The American Injustice System
When we talk about the American injustice system often we focus on mass incarceration after all 2.3 million people locked in cages are hard to miss. In doing so we miss the more than 4 million non-incarcerated people of the nearly 7 million people under some sort of correctional supervision in America. Almost none of whom had a trial to prove guilt or innocence.
On average 94 percent of state convictions and nearly 97 percent of federal convictions are obtained through plea bargaining. None of the defendants had a substantive choice in taking those deals regardless of guilt or innocence.
With these statistics alone it is fair to say justice in America is a sick joke but it does get worse.
Of those 2.3 million people locked in cages, more than 540 thousand have neither been convicted of a crime nor sentenced. Fifteen thousand of those are children and 9 thousand are in custody for some sort of psychiatric evaluation or treatment.
Most of those imprisoned in pretrial confinement are not locked up because they pose a threat to the community or pose a flight risk. They are locked up because they can not afford the bail necessary to secure their release. The average bail amount for a felony is 10 thousand dollars or around 8 months’ worth of income for the typical detainee.
Add to this over-policing, criminalization of so-called quality of life infractions, over-sentencing of drug offenses, as well as, based on race, income and mental health status. Suddenly it becomes clear why we have a mass incarceration problem, so that when we look back and add to this stew the money bail system and plea bargaining the how also becomes clear.
Not every defendant that pleads guilty in a plea bargain is innocent will be the argument of some and they are right.
The response to this argument is twofold the first being Blackstone’s Ratio. According to William Blackstone in his seminal work Commentaries on the Laws of England, published in 1760, “It is better that ten guilty persons escape than that one innocent suffer.”
The other argument is that those that did commit a crime but plead guilty to a crime they didn’t commit may be escaping justice.
They accept these deals to avoid the collateral consequences of the crime they committed. Generally, this might happen in three spheres where such collateral consequences are most pronounced but there are thousands of such non-criminal consequences that a defendant might want to avoid, such as loss of student aid or access to affordable housing.
A defendant might do this if deportation is likely for the crime committed, such as in the case of a drug offense or in sex offenses where they would be further punished by having to register as a sex offender, in some states for life even if their risk to the community is low.
Finally, in the American injustice system, defendants plead guilty in cases when the crime committed is a felony but can be pled down to a misdemeanor to avoid a felony record.
Under Rule 11 of the Federal Rules of Criminal Procedure requires a factual basis for most pleas which would prevent this except two Supreme Court Rulings seem to negate this rule in favor of prosecutor discretion.
Libretti v. U.S. found that this rule only applies to a plea of guilty for the substantive crime listed in the indictment, not for the forfeiture of assets that were part of the plea agreement. In Padiia v. Kentucky the case was reversed and remanded back to the lower courts with an opinion suggesting that a defendant’s attorney is required to advise the defendant of collateral consequences and that discretion could be applied to better mete out a fair outcome that met both the needs of the state and defendants.
The other injustice here is the innocent defendants who are compelled to plead guilty to crimes they didn’t commit.
Defendants believe they don’t have a choice about taking a plea deal offered to them for any number of reasons ranging from implicit or outright intimidation of themselves or their family with threats of excessively long sentences if the defendant goes to trial to a normal human desire not to be locked in a cage for up to 23 hours a day, which is the practice of many local jails even when their official policy says otherwise.
Other ways defendants are forced into taking plea deals is through the practice of overcharging defendants, mental health concerns that may not rise to a legal standard that would prevent such a deal but which substantively impact a defendant’s ability to fight their case adequately. The very fact that they are incarcerated reduces a defendant’s ability to fight their case, making it more likely that they will take a plea bargain.
Neither of these sets of injustices was ever meant to be. The Constitution explicitly states that all crimes are to be tried by a Jury of their Peers or by a Judge. It is the later of the two methods of trial that prosecutors were able to usurp justice in America with an injustice system of plea bargaining that now calls itself a justice system.
The system it has created has only one purpose to perpetuate and expand mass incarceration by reducing the time and cost incurred by an actual trial by a Jury or Judge, expanding the number of criminal offenses and giving prosecutors and judges an inappropriate amount of influence over the outcomes of criminal cases.
If we are serious about ending mass incarceration we must get serious about ending this uniquely American system of injustice called the plea bargain.