To Plead or not to Plead
By Albert B. Kelly
Writing previously in this space, I have expressed my
appreciation for the work done on bail reform in New Jersey. My support for
bail reform comes from what I have seen in terms of the impact on people’s
lives. No longer do people have to sit in jail simply because they don’t have
the money to make bail.
Bail reform is a good foundational step, but there is reform
needed in other areas. One area ripe for reform is that of plea bargains or
plea agreements. I honestly never gave plea bargains much thought until
recently when an acquaintance shared an article from the Atlantic Magazine
entitled “Innocence is Irrelevant” by Emily Yoffe.
It turns out that 94 % of state level cases and 97% of
federal cases are the subject of a plea bargain. That means that very few go to
trial- it also means there is little need to meet any burden of proof when a
simple threat will do.
Of course you might be thinking that if there’s a problem in
need of a fix, it’s for the criminal charged with a serious felony who’s been
allowed to plead to a lesser charge.
That may be a concern, but the thing I’m troubled by are the
people who end up pleading guilty to an offense they didn’t commit. You might
wonder who in their right mind would confess to something they didn’t do and
that’s certainly a fair question.
The answer is generally the poor, minorities, the desperate,
the uneducated or undereducated; those who are without options or resources to
mount a defense. It’s those facing a choice between a few years versus several decades-
it is people who know that the weight of the state is great and mostly against
them.
Reading District Judge Jed Rakoff’s “Why Innocent People
Plead Guilty”, I was surprised to learn that out of the roughly 300 individuals
who were proven innocent through the Innocence Project, 10% pled guilty and a
joint Michigan/Northwestern Law School project found that out of 1,428 bona
fide exonerations since 1989, 10% of these pled guilty as well.
Estimates indicate that between 2% and 8% of convicted
felons are actually innocent people who have pled guilty, which means that somewhere
between 40,000 and 160,000 innocent people, out of the 2.2 million inmates in the
country, thought that the only way to get on with their lives was to “take the
deal”.
When it comes to plea bargains, we’re not just talking about
felonies but also misdemeanors- which could include anything from public
drunkenness, petty theft, and loitering to DWI, minor assault, and possession
of drug paraphernalia. Punishment is less than a year in jail, but a few months
can still unravel a life.
Would your employer hold your job if you had to spend months
in jail and what happens to children of single parents? Even without serving
jail time, a misdemeanor conviction could cost someone public housing
eligibility, various forms of assistance, student loans, and a whole list of
professional licenses.
When it comes to reform, maybe the place to start is with
legal representation. On paper, everyone is entitled to the services of an
attorney, including for certain misdemeanor charges, but it often doesn’t work
out that way. States often cut funding for legal services and what service remains
is generally overwhelmed and underfunded.
If you get a public defender, it’s generally little more
than face time in a hallway, some horse trading with the prosecutor about your
future and a “take-it-or-leave-it” offer. Actual guilt or innocence can be a
bit of a nuisance, expensive, and almost beside the point- so you plead.
I think a first step to reform is ensuring proper funding
and resources so that all who are charged, whether felony or misdemeanor, can
have an adequate defense and representation. I also think that who can actually
qualify for help (i.e. eligibility) needs to be expanded as well.
It may also be worth asking what role law schools and their
students might play in filling in those gaps and holes in the system, whether serving
under a court-appointed attorney or serving in some new neutral mitigation or
arbitration role.
The fact that we have innocent people pleading guilty suggests,
at the very least, that plea bargains have become weaponized. At worst, it is a
betrayal of innocent until proven guilty, the state meeting it’s burden, being
judged by one’s peers, and basic fairness.