It came by email yesterday. And then it came again, this time personalized just in case it was ignored the first time. Human Rights Watch produced a 126 page report about plea bargaining, because it hasn’t been discussed to death enough. I tried to ignore the press release, but I knew that it wasn’t going to work. I’ve come to despise press releases.
There was no way not to get sucked into this discussion again because people who were clueless, who had never defended a person accused of a crime in federal court and never negotiated a plea (or went to trial in a criminal case) would be all over this like flies on, well, stuff flies just can’t not be on.
So I started to read the report. And it didn’t take long before it devolved from calling for the reforms of the simplistic solutions that we have long sought, to reach the part that made my head explode. I didn’t want to read it. I didn’t want to know it was there. But there it was, on page 3.
Our recommendations would not eliminate plea bargaining. Prosecutors could offer modest sentence reductions to reward defendants who choose to plead guilty. But prosecutors would no longer be able to force defendants to plead to avoid grotesquely long sentences. They would be required to charge offenses carrying sentences proportionate to the defendant’s crime and culpability, they would be limited in the extent of the discount from those sentences that could be offered in exchange for the defendant’s willingness to plead guilty, they would be prohibited from threatening superseding indictments with higher charges in order to secure a plea and, finally, they would be prohibited from filing such indictments to punish defendants who refuse to plead.
This is where good intentions take us down the road to perdition, and it seems as if every time some organization with good intentions tries to help, we end up on the same road. So the answer to the disparity between low sentences (which, I might add, really aren’t nearly as low as they often appear from the outside of a case) on plea bargains and “grotesquely long sentences” after trial is (drum roll): make the sentences available for plea bargains longer.
What is obvious to those of us who have to actually deal with the reality in the trenches is that theories cut both ways. On the one side, there is the argument that the “grotesquely long sentences” are too long, which means that the “trial tax” is too high. On the other side, by seeking to align the two sentences, the only thing you accomplish is increasing the burden on the low end to make the sentences available on a plea longer.
Does Human Rights Watch seriously seek to compel prosecutors to charge as hard and fast as possible, leaving no leeway for bit players in larger crimes to cop out with less than the rest of their natural lives on the line?
HRW seeks to temper the abuse of outrageously long sentences by imploring the Attorney General to be more “reasonable”:
Establish just sentences as a Department of Justice goal for all drug offenders regardless of whether they plead guilty or go to trial. Define just sentences as those which are proportionate to the defendant’s individual conduct and culpability and which are no longer than necessary to further the purposes of punishment in each individual case.
What HRW doesn’t get is that the United States Attorneys think that’s exactly what they’re doing now. No AUSA thinks he’s Snidely Whiplash, doing evil merely because he can. On the contrary, prosecutors believe that what they do serves the interest of society and, to the extent there is any meaning to such a vague normative concept as a “just sentence,” that’s precisely what happens now. Sorry, but if “just” is your measure, then you’re just wasting pixels.
And aside from the elimination of mandatory minimums, and possibly the gun enhancement, I don’t suspect any judge anywhere will agree that he’s not imposing sentence in accordance with 18 USC §3553(a), as the law dictates he must. Since Booker, ending the tyranny of mandatory imposition of Guidelines sentences, this has been the rule.
Many of the recommendations of the HRW report are the same old stuff that FAMM, criminal defense lawyers, the ACLU and pretty much everybody at the table at the far side of the courtroom has been arguing for. For years. Nothing to see here.
But since the discussion has raised its stupid head again, and will likely go through another round of lawprofs and talking heads and people who have never actually had to do any of the things involved in the discussion opining about what should happen with the lives of people they’ll never know, it needs to be said again.
Keep your dumbass mitts off making reasonable plea bargains less reasonable.
Yes, we hate the trial tax as much as you do. Yes, we hate the grotesquely long sentences a lot worse than you ever will, as we actually look into the faces of the children who will never see their parent again. And the mandatory minimums are a nightmare. Yes, we know all this, and we know it a whole lot better than you.
But what we also know is that trials aren’t nearly as much fun as you think they are. We know that a year or two of wiretaps really suck, especially when the judge who signed the orders gets to decide the Franks motion. We know how juries really don’t believe the presumption of innocence, no matter what they say in voir dire, and that they really do believe that the clean-cut, all-American agents really wouldn’t arrest our ratty-assed clients if they hadn’t been guilty.
