Is there no outlier, no pop cause, that can’t be seized upon to pursue a cause? On the one hand, the circumstances surrounding the Flynn case led to cries of cronyism and special treatment. On the other, they exposed the means by which law enforcement can use manipulation to get an indictable offense out of pretty much anyone, the perjury trap if you will. But Flynn as plea bargaining victim poster boy?
Michael Flynn, who was President Trump’s national security adviser for 24 days and who has been entangled in the criminal-justice system for 40 months, pleaded guilty of lying to FBI agents and now recants that plea. We shall return to Flynn below, but first consider Habeeb Audu, who is resisting extradition from Britain to the United States, where he is charged with various financial crimes.
The Cato Institute’s Clark Neily was asked by Audu’s lawyers to write, in accordance with British extradition practices, a Declaration — an “expert report” — about the risk that Audu would not have a meaningful right to a fair U.S. trial. Neily, a member of the American Bar Association’s Plea Bargaining Task Force and head of its subcommittee on impermissibly coercive plea bargains and plea practices, concludes that extradition would “guarantee” Audu’s subjection to a process that “routinely” coerces through plea bargaining. So Audu probably would experience “intolerable pressure designed to induce a waiver of his fundamental right to a fair trial.”
Clark knows plea bargaining better than anyone else at 35,000 feet. He’s not wrong that plea bargaining can be, and is, used to coerce defendants to plead guilty. In fact, it’s absolutely true, but with a caveat. Most defendants aren’t innocent. They may not be as guilty as the government claims, but if they went to trial they would lose. Crash and burn.
It’s not as if this is a big secret. Clark knows. SDNY Judge Jed Rakoff, also raised by Will, knows. And I know they know because I told them. Not once, but twice. In a sense, you can’t blame Clark, who is all think-tank and no cattle. He’s a lawyer, but not one who has ever sat in the stifling attorney visit room at an MCC to have that talk with a client about how a trial would go, about the snitches he once called brother who will now testify against him, about how his six prior convictions will be used against him should he testify, about the pretty government agents who look all sincere and honest as they testify about the 3000 hours of wiretaps where the defendant makes drugs deals using laughably obvious code words.
About how the defendant, after trial, will be sentenced to life plus cancer, never see his children grow up, graduate, marry, have children of their own. Never hold his grandchildren in his arms.
Have that talk a few hundred times and then, and only then, tell me about the glories of jury trials and the horrors of a guilty plea that gets you out in 121 months, a very long time but short enough to still have a life afterward.
Plea bargaining is, Neily argues “pervasive and coercive” partly because of today’s “trial penalty” — the difference between the sentences offered to those who plead guilty and the much more severe sentences typically imposed after a trial. This penalty discourages exercising a constitutional right. A defendant in a computer hacking case, Neily says, committed suicide during plea bargaining in which prosecutors said he could avoid a trial conviction and sentence of up to 35 years by pleading guilty and accepting a six-month sentence.
We’ve argued about whether this is a “trial tax” or a “plea discount,” which could be viewed as a semantic argument or as a test of a deeper understanding of the system. If our elected officials, reflecting the sensibilities of their constituents, chose to do so, they could make the penalty, the sentence, half of what it is now, even less than half, which would fundamentally alter the calculus of what’s at risk by going to trial. But they don’t.
And much as the unduly passionate call to reduce sentences, release prisoners, end mass incarceration, they’re fair-weather friends. Their tears for the mythical “non-violent drug possessors,” whom they characterize as disproportionately minority, to walk free. Everyone else, on the other hand, still deserves their life plus cancer. Mind you, these were the same defendants they demanded get life plus cancer when the drug epidemic was their gravest fear and they were all seen as Tony Montana poisoning their babies with crack.
Now, about Flynn. Perhaps he lied in an interview with FBI agents. We must, however, take their word for this, because, in accordance with an archaic and self-serving practice, the agents did not record the interview. They wrote their unverifiable version. This, although all FBI agents carry recording capabilities in their smartphones. After prosecutors threatened to indict his son, who was his business partner (remember the axiom: “A prosecutor can get a grand jury to indict a ham sandwich”), a coerced and impoverished Flynn, facing many millions in legal bills, and later selling his suburban Washington house, pleaded guilty.
Will isn’t wrong in this description, from the 302s to the threat to indict his son. The cost of a serious defense can be staggering, though most defendants get far better representation than Flynn for a fraction of the cost. But this isn’t a call for the FBI to change its policy to record interrogations, which it claimed it was going to do in 2014 but never happened. What happened to that? And all the tricks of the prosecution, superseders, stacking charges, indicting relatives, flipping sons against fathers and brother against brother, remains entirely legitimate prosecutorial weapons.
As these tricks go, Flynn was way ahead of most defendants. At least he could testify at trial, having been a general, educated and not having a rap sheet longer than he was tall. If anybody was ripe for trial, it was Flynn. And unlike most defendants, he had friends in high places who would give him more favorable consideration than most.
Flynn is the outlier, the tail, if you will. Don’t confuse what happened here with the reality of almost every other defendant in the trenches. Without plea bargaining, or in the alternative, a near-complete deconstruction of the carceral Rube Goldberg machine built up over the past 50 years, the elimination of this terrible plea bargaining system would mean that most defendants will die in prison rather than ever have half a chance of getting out.
Unlike Flynn, they don’t have friends in high places, and they can’t count on their fair-weather friends picking them as the poor, sad forgiven prisoners of the moment rather than the hated and despised prisoners the carceral woke demand suffer life plus cancer. Odd that George Will talked all about the Cato position on plea bargaining but left out the only person who has actually done it, actually knows something about it on the ground, who turns this simplistic solution sour. The only thing worse than plea bargaining is no plea bargaining. Because not every defendant is Michael Flynn, the tail who Will would have wag the dog.