For a Kid, Plea At Your Own Risk

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John Last 1“Everybody in there is innocent, right?” This statement, or some variation of it, usually followed by laughter, comes up in a lot of conversations when I talk about doing time.

It appears to be a common perception, verging on a stereotype, that prisons are full of people proclaiming their innocence. My experience was actually the opposite. Most men in prison admitted they had done something that led to their situation. More common was a story about extenuating circumstances, or how, even though they were guilty, the police and courts had abused their power somehow to prove it. Most had pleaded guilty. Men that flatly claim to be not guilty are rare, and at least some of them are truly innocent.

Some of the innocent plead guilty to lesser crimes because of the threats of prosecutors.

Juveniles are not immune to this, especially when they are tried as adults. In these cases they are often not mature enough to evaluate the consequences of not bargaining. It is a typical prosecutorial strategy to push for the imposition of harsher sentences against defendants who dare to actually go to trial. In other cases they are advised to plead even when they have a good case.

This was the story of Brian Banks, who was sentenced to five years in prison and five years on probation, and a lifetime on the sex offender registry, after pleading no contest to the rape of a high school classmate. Banks was 16 at the time of the alleged crime, and 17 when he took the advice of his attorney to plead. He was facing 41 years to life, and even though he maintained his innocence to his attorney, she told him that when he walked into the courtroom all that the jurors would see was a “big, black teenager,” and decide that he was guilty.  He was led to expect a three-year sentence, and to get credit for time served, but such mercy was not forthcoming.

As reported on NPR, Banks’ accuser contacted him via Facebook a few years after his release. She eventually was recorded admitting there was no rape, and that she was afraid to come forward because her mother had been awarded $1.5 million from the school district. He was cleared a few weeks ago of all charges.

We are hearing about Brian Banks’ story because he was a high school football star with a bright future. He had been awarded a scholarship to USC and was expected to have a shot in the NFL. His dream died with his conviction, even after