Yes, it’s the outrageously long sentences that impact recommendations to take a plea, but it’s also the overwhelming amount of evidence federal agents are able to amass, the inability to obtain discovery, the lack of funds to counter the evidence even when it’s wrong and misleading, the fact that our clients aren’t schooled in the art of testimony and can’t get on the witness stand without being made a lying fool on cross-examination. What do you plan to do about these problems, HRW?
So yeah, a lot of defendants cop out, and the trial is dying. We’re no happier about it than you are. But that clients can get a sentence a third of what they would face if the full force of Congress and the Executive branch drops a ton of shit on their head may be the only saving grace for human beings who don’t deserve to spend the next few decades in prison.
Don’t take that away.
Based on the headlines, I assumed the report had unearthed something new. I read it and my immediate reaction was “where have these people been?”. If something in that report is shocking to anyone, they haven’t been in a Federal criminal court in the last, what, 20 years or so?
That’s why I cringe every time some new report comes out, rediscovering the same old tired discussions that have been had a thousands times before. But people who think the world didn’t exist until they showed up revisit everything, and the clueless kibitzers revisit every misguided, ignorant issue, and we’re back to the same old unworkable nonsense. I’m so sick of this.
so someone suggest ‘something/anything’ to help, or change the slant towards changing the status of the prosecutors unlimited authority to bring trumped up charges, increasing a sentence by exponential amounts of time, (which is rampant throughout the nation & has a way of helping the same prosecutors go on to bigger & better jobs in the system due to another notch on their bedpost because they’re tough on crime)..
While it might not be workable or feasible & you cringe at the prospect of the thought, there is the possibility that the problem can be handled.. maybe even at a state, county, or city level.. but to do or say or not even try anything & just ‘cringe at the thought’.. spineless jellyfish
If I get in trouble & this is the attitude I’m to be greeted with, I’ll just save my money go pro se & go down on my feet rather than on my knees.. because according to this, even if I’m innocent, I’m going down anyways.. so what the hell..
It’s far easier to talk tough when (1) you’re ignorant and (2) it’s not your ass on the line. Criminal defense lawyers have seen tens of thousands like you, and watched you cry when reality smacks you upside the head.
I’m no fan of guilty pleas. I’m no fan of people going to prison for the rest of their life. It’s no great honor to spend the rest of your life in prison.
I think you’ve seriously misunderstood. This isn’t “the attitude,” but the reality for defendants against whom there is overwhelming evidence and no defense. Not every defendant is innocent. Not every defendant can mount a defense, whether because he has nothing to counter the prosecution’s evidence or he lacks the capacity to testify (whether because of prior convictions or the inability to keep his cool or tell the truth on the stand).
You want to fight anyway? Great. I would love to try your case and will give you the trial of your life. I’m sure SHG would as well. But not everybody wants to take an extra 10 years for a trial that he can’t possibly win. You can give away as much of your life as you like, but you can’t give away another person’s life because you’re all macho.
Exactly.
Scott, yes but (as someone who was one of those people in one of those organizations)…
First, the more these issues get out there, the better. Yes, many people already “know” these things, but many others do not. Does that warrant a new study? Maybe not, but at least the discussion doesn’t begin and end with professionals who work in the field. This is something that concerns everyone, and everyone should have the facts. I spent a lot of time trying to make things like caseflow palatable to reporters, not because it was fun or easy, but because I thought this kind of information needed more attention. Just because bloggers and wonks and public defenders are familiar with FAMM does not mean the person on the street is.
Second, there may be a lot of everyday opining about and dealing with plea bargaining, but there is precious little in the way of statistics and studies. We dug deep for these resources, and they were very hard to come by. My theory is that the practice was both so engrained and so under-the-table that nobody really studied it. The one notable exception was Alaska, which, due to the policy switcheroo, was a good laboratory to test before and after.
