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The Plea Bargain Problem

Posted by Seth Chazin | Aug 16, 2018 | 0 Comments

In 1996, Rodney Roberts got into an altercation with a friend. After a few days in custody, Roberts discovered he was being charged with kidnapping and rape. Advised to plea guilty, Roberts spent 18 years in prison before DNA evidence proved his innocence. Why would Roberts, only culpable of a small dispute, plead guilty to two felonies? On the surface, his decision seems completely illogical, but a vast body of evidence demonstrates that our criminal justice system works in ways that favor plea bargains over trials. A plea bargain is an agreement in a criminal case in which the defendant pleads guilty to a specific charge in return for some concessions from the prosecutor.” The Innocence Project reports that 95 percent of defendants take plea offers, and yet only 15 percent of people who have been exonerated for crimes for which they didn't commit entered guilty pleas.

Pleading guilty may appear to be the defendant's decision; however, the court system places those wrongfully charged in an impossible position. Offered the option of a guaranteed sentence versus a potentially much longer one, fearful defendants, up against a discriminatory system which includes tainted juries, a prosecutor incentivized to convict, and an overloaded lawyer, would logically choose the former. By avoiding going to trial, defendants not only eliminate the risk of waiting months if not years for a trial date, but also the possibility that they could receive a more severe sentence if convicted after exercising their constitutional right to a jury trial, and this could even include imposition of the death penalty. Making matters worse, defendants are given only a short amount of time, often a few days or maybe a week at best, before their plea offer expires. Statistically, the majority of criminal defendants are low-income and people of color - this demographic is also the least likely to win cases at trial or have the finances to post bail. Retired federal judge, Judge H. Lee Sarokin, calls this paradox the “‘Ins of Court' — intimidation by the prosecution and incompetence by the defense.” In other words, the term plea bargain is a misnomer—it's not necessarily a bargain at all and could in fact amount to an injustice.

Thomas Jefferson once said: “I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Plea bargains potentially run counter to the Fifth and Sixth Amendment, which grants criminal defendants the right to a fair, public and speedy trial. By pleading guilty one may have the benefit of serving a definitive amount of time; however, the crime they did not commit remains on their record, making it nearly impossible to secure employment, loans or a home. Furthermore, “this fear of trial saves the prosecution from having their evidence tested for both accuracy and sufficiency.  It makes them lazy, invites corruption, and coerces defendants who stand a chance of being acquitted to back off.  It also creates injustices.”

With the sharp decrease in defendants going to trial, as well as the emergence of DNA evidence that can exonerate the innocent—today, only three percent go to trial, compared to the 20 percent who did 30 years ago—there has been momentum for creating awareness around this problem. Organizations such as the Innocence Project have launched public awareness campaigns that expose the stories of the exonerated.  They have even created the hashtag: #GuiltyPleaProblem.

However, plea bargains are sadly also a necessity. Without plea bargains the criminal justice system would be stalled, with defendants facing trials years after charges were initially filed.

So, is there a solution to this contradictory system? Many feel discouraged by the undertaking, but it is important to begin with encouraging prosecutors to stop quantifying success according to the number of convictions they obtain and with empowering defendants to exercise their constitutional right to a fair jury trial without fear of retribution from the court in the form of a harsher punishment following conviction for simply having gone to trial or from the prosecutor in the form of adding charges or enhancements for having exercised that same right.

“Innocent until proven guilty” is the adage with which we are most familiar.  However, the problem with less and less jury trials and our criminal justice system as a whole has resulted in a new adage: “innocent until pleading guilty even if innocent.”  We need to get the courts, the prosecutors and even some defense attorneys to commit to changing this tainted system.

About the Author

Seth Chazin

Seth P. Chazin has aggressively defended clients in thousands of felony and misdemeanor cases for over 30 years. He has extensive experience representing criminal defendants in federal and state court, while handling both state and federal appeals as well.


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“The death penalty is a lie, a misguided mistake born of anger and frustration. Capital punishment has become a perverse monument to inequality, to how some lives matter and others do not. It is a violent example of how we protect and value the rich and abandon and devalue the poor. The death penalty is a grim, disturbing shadow formed by the legacy of racial apartheid and bias against the poor that condemns the disfavored among us, but corrupts us all. It’s the perverse symbol elected officials use to strengthen their ‘tough on crime’ reputations and distract us from confronting the causes of violence. It is finally the enemy of grace, redemption and all of us who recognize that each person is more than their worse act.”
- Bryan Stevenson