America's Plea Bargain Epidemic

The plea bargain epidemic in America has resulted in enormous upsurge in prosecutorial powers, has taken away much discretion from judges, and has rendered defense lawyers virtually helpless (and in many instances, feckless).

The founding fathers of America’s Constitution had a plan in mind.

They wanted to craft a legal system that would spare future generations from the tyranny that colonialists experienced under British rule.  They wanted a system of checks and balances; a system of fairness; a system where the accused may confront their accuser in a court of law with a fair arbiter of the court; a system where Americans wouldn’t be detained indefinitely.  Lastly, the framers of our Constitution wanted to ensure that no one entity or agency has too broad of an authoritarian power.

Today, in the year 2015, the founding fathers of America must be rolling in their graves.

Growing Prosecutorial Powers

In the post World War II era, and in particular, since the launch of the Tough on Crime campaign in 1980, prosecutors have seen their powers grow to a point where they are de facto monarchs of the courtroom.  As we at the NCDP have preached, prosecutors dictate the charge, and often dictate if bail will be administered and if so, for what amount.  Prosecutors have unfettered latitude over whether or not the accused will be convicted, and when convicted, how much time the defendant will serve.

In short, many plea bargains in America, today, are coerced plea bargains.  prosecutors have now become judge, jury, and executioner.  Judges can exercise little discretion these days, and if they dare use powers granted by the Constitution to exert their authority to provide (perceived) leniency for a defendant, the judge will be pilloried in the court of public opinion — which, in cases of state judges, means facing an outraged voting populace.

The Pervasiveness of Plea Bargains

The 6th Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”

Additionally, the Constitution mandates that at the trial, the accused will have the assistance of defense counsel who has the right to confront and cross-examine his accusers and present evidence on the accused’s behalf.  The accused may only be convicted if an impartial jury of his peers is unanimously of the opinion that he is guilty beyond a reasonable doubt of the charges filed by the state, and states as much — publicly — in its verdict.

The drama ingrained in these guarantees is routinely portrayed in movies and television programs as a fierce, open battle played out in public before a jury presided over by an unbiased judge.  But this is all fantasy.  In practical reality, our criminal justice system is almost exclusively a system of plea bargaining, negotiated in secret behind closed doors and with no judicial oversight.  The outcome is almost exclusively determined by the prosecutor alone.

The Lead-Up to Plea Bargains

But it wasn’t always this way and isn’t in many countries.  Prior to the civil war, plea bargains were essentially non-existent.  Since the converging of cultures and a subsequent spike in violence, courts became burdened with too many criminal cases.  The plea bargain was an easy way to resolve the matter while saving valuable time and resources.  Nevertheless, few cases were resolved by the usage of a plea bargain.

Then Richard Nixon happened.

Richard Nixon launched the war on drugs, and badly wanted to pass Tough on Crime laws.  But Nixon ran his campaign on the Federalist platform, and had a duty to honor states’ rights.  It wasn’t until 1980 that “Tough on Crime” was first mentioned in the State of the Union address by new President Ronald Reagan.  Once politicians of all parties learned that this was a winning ticket, the plea bargain became a staple of the American criminal justice system.

Congress Becomes Involved

On October 12, 1984, Ronald Reagan would sign the bipartisan-supported Comprehensive Crime Control Act of 1984 into law.  The bill was sponsored by senator Strom Thurmond of South Carolina in 1983.  There were many things included in this bill that would have long-term consequences still in place today, including:

• The Sentencing Reform Act

The Sentencing Reform Act would be included in this bill.  The Sentencing Reform Act called for the creation of the U.S. Sentencing Commission, and is regarded as the birth of the modern day sentencing guidelines, which restricts the discretion of judges, and hands even more power to the prosecutor’s office.

• The U.S. Sentencing Commission

The U.S. Sentencing Commission held its first meeting on October 29, 1985. Its seven voting members, at least three of whom must be federal judges, serve six-year terms.  This commission is responsible for all federal sentencing guidelines, and “tougher on crime” amendments to existing laws.

• The Bail Reform Act

The Bail Reform Act of 1984 would also be included in the bill, which rendered obsolete the Bail Reform Act of 1966 — as well as our 8th Amendment guarantee to a reasonable and affordable bail.