But you are correct — trials are never fun. I had a great conversation with Doug Van Epps (mediator) about this once. He wrote a great piece called something like “Your Day in Court: It’s Not What You Think It Is!” His basic idea was that, while mediation does not give you “your day in court,” it DOES give you more time to tell your story, hear what the other side has to say, and avoid some bureaucracy. (Not that plea bargaining works that well…but the idea that court is not what we wish it were is true for both.)
Thanks for this rant!
The road to hell is paved with good intentions.
Let me first disabuse you of the notion that on the one side, this is about “bloggers and wonks and public defenders.” There are young lawyers, limited in experience and perspective, who write blog posts expressing superficial, often just mind-numblingly wrong, information. There are wonks who are deeply passionate about the issues but whose world is theoretical, and have never gotten their hands dirty or had to face the mass of evidence against a defendant and the dearth of money, time or competence to oppose it. There are public defenders who would love the luxury someone like me has to take their sweet time researching, writing, investigating, meeting, moving to fight a case, and still find myself running head first into a brick wall.
My problem isn’t “yet another report” by “yet another do-gooder organization” per se. My problem is that the reports are the product of an excess of good intention and a terrible grasp of reality. Some of us actually do the stuff that other people talk about. Some of us live with the products of what other people theorize should be good ideas. And yet, these do-gooder reports never seem to learn from us.
This isn’t some great Utopian exercise for the perfect world. This is a nasty, ugly, brutal system that does grave harm, one human being at a time. And since I (and all the other criminal defense lawyers like me) live with it, I get to call bullshit despite the best of intentions when it goes into dangerous places.
The people that have the authority to “fix the problem” are the same people that caused the problem. Let it be.
Once again, the same pattern: Stridently attack anyone who wants to address the issue in the political arena but offer no solutions of your own. You’re right: Most advocates don’t understand what goes on in the courtroom. The flip side: Most front-line lawyers, and you in particular, are utterly clueless about the political milieu and hold some of the most naïve, ridiculous views imaginable about how the world works outside their own narrow slice of it. It’s not enough to attack the ideas you don’t like if you never suggest solutions that would be better.
The skillsets and mindsets of those trying cases and those working in the political arena are radically different, which is why practicing lawyers are almost universally terrible lobbyists. Prosecutors have lobbyists who actively work to change the law to their liking. For the most part, the defense bar just whines, attacks anyone who tries to improve things then wonder why the deck is stacked against them.
I sometimes read your blog (less and less, as it’s become more repetitious over the years) because the front-line lawyer’s insight is valuable. But you consistently fail to understand that you suffer from the same shortcoming you find among advocates. You’re not just ignorant of how the political world works but seemingly proudly, defiantly ignorant, like a bratty teenager telling off his parents. The people who write the laws that govern your work for the most part aren’t lawyers, they’re elected officials with zero understanding about any of this stuff. Somebody’s got to communicate problems in the system to them in language they can understand if anything is ever to change. Wrongway nailed exactly what’s wrong with this post and many, many others at SJ. You mostly agree with HRW’s description of the problem but don’t like their solutions. Fine, suggest others. If you can’t, or won’t, your opinions don’t really matter to anyone but yourself and your echo chamber of do-nothing naysayers.
Now, go ahead and delete this since you can’t stand anyone disagreeing with you without a J.D. after their name. But it won’t make this post or your naysaying any less lame or irrelevant.
Grow up, Scott. Every problem doesn’t have a magic bullet solution that someone of no education and limited intelligence is capable of grasping. Your “political” solutions are how we got into this mess, with outrageous sentences, mandatory minimums, zero-tolerance, all quick simplistic “political” fixes that made perfect sense to the ignorant. And so you think more quick, simplistic fixes are the answer? Wonderful. You were the guy Mencken was talking about.
Don’t read SJ. No one will miss you.
So non-lawyer political advocates are going to solve the problems in the legal system by ignoring what experienced, practicing lawyers think and going instead with their own political solutions? And you’re angry with the mean lawyers for not supporting whatever idea you like and not offering you an easy, politically palatable solution?
And you can’t see how that might be a problem?
” The people who write the laws that govern your work for the most part aren’t lawyers, they’re elected officials with zero understanding about any of this stuff. ”
I don’t know about that- lots and lots and lots of legislators are lawyers in that many of them graduated from law school and may be admitted to practice in one or more jurisdictions. The political class draws heavily on the lawyer class. Not that everyone with a J.D. knows what goes on in criminal courtrooms, but I don’t buy the idea that politicians are from another planet than lawyers.
