Plea Deals: An Unconstitutional Bandaid for our Overburdened Justice System
Plea deals are like contracts; the defendant agrees to plead guilty in exchange for a more moderate sentence or for certain charges to be dropped. [1] Prosecutors are eager to offer this deal because it allows them to avoid taking the defendant to trial, a process that requires time and money. While this seems like a mutually beneficial process, in reality the plea deal system as it currently exists is unconstitutional because defendants are often coerced into pleading guilty and are required to waive key constitutional rights in the process.
Plea deals present an inherently difficult decision for defendants: take a deal with a potentially lighter sentence than you would get if you went to trial, or go to trial and argue your innocence. To take a plea deal, defendants have to waive three of their constitutional rights: the right to a jury trial (Seventh Amendment), the right to not self-incriminate (Fifth Amendment), and the right to confront and present witnesses (Sixth Amendment). [2] Additionally, prosecutors can write clauses into plea agreements that imply far more than simply a guilty plea from the defendant. The impact of this deceptive practice became even more consequential during the past two years when, in response to the Covid-19 pandemic, prosecutors in several states began adding a clause to plea deals that removed defendants’ eligibility for an early release program called compassionate release. [3] Compassionate release allows incarcerated people to request an early release due to “extraordinary or compelling circumstances which could not reasonably have been foreseen by the court at the time of sentencing.” [4] By adding this clause, prosecutors ensured that any defendant, regardless of the exigency of their illness, would be forced to remain in prison even if they were certain to die.
Prosecutors began removing eligibility for compassionate release in plea deals after compassionate release requests increased twelvefold in 2020 due to the additional people placed at risk because of the Covid-19 pandemic, such as the immunocompromised and those with preexisting health conditions. [5] Compassionate release requests go to the court that sentenced the person requesting an early release, which means that the same prosecutor’s office who is offering a plea deal to someone is also reviewing that person’s compassionate release. [6] The court system was already overburdened prior to the pandemic, so the rapid and exponential growth of compassionate release cases put pressure on prosecutors to incorporate a clause limiting defendants’ eligibility. [7] On March 10, 2022, the U.S Department of Justice (DOJ) released a statement ordering prosecutors to stop limiting compassionate release eligibility in plea deals, calling the practice “pernicious,” “wrong,” and “unduly coercive.” [8] The DOJ’s decision prevents prosecutors from incorporating compassionate release limitations in plea deals, but fails to address the greater problems regarding coercive practices within the plea bargaining system that led to limits on compassionate release.
Despite incidents like this, 90-95% of defendants choose to plead guilty. [9] Some may argue that the vast majority of defendants plead guilty because of the benefits incorporated into the deal: lessened sentences, some charges being dropped, shorter pre-trial detention, etc. While those are real benefits for defendants, these benefits are largely manufactured by the courts and coerce innocent people into pleading guilty. In fact, many defendants are coerced into pleading guilty solely to avoid what is called a “trial penalty.”
In legal scholarship, the term “trial penalty” is used to refer to the “substantially longer” sentences that defendants receive when they choose to go to trial after declining a plea deal. [10] Trial penalties are inherently coercive because they are implicit threats; they are designed to scare defendants into taking a plea and waiving their rights regardless of their innocence because defendants know they will receive a much worse sentence if their case isn’t strong enough. Logically, defense attorneys are meant to play the role of advisor, allowing defendants to reasonably gauge their chance of successfully pleading not-guilty. However, public defenders—which are oftentimes the sole option for low-income defendants—are also motivated to encourage defendants to take plea deals due to their overburdened caseloads, which prevent them from being able to take all of their cases to trial. [11]
Therefore, defendants must weigh the costs of going to trial against their uninformed perception of the strength of their case. The tougher sentencing laws—including mandatory minimums—that were established by the Sentencing Reform Act of 1984 have made the prospect of going to trial more daunting, and plea deals more enticing because they can circumvent mandatory minimums. [12] [13] Data seems to support that the fear of tougher sentences has pushed more people to plea; from 1976 to 2009, the percentage of cases taken to trial decreased from 8% to 2.3% despite the caseload tripling. [14] According to McCarthy v. United States (1969), defendants’ guilty pleas must be made voluntarily. [15] If defendants are coerced into pleading guilty by trial penalties and manufactured mandatory minimums, their guilty plea is not made voluntarily.
