Will Grabs Plea Bargaining By The Tail

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.

17 thoughts on “Will Grabs Plea Bargaining By The Tail

  1. Jermicheal

    “The cost of a serious defense can be staggering, though most defendants get far better representation than Flynn for a fraction of the cost.“

    I agree with the first clause, but what’s your basis for the remainder of the sentence? I assume you’re referring to the big law firm and not the lady from Dallas.

    1. SHG Post author

      I don’t know why you assume, but don’t assume.

      And if you don’t use a real email, don’t bother commenting anymore.

  2. Richard Kopf


    Ed Meese has been quoted as saying, “An expert is somebody who is more than 50 miles from home, has no responsibility for implementing the advice he gives, and shows slides.” As much as I am loath to rely upon anything said by the disgraced 75th United States Attorney General (1985–1988), Mr. Neil’s “expert” designation regarding the practice of plea bargaining fits Meese’s pithy description perfectly.

    That you twice explained to Neil (and fellow Catoites) the facts of life suggests, at the very least, willful blindness as those folks persist in their impractical and dangerous jihad against plea bargaining. Sure, defense counsel should go right ahead and reject the offer of a Rule 11(c)(1)(C) plea in a drugs and guns case pending before me or the host of others like me. Such a lawyer might as well post a copy of his or her malpractice policy on the Internet. Far more importantly, such a lawyers screws his client. But, hey, who cares when there are libertarian principles to pimp.

    All the best.


    1. SHG Post author

      I’m getting tired of explaining it. Then again, I lack sufficient expertise for George Will, et al.

      1. Richard Kopf

        I understand your frustration. I share it.

        I also apologize for misspelling Mr. Neily’s name.

        All the best.


  3. Jardinero1

    There is a statement in the penultimate paragraph that, “without plea bargaining… most defendants would die in prison.” This is a static comparison within a dynamic system. Static comparisons are typically wrong because a change of an input, within a dynamic system, creates a different dynamic system.

    There are a finite number of courtrooms, judges, and jurors and only 24 hours in a day. I don’t know if the current criminal justice system functions at capacity. Suppose it doesn’t, then maybe the system could crank out more trials in the absence of plea bargaining. But, it would take 16 times more trials to handle the 94 percent of state cases that currently plead out. Can the current system crank out sixteen times as many trials per year? I seriously doubt it.

    So, if plea bargaining were eliminated, most defendants would not die in prison. I don’t know what would happen to them. I don’t know if they would be charged. And, especially, I don’t know what the resultant system would look like; but, for sure, it would not look anything like the present system, just minus the plea bargaining. Historically, most common law countries functioned, for most of their histories, without plea bargaining. The last common law country to introduce plea bargaining was India, which began the process in the early oughts of this century. The interesting thing to note about plea bargaining is that as it has grown, prison populations have grown at a greater rate.

    1. SHG Post author

      This is yet another discussion that’s been had many times, which is why it’s not revisited by those of us who do this and raised only by those who don’t. You make the rookie assumption that the system wouldn’t crank up (and down) to meet the challenge. You’re right that it’s a dynamic system. You’re wrong to assume that it wouldn’t manage to accommodate the need in the worst possible way, like multiplying the number of prosecutors and reducing the time of trial to accommodate the needs.

      Plea bargaining hasn’t grown prison pops. The number of crimes, police and arrests do.

      1. Miles

        You explain why simplistic solutions don’t work, so invariably every clueless genius responds, “but what about my simplistic solution” as if it hasn’t been raised and shredded a million times before. This must be such fun for you.

      2. Jardinero1

        What is obvious, at least from the outside looking in, is that the carceral state made the system sixteen times more efficient through the use of plea bargaining. Effectively, plea bargaining has allowed the state to draft the Defense Bar and have it do the heavy lifting. Consider the bargaining dynamic each way. Under the plea bargaining regime, a prosecutor can say, “I will prosecute every case that comes my way, even an infinite number of cases; unless the defense provides me a strong reason not to.” Without plea bargaining, the dynamic and incentives are reversed. Defense says, “I will defend every case, even an infinite number of cases. Let the prosecution choose which case they can prove in their ever so finitely staffed and finitely budgeted court system.” In the latter dynamic, the burden is on the prosecutor to choose only the cases which most likely can be proven at trial. In the former, the Defense must choose which cases can be acquitted. In either dynamic, the choosing party has the weaker bargaining position.

        Your vantage point is that of the highly experienced legal practitioner dealing with the discrete inputs(defendants) to the system. From that vantage point, you know if they are guilty most of the time. You know if they likely will lose at trial, if it goes to trial. When you compose all those discrete inputs, yes, it looks like the state would prevail and they would all end up in jail, with a trial penalty to boot. But you can’t compose all those discrete inputs and end up with the same result. In context of the whole, yet finite, system; their guilt or innocence is not the decisive factor. The decisive factor is who is in the better bargaining position. With plea bargaining, the prosecution always has the better position. With plea bargaining more people will go to jail.

        One can’t wave the hand and assume the taxpayers will pay for sixteen times as many prosecutors, court buildings and jurors, especially jurors. The state level criminal justice system is funded by local taxpayers and the jury pool is also to be found locally. There might be some improvements, in output, to be had via increased local taxation and decreased size of juries, but not an order of magnitude more.

        1. SHG Post author

          Did something give you the impression that lawyers at a law blog would be deeply interested in how it looks to you?

          You don’t understand the dynamic and have no wasted a lot of my bandwidth of horseshit that mattered to no one but you. Go hit the tip cup.

          1. Jardinero1

            With regard your first question, no, it never occurred to me. The matter of plea bargaining is not strictly a law or lawyer issue the way Jessup v Fresno, or Wisconson Legislature v Palm is. I stay out of those discussions. But the societal effects of plea bargaining are a legislative and public policy issue and, as such, deserve more than a lawyer or legal analysis. Will offered a non-lawyer, non-legal analysis. You criticized Will’s analysis and I criticized your analysis of the analysis. You opened the door. Otherwise, I would refrain from comment.

            I left a tip. Thanks very much for your daily work and your tolerance of we occasional, lesser, non-lawyer commenters.

            1. SHG Post author

              lol. So you did. The problem isn’t that you shouldn’t be interested in the social impact of plea bargaining (you should), but that the mechanics and dynamics of it aren’t so easily reduced to an equation. There is no one-size-fits-all answer.

  4. Richard Foxall

    A thousand times this. And, as a defense attorney, 25 years into this as an urban public defender, the last 15 nothing but life exposure (or worse) cases, I want to scream every time one of these guys who has never been in a courtroom defending a serious case, never had a client in jail, gets a public forum. “Reformed” prosecutors, nouveau “reformists,” they all need to get in line behind those of us who got it from the beginning and devoted our lives to fighting back. Before you take away plea bargaining, you have to solve the “trial tax” and coercive sentencing problem in all cases. And that is not happening.

    1. SHG Post author

      Exactly. They see it as “a” problem rather than the accumulation of all the systemic problems, and they see trials as if they’re some sort of magic cure, completely clueless as to how hard it is to try a case and prevail.

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