Isn’t that why they write laws in crayon?
I just checked the US house of representatives and of the first 180 members I looked at 23 had law degrees. The percentage is even lower in state legislatures and the few with any criminal law experience are former prosecutors.
I’m quite surprised it’s that low, though I believe they all have legal counsel.
The committee staff are usually very good but the members staff may have a fair number of interns. The original draft of a bill is done by experts but the ammendments are another matter.
In fairness, a friend of mine in the legislature (who was a former federal criminal defense lawyer) once told me over drinks that there wasn’t a soul who had a clue what due process meant. It didn’t take my friend long to become one of them.
Glad to know you follow me so closely. My argument’s quite simple: obsessing over plea bargaining frustrates and complicates the discussion among voters and legislators, making it harder to address excessive punishment, the issue where progress is most likely.
I’d say that you seem to agree it’s counterproductive to attempt a policy debate over the details of plea bargaining given the other larger factors at work — that’s the tenor of your post — but, as usual, it seems you have no answer at all, you just want to hurl insults at everyone else. What’s your solution?
In lieu of a proposed solution, please feel free to hurl an ad hominem at me.
Sorry, Max, but I don’t follow you at all. It was sent to me by a criminal defense lawyer who thought it was pathologically stupid. If he wants to admit to it, he can. I frankly don’t care much either way. It was just an example of how people who have never done something believe they’re entitled to opine about things they see only from a nice, sanitary distance. This isn’t an ad hominem. This is just fact, even if it hurts your feelings.
As with Scott Hensen, you think there’s always an easy fix. There isn’t. There is a very difficult, perhaps even impossible fix, which involves undoing the past 30 years of excessive punishment. Some of the recommendations in the report are the same things CDLs (myself included) have been seeking for a very long time. Oops, that’s right. I have offered solutions, like eliminating mandatory minimums, the sentencing guidelines, zero tolerance, etc. Guess you’re mistaken. Again.
But raising the ante on plea bargaining, making the possibility of lesser punishment unavailable in the right instances, in the name of some theoretical promise of fairness, isn’t the solution. Sorry if that hurts your feelings. Reality sucks, Max.
You tell em, Scott. As for Grits not reading the post, how can he stop? It is addictive! I have an idea: Let’s all write our congressmen/women and tell em what’s wrong with the bloody system they call criminal “justice.”
Couldn’t hurt, might help. Ha. And then mosey on down to the Sidewinder Cafe, in the words of Garrison Keillor. Now there’s a man who shoulda become a CDL; or better yet, a judge. We smell a food fight coming.
So your solution (reduced penalties) and your complaint (plea bargaining misses the issue) are the same as mine, just much longer, and with a bunch of ad hominems. Cool story, bro.
Exactly, Max. That’s why people are almost as fascinated with your brilliance as you are.
Hey, it just occurred to me that you ought to start a blog! I’m sure it would be a great!
Seems like Grits and Max are sad little boys sceaming for a grown-up’s attention.
Once again, Mencken had it absolutely right:
For every complex problem there is an answer that is clear, simple, and wrong.
I have spent a little time on both sides, and it is frustrating.
From the organization side, it was frustrating to me because the people responsible for grant-getting were often quite unfamiliar with the topic. Not always as bad as it sounds — grant-getting is a skill in itself, and they were good at that no matter the topic. More than one person would work on a project once we secured it, so people with real life experience could be added.
However, at times researchers did not want to hear from the life-experience people. (Why? Because those people didn’t have the right degree, and they were not in the business of grant-getting. And yes, often because they were chatty low-ranking women, not serious quiet researchers of whatever gender.)
This lack of awareness had the worst effect during the design and planning phases. For example, one study was having trouble getting responses from domestic violence victims. The study was designed as a half-hour (at least) phone call — which obviously they could not take at home, which left only work hours to take the survey. (This was pre-cell era.) Hmm. Having experienced people (say, a co-worker who had once run a shelter) provide input is so important but rarely done.
Once I read a proposal and listened to a project pitch. I asked, “Is that even Constitutional?” The researcher just looked at me and laughed.
