on higher education. The report is not only thoroughly documented and visual, but also compares and contrasts a myriad of issues that now plague higher education and documents how they correlate to prison expenditures.

In 2012, corrections spending and student debt nationwide reached $1 trillion each. Recently, The Huffington Post noted that: “Pennsylvania is home to the country’s most expensive public university. In-state tuition at Penn State University runs higher than $15,000, but the state has been cutting spending on higher education since 2007. The result is Pennsylvania now spends twice as much on corrections as it does on higher education.”

One can look around the nation to see the burgeoning costs of incarceration and the corollary with cuts in higher education. In Massachusetts, a state known for its old-moneyed prestigious private universities, state legislators took an axe to cut appropriations to higher education between 2008 and 2012, hacking off a whopping 37 percent, according to the Boston Globe. This meant that the state spent dollar for dollar on higher education and mass incarceration in 2007.

The National Association for the Advancement of Colored People (NAACP) released a report in April of 2011 entitled “Misplaced Priorities.” In it, the NAACP examines America’s escalating levels of prison spending and its impact on state budgets and our nation’s children. The report concludes that in all 50 states, the need is to downsize prison populations and shift the savings to education budgets.

What Would Happen if Defendants Crashed the Court System by Refusing to “Plea Out”?

As long as plea bargains are used as a club to coerce defendants into abdicating their right of the constitutional guarantee to a fair trial, the prison-industrial complex will continue to grow exponentially. Plea bargains are one big woodpile that serves to fuel the ever-expanding prison-industrial complex, rendering transparent the American political resolve to incarcerate more and more people even if it means bankrupting their municipalities, cutting education and devoting their budgets to subsidizing the for-profit prison industry. If this resolve represents the mens rea (criminal intent) of the political will for mass incarceration, then plea bargaining can be said to represent the actus reus, the physical act of carrying out the industrial carceral state.

If plea bargains were eliminated, or even severely monitored and reduced, the states and the federal government would then be required to carry out their burden under the constitution of proving the guilt of a criminal defendant in accordance with the law. If this happened, there would be a whopping reduction in prosecutions, not to mention incarcerations. Such a shift would be an important step in ending the current carceral culture of mass confinement and cruelty.

Michelle Alexander, a civil rights lawyer and bestselling author of the book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, recently wrote in The New York Times that in her phone call with Susan Burton, a formerly incarcerated woman who took a plea bargain for drug use, Burton asked:

What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn’t we bring the whole system to a halt just like that? Believe me, I know. I’m asking what we can do. Can we crash the system just by exercising our rights?

Burton has the right to ask this question. It took her 15 years after pleading to a drug charge to get her life back together. The organization she recently started, A New Way of Life, offers a much-needed lifeline to women released from prison. But it does much more than this: it is also helping to start a movement against plea bargaining and the restoration of the constitution as it applies to citizens. All of Us or None is another such group that is organizing formerly incarcerated people and encouraging them to demand restoration of their basic civil and human rights.

But the question Burton asks remains: could criminal defendants really crash the system if they demanded their constitutional rights and refused to plea to crimes they did not commit?

From the point of view of American University law professor Angela J. Davis, the answer is yes. The system of mass industrial incarceration is entirely dependent on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised their constitutional rights, then there would not be enough judges, lawyers or prison cells to deal with the flood tide of litigation. As Davis notes, not everyone would have to join for the revolt to have an impact: “if the number of people exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos.”

The entire carceral system is riddled with corruption and broken beyond comprehension. Davis and Burton might be right: crashing the judicial system by refusing to get roughhoused into phony plea bargain deals could be the most responsible route to cleaning up the courts and restoring constitutional rights. It is daunting, and it takes guts, but with more than 90 percent incarcerated for plea bargains, it is courage we need.

One thing we do know: there are many people falsely accused of crimes doing time in for-profit American gulags, and many more waiting to replace them. This situation might be good for the for-profit prison system and a few major stockholders but it spells Dante’s Inferno for those forced to take the plea, as Alford, Banks, Burton and far too many others know.

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