The Bail Reform Act of 1984 gave prosecutors wide latitude to detain defendants indefinitely without bail — precisely what the framers of our Bill of Rights did not want.  A prosecutor could simply make the claim to a judge that the defendant was a flight risk, or the defendant was a danger to society.

This is hypocritical in nature, as it can be argued that anybody charged with a crime can be perceived as a potential danger to society.  So, in effect, more powers, and broader powers were shifted to the prosecutor, where they could remand basically anybody they wanted to charge to the county jail, indefinitely.  This practice continues today.

The Birth of the Plea Bargain Epidemic

The sentencing guidelines set forth in the CCCA of 1984 paved the way for prosecutors to charge defendants with crimes that involved mandatory minimum sentences, or had severe sentencing guidelines.  Until this period, many defendants were still going to trial, costing the government time and money.  With the Tough on Crime campaign in full force by this time, however, there was no turning back.  Prosecutors needed to continue to charge people with crimes, and when they do, the charges needed to be as severe as possible.

What was the solution?  The solution became the modern-day plea bargain and along with it, an enormous increase in prosecutorial powers.

With a plea bargain, a prosecutor could charge a defendant with the most severe of crimes — even if the defendant’s alleged actions didn’t fit the definition or the nature of the crime.  The prosecutor could now effectively frighten the defendant with an extraordinary length of time in prison.  Or the defendant could acquiesce, agree to a plea bargain crafted primarily by the prosecutor and behind closed doors.  This way, the prosecutor could secure an easy conviction, remain Tough on Crime, and save the government the cost of going to trial.

But occasionally, the public — completely sold on the Tough on Crime phenomenon — would perceive a prosecutor as soft if the plea bargain seemed too lenient.  Prosecutors found a solution.  Simply ignore the burden of “likelihood of a conviction” necessary to charge, and charge the accused with the highest crime possible — even if it didn’t fit the nature of the alleged crime.
In fact, this became a federal mandate, and soon many states would adopt the same mandate.  This solved a few problems:

• Prosecutors could now secure convictions quickly and expediently, allowing for them to stuff their dockets with more and more cases, as new “tough on crime” bills were passed into law, and they were able to charge more and more people with crimes.
• Prosecutors, by overcharging, could now frighten the accused with a cruel and unusual sentence should they dare go to trial.  This gave the prosecutor the necessary capital to construct a plea bargain that the accused would accept, but a deal that would still be perceived as “tough on crime” by the voting populace.  Essentially, the defendant is coerced into agreeing to the plea bargain.
• This took much discretion away from judges; while a judge can refuse a plea deal, it’s not something that’s routine.  What is routine, however, is a judge accepting a plea bargain under the presumption that it was negotiated in good faith by both the prosecutor and defense counsel.
• This gave prosecutors enormous amounts of power, as prosecutors could now decide who to charge, what to charge them with, and what sentence to sentence them to.  Prosecutors, in all practical purposes, became (and to this day, are still) authoritarian dictators within the courtroom.

The Plea Bargain Epidemic Today

In 2013, almost 8 percent of all federal criminal charges were dismissed (either because of a mistake in fact or law or because the defendant had decided to cooperate and receive immunity).

According to a study by the National Center For Due Process, of cases that were not outright dismissed, 97.2% of federal cases were resolved through a plea bargain in 2014. Similarly, 95.5% of state cases were resolved through a plea bargain.

While this saves the state valuable time, money, and resources, the expense of this plea bargain epidemic is far too overlooked by the American public.

According to the National Registry of Exonerations, of the cases they found to be bogus, roughly 10% of those cases were resolved via a plea bargain.

Simply put, this means that the accused chose to were coerced into a plea bargain for a lesser sentence, lest they put their faith into the crapshoot known as the American trial, where anything can happen.  If a defendant dares roll the dice, the defendant may be convicted — even if innocent of the charges filed by the state — and once convicted, will be sentenced to a much greater term than originally entertained by the prosecutor’s plea bargain.

The American plea bargain epidemic is actually a coerced plea bargain epidemic.  Cases like Steven Castanedo are omnipresent.

And this is precisely what prosecutors want: complete authoritarian power, with their friendly and acquiescing judges having less power, defense attorneys have minimal influence, and the accused having absolutely no say in their own outcome.