Another problem — where is the funding? Funded topics change like trends in footwear! For awhile it was drugs. Then it was domestic violence. Then re-entry. Then everybody was wearing flip-flops, even to the White House. That is frustrating — funding is sometimes available for a needed area, but often it seems as though grant makers are not aware of where the holes in research are. This requires researchers to get creative but it can also mean that there are wide open spaces. (This is how legal services turned into pro se…that’s where the money was or was not.) The changes also mean that grant-getters need to learn the basics of an issue quickly, and if they do not surround themselves with (and listen to!) knowledgeable diverse people, they will fail.
I love connecting people with projects to people in practice. Everyone has so much to learn. That is a large part of what I used to do. I’ve always been a fan of what I call “theory-to-practice-and-vice-versa.” I try to encourage that still, even though I am mostly out of both these businesses.
Here, I see the frustration from the field. Overcoming it will take a lot of communication and empathy from everyone. Is any of us that patient?
I can appreciate how different aspects require different expertise, and I would no more pretend my mad skillz extend to grant-getting or empirical research. So why, then, is it so difficult for those who are engaged in other aspects to include practitioners in the discussion? Turf wars? Egos? We’re just so unpleasant because we throw a wet blanket on all the easy fixes?
In the interim between your first comment and this one, I heard from another person who is engaged in the mix, who began life as a practitioner and now serves in a more research and advocacy role, and who bemoaned the fact that whenever he puts on his practitioner hat, nobody wants to listen because it gets in the way of their theoretical dream world. To get along, he plays along, conflicted by the knowledge that the work is impractical and possibly dangerous, but trying not to become an outcase by being so disagreeable.
Turf wars and egos. It’s a shame that working together to achieve effective reform (rather than empty reform) is just too damn hard to do.
Why do I have the feeling that criminal defendants, those that are supposedly going to benefit from the “fix,” would not be in favor of the recommendations. That should probably be a clear indication that the “fix” is not such a good idea. Many, shall we say “experienced” defendants are keenly aware of the trial tax.
My experience with “experienced” defendants is that they understand that there are times to fight and times when fighting isn’t in their best interest. But every defendant needs to understand and appreciate what his options are, and if the only options are very excessive sentence or grotesquely excessive sentence, then no moderately rational person would be in favor of it.
SHG, it’s not your intent to educate folks like me, but I have a better grasp on the reasons for the growing frustrations from those who do give a crap. I was once one of those “throw away the key” turds in my youth, and now realize there are real people with lives, families who may care, and people who just make stupid mistakes. When you run afoul of the leviathan, you will be crushed. Will what’s left be unrecognizable on the concrete, or will you be a twitching, sputtering mess? Either way the outcome sucks, and that doesn’t sit well.
Within that framework, there remains the question of what can be done to effectively improve the outcome and what ideas seem as if they would help but will do grievous harm in the process to the very people you are trying to help. Ideas that may seem good from the outside aren’t always wonderful in practice. Should real change happen, we need to make damn sure it serves its purpose. We can’t afford to continue to screw things up over and over, and there are real people hurt by bad ideas with good intentions.
The reality is when the gov’t offers 8 years and when your client refuses, the prosecutors take it as an affront to their kindness that you were either too weak to get your client to take the great deal, or they think you told your client “screw it, we can get a better deal if we wait.”
The next court appearance the gov’t has added 5 new counts and when you ask for the new plea they smile and say “sorry, there’s no plea from me, your client can plea to the court.”
Often I, personally, would love trial. But the client either lacks the funds or I know the jury won’t find our defenses appealing and basically he’s now looking at life because he refused to snap up the alms of 8 yrs within 24 or 72 hrs or whatever absurd position the prosecutor emails you after arraignment.
Be careful. That may be your reality, but it isn’t necessarily anyone else’s. In my experience in federal court, AUSA’s don’t demand a plea within short time frames. Negotiations will often take place over months and, due to guidelines sentencing enhancements, become very fact bound.
But the government will undercharge a case in the initial indictment because they are as bound as we are. They do so to allow room to maneuver, whether it’s to gain cooperation or a plea (notably, no one has raised cooperation in this discussion, which is often what they want rather than a plea). It’s not that they couldn’t have indicted for everything under the sun up front, but then they would have had essentially no greater latitude than the relatively insignificant three point reduction for the plea.