Plea deals are a bandaid for the judicial system; they stop what would otherwise be an enormous amount of trials from overtaking the courts. While in that sense plea deals are effective, it is clear that they fail to protect the constitutional rights of defendants as established by McCarthy v. United States and the Fifth and Sixth Amendments. In the DOJ’s own words, plea bargaining has the capacity to be “unduly coercive” when plea bargains are made with the sole intent of speeding up the court system. [16] To protect defendants’ rights, the plea system as we know it must change. An avenue for starting this process entails not relying as much on pleas to speed up the judicial process by establishing specialized courts that can take all cases of a certain variety. For example, one district has experimented with establishing drug courts and declining to prosecute first-time offenders. [17] Removing mandatory minimums and lessening the number of offenses that result in incarceration is another avenue, as it would alleviate some of the coercive pressure to plead guilty that defendants are currently under. Regardless of what the solution is, it is important to recognize that the unconstitutionality of the plea deal system affects every person charged with a serious crime and leads to innocent people being locked behind bars.
edited by Kate Strong
Sources:
[1] “How Courts Work.” Americanbar.org (November 2021) https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/pleabargaining/.
[2] “Plea Bargain Overview.” Legal Information Institute, Legal Information Institute, https://www.law.cornell.edu/wex/plea_bargain.
[3] Carrie Johnson. “The U.S. Is Limiting Compassionate Release in Plea Deals. Many Say That's Cruel.” NPR, NPR (16 February 2022) https://www.npr.org/2022/02/16/1080863822/the-u-s-is-limiting-compassionate-release-in-plea-deals-many-say-thats-cruel.
[4] “Compassionate Release/Reduction in Sentence: Procedures ...,” U.S. Department of Justice Program Statement 5050.50 Compassionate Release, January 2019, https://www.bop.gov/policy/progstat/5050_050_EN.pdf.
[5] “Compassionate Release: The Impact of the First Step Act and Covid-19 Pandemic.” United States Sentencing Commission( 10 March 2022) https://www.ussc.gov/research/research-reports/compassionate-release-impact-first-step-act-and-covid-19-pandemic?utm_medium=email&utm_source=govdelivery.
[6] Stephen Sady and Elizabeth Daily. “Compassionate Release Basics for Federal Public Defenders.” Federal Public Defender District of Oregon (31 January 2019) https://or.fd.org/system/files/case_docs/Compassionate%20Release%20Basics_REVISED_2templates.pdf.
[7] “Overburdened Courts=Cursory Process.” Innocence Project New Orleans (IPNO) (30 May 2018) https://ip-no.org/what-we-do/advocate-for-change/overburdened-institutions/courts/#:~:text=Overburdened%20courts%20%3D%20cursory%20process.&text=In%20a%20system%20framed%20by,with%20a%20thorough%20criminal%20process.
[8] Carrie Johnson. “Justice Department Ends Limiting Compassionate Release in Plea Deals after NPR Story.” Georgia Public Broadcasting (14 May 2022) https://www.gpb.org/news/2022/03/14/justice-department-ends-limiting-compassionate-release-in-plea-deals-after-npr.
[9] Lindsey Devers. “Plea and Charge Bargaining Research Summary.” Bureau of Justice Assistance (24 January 2011) https://bja.ojp.gov/sites/g/files/xyckuh186/files/media/document/PleaBargainingResearchSummary.pdf.
[10] David Abrams. “Putting the Trial Penalty on Trial.” Penn Law: Legal Scholarship Repository (2013) https://scholarship.law.upenn.edu/faculty_scholarship/694/#:~:text=The%20%22trial%20penalty%22%20is%20a,plea%20bargain%2C%20often%20substantially%20longer.
[11] Richard Oppel. “Sentencing Shift Gives New Leverage to Prosecutors.” The New York Times, The New York Times (26 September 2011) https://www.nytimes.com/2011/09/26/us/tough-sentences-help-prosecutors-push-for-plea-bargains.html.
[12] Hamilton Fish. “H.R.5773 - Sentencing Reform Act of 1984 98th Congress (1983-1984).” Congress.gov, https://www.congress.gov/bill/98th-congress/house-bill/5773.
[13] Jen Reynolds. “Mandatory Minimums and Plea Bargaining .” Indisputably (25 September 2019) http://indisputably.org/2019/09/mandatory-minimums-and-plea-bargaining/.
[14] Richard Oppel. “Sentencing Shift Gives New Leverage to Prosecutors.” The New York Times, The New York Times (26 September 2011) https://www.nytimes.com/2011/09/26/us/tough-sentences-help-prosecutors-push-for-plea-bargains.html.
[15] “Plea Bargain Overview.” Legal Information Institute, Legal Information Institute, https://www.law.cornell.edu/wex/plea_bargain.
[16] Carrie Johnson. “Justice Department Ends Limiting Compassionate Release in Plea Deals after NPR Story.” Georgia Public Broadcasting (14 May 2022) https://www.gpb.org/news/2022/03/14/justice-department-ends-limiting-compassionate-release-in-plea-deals-after-npr.
[17] “Heavy Caseloads and Delay.” CliffsNotes, https://www.cliffsnotes.com/study-guides/criminal-justice/criminal-courts/heavy-caseloads-and-delay.