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Prisons Are Packed Because Prosecutors Are Coercing Plea Deals. And, Yes, It's Totally Legal.

08 Aug 2019

Clark Neily

America is the most prosperous country in the history of the
world. We excel at innovation and mass production — and
nowhere is that more true today than our criminal justice system,
which features a streamlined process for transforming millions of
suspects into convicted criminals quickly, efficiently and without
the hassle of a constitutionally prescribed jury trial.

It’s called coercive plea bargaining, and it’s the secret sauce
that helps us maintain the world’s highest incarceration rate.

According to a
recent study
from the Pew Research Center, of the roughly
80,000 federal prosecutions initiated in 2018, just two percent
went to trial. More than
97 percent
of federal criminal convictions are obtained through
plea bargains, and the states are not far behind at
94 percent
. Why are people so eager to confess their guilt
instead of challenging the government to prove their guilt beyond a
reasonable doubt to the satisfaction of a unanimous jury?

American prosecutors are
equipped with a fearsome array of tools they can and do use to
discourage people from exercising their right to a jury

The answer is simple and stark: They’re being coerced.

Though physical torture remains off limits, American prosecutors
are equipped with a fearsome array of tools they can use to extract
confessions and discourage people from exercising their right to a
jury trial. These tools include charge-stacking (charging more or
more serious crimes than the conduct really merits),
legislatively-ordered mandatory-minimum sentences, pretrial
detention with unaffordable bail, threats to investigate and indict
friends or family members, and the so-called trial penalty —
what the National Association of Criminal Defense Lawyers calls the “substantial difference between the
sentence offered prior to trial versus the sentence a defendant
receives after a trial.

Of coercive plea bargaining’s many problems, two are
particularly concerning.

The first is false convictions. Though it was once believed that
a confession in open court — a guilty plea — was
proof-positive of a person’s guilt, we now know that simply
isn’t true. Indeed, of the more than 300 people definitively
exonerated by the Innocence Project using DNA evidence, some

11 percent
pleaded guilty to crimes they did not commit since
1989. The National Registry of Exonerations puts the total number at 20 percent since 1989.
But whatever the precise figure, it is clear that innocent people
are routinely coerced into pleading guilty to crimes they did not

Despite this mounting evidence, however, the U.S. Supreme Court
has steadfastly refused to police the line between permissible
inducements and unconstitutional coercion. For example, in a
notorious 1978 case called
Bordenkircher v. Hayes
, the defendant was accused of forging an
$88 check and told that, if he refused to take a five-year plea
offer, the prosecutor would re-indict him as a habitual offender
— which would increase his maximum sentence from 10 years to
mandatory life in prison. On appeal, the Supreme Court found
nothing problematic about using the threat of a life sentence to
try convince a defendant to accept a five-year plea, and allowed
the life sentence to stand, since Bordenkircher had refused the

The other big problem with coercive plea bargaining is that it
helps cover up an untold amount of prosecutorial misconduct. Even
in the federal system, where prosecutors are held to a relatively
higher standard, there has been a surprising amount of misconduct
in the handful of cases that end up going to trial.

The most notorious example is the failed 2008 prosecution of
then-Sen. Ted Stevens, R-Alaska, who, after refusing a one-count guilty plea to one felony
charge with no jail time
, was indicted on seven counts of failing to report
gifts on his financial disclosure forms after allegedly paying an
insufficient amount for the renovation of his house in Alaska.

After the jury voted to convict but before Stevens was
sentenced, the star witness against him recanted part of his testimony in a letterand
an FBI whistleblower disclosed a pattern of deliberate, systematic
cheating by prosecutors that has since been documented in a
500-page document called the
Schuelke Report
. The Justice Department then asked the judge to
dismiss the indictment. Had Stevens taken the plea, none of the
prosecutorial misconduct or exculpatory evidence in his case might
ever have been revealed.

But that is hardly the only example.

In 2017, what should have been slam-dunk case against Nevada
rancher Cliven Bundy for inciting violence against federal
officials unraveled when a judge determined that prosecutors showed “a reckless
disregard for the constitutional obligation to seek and provide
evidence,” by withholding documents and misstating facts about the
case. And in 2018, a jury acquitted Noor Salman, the wife of the
Orlando nightclub shooter Omar Mateen, after defense attorneys
showed that her confession to FBI agents that she had helped
“case” the club was contradicted by her cell
phone’s geolocation data
— evidence prosecutors
should have shared but did not, earning a
pointed rebuke
from the trial judge.

Defenders of the status quo claim that examples like these are
unusual and that prosecutors rarely commit misconduct. But how can
we possibly know that? When only two percent of federal
prosecutions go to trial, it is impossible to say how many would
blow up as spectacularly as the Stevens or Bundy cases if every one
of them went to trial against zealous and adequately-resourced
defense counsel.

The framers of the U.S. Constitution put citizen participation
at the very heart of our criminal justice system in the form of
jury trials. With coercive plea bargaining, prosecutors have ripped
that heart right out of that system and made sure that ordinary
citizens have almost nothing to do with the administration of
criminal justice in America.

Our system wasn’t designed to function that way, and growing
public disillusionment suggests that it won’t — not for much
longer, anyway.

Clark Neily is
vice president for criminal justice at that Cato Institute and an
adjunct professor at Antonin Scalia Law School at George Mason

Click here to view the full article which appeared in CATO Journal