What can’t be forgotten (though apparently is) is that they can fully charge a crime up front, but then the sentencing parameters exist within a very small range. So then, is it better to have a choice between 121 and 168 months, or a low of 60 months with a high of 168? Again, the goal is to get the grotesquely excessive top down, not the bottom up.
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It seems to me that the real problem is not the plea process, it is the outrageously excessive sentences that defendants face.
Most criminal defense attorneys, like SHG, practice in a world where any mechanism a defendant can use to avoid a lengthy, life-destroying sentence is a good thing – even if that means trading away one’s right to trial and pleading guilty. So when activists who don’t practice start denigrating the plea process they are right in some abstract sense – it sucks that defendants are de facto coerced into pleading out and giving up their right to a trial by jury. But given the insanely long sentences that defendants face, worrying about the plea seems like a misplaced concern. The plea process, unfair though it is, is one of the rare mechanisms that save defendants from a far worse fate.
I would ask the activists, why on earth focus on the plea process – or any process oriented solution for that matter? The real problem – the problem that skews every other aspect of the criminal justice system – is the excessive sentences.
Pretty much, yes. The solution is reducing the top end of the trial tax, not eliminating the bottom end of plea bargaining. The disparity is terribly wrong, but eliminate the disparity on the bottom end and you only get longer sentences. So yes, you are correct that the primary problem is the harshness of post-trial sentences, not the coercive nature of plea bargaining.
I suspect that the reason activists focus on plea bargaining is that it makes a fairly clear conceptual target for attack. Much as the Supreme Court has held it constitutional, most people find it unseemly, and the disparity between bargained sentences and post-trial sentences provides an easy mechanism to understand its coercive nature. It also raises some sound doctrinal issues, such as why a sentence is sufficient for the crime pre-trial but a multiple of the sentence is appropriate post trial? Like I said, a good and easily comprehensible target.
Going after excessive sentences is far harder.
At the risk of saying something crazy, I actually disagree with you. I think changing excessive sentences, while incredibly difficult, is an area where we are making some progress these days, both in legislatures and through courts. Some examples: Graham v. Florida, 3 Strikes reform in California, nonviolent LWOP reform in Louisiana, “right on crime” led sentencing reform in states like South Carolina, Georgia and South Dakota, New York’s reforms of the Rockefeller laws, juvenile sentencing reform in Delaware and California, etc.
Admittedly, these are very tiny steps forward. We have miles and miles to go.
On the other hand, I see the plea process as so deeply entrenched. So many actors in the system see it as a good and useful part of the system – in fact the whole system relies on it – that its hard for me to see reforming the plea system as an easy target.
I find it hard to see the difference between legitimate “benign,” “non-coercive” resource-saving pleas and the type of pleas that the HRW report was railing against as malignant and coercive. To me, all pleas are inherently coercive – though I’m not sure that makes them malignant. A plea is a bargain that must be satisfactory to and in the interests of both parties – in that sense the bargain is “fair.” But the state enters the negotiation with a ton more power than the defendant and so the defendant may accept a really terrible deal, because if he doesn’t he will be even more screwed. The answer, as you suggest, is not to prevent defendants from reaching deals with the state that defendants deem “fair” and in their interest, the answer is to make it so that prosecutors don’t enter those negotiations with such ridiculous amounts of power (in the form of long sentences hanging over the heads of defendants).
I see some movement as well, but I don’t know that it’s sufficient or sustainable. Will we ever get back to the time when a sentence of 10 years was considered about as severe as anyone should ever get for a drug case? It’s hard to imagine today, where 20 and 30 year sentences are routine.
A year in prison is a very long time, but we’ve come to see it as nothing after decades of living under the guidelines. Our value of time and life has been altered substantially for the worst and it’s unclear whether we can ever go back.
So what I gather from your post is that plea bargains are less of a miscarriage of justice than the trial itself, and that naive attempts to fix the miscarriage of plea bargains will, in fact, make things worse. Is this a fair summary?
No. Not only is it not a fair summary, but it’s not even close. Try this for the TL;dr version.
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