In this morning’s NY Times, legal columnist Adam Liptak writes about something that’s been troubling me for a long time: The pressure on those accused of a crime, particularly if the accused is low-income, to take a deal rather than go to trial. I’ve personally seen it occur on a zillion occasions. And certainly, in many cases, the deal is the best course. But where the pressure gets the most troubling is when the accused doesn’t happen to be….well….guilty.
Liptak also focuses on civil cases, which present their own kind of problem in terms of the prevalence of settlements. But it’s the world of criminal courts with which I’m the most familiar—and in which this deal-making trend seems to be particularly pernicious.
Here’s what Liptak has to say:
In criminal cases, the vast majority of prosecutions end in plea bargains. In an article called “Vanishing Trials, Vanishing Juries, Vanishing Constitution” in the Suffolk University Law Review last year, a federal judge questioned the fairness of the choices confronting many criminal defendants.
Those who have the temerity to “request the jury trial guaranteed them under the U.S. Constitution,” wrote the judge, William G. Young of the Federal District Court in Boston, face “savage sentences” that can be five times as long as those meted out to defendants who plead guilty and cooperate with the government.
The movement away from jury trials is not just a societal reallocation of resources or a policy choice. Rather, as Judge Young put it, it represents a disavowal of “the most stunning and successful experiment in direct popular sovereignty in all history.”
In California, with its overburdened criminal courts, there is a palpably strong prejudice against trials, which are after all quite expensive. With the high profile or affluent accused—Phil Spector, O.J. Simpson and an array down from there— we are content to spend the money. But with your average gang member…or, say, homeless drug user, the indirect, and often quite direct implication is, “Dude. You’re nobody, so why in the world would we want to spend time and money on you? Take the deal or we’ll bury you. Count on it.”
And in most cases, prosecutors are more than able to make good on the threat. In gang cases in particular, presumption of innocence is all too rarely present. “Prove” the kid is a gang member, and the rest of the road is greased. Juries will fill in the blanks as long as prosecutors provide even the most minimal trail of breadcrumbs.
Got no good witnesses? They must be out there but afraid to testify. Witnesses say the defendant doesn’t really look like the drug dealer (or the robber or car jacker or shooter)? They must have been threatened by gangsters. Kid didn’t have anything to do with the crime but was just standing in the area? He’s a cold-hearted gangster so he must have had a part in it. Or if he didn’t, he might next time. (In a gang case, the movie “Minority Report” plays like a documentary.)
On the other hand, there is an entirely different way to look at deal making in the criminal system: At times, it’s an act of kindness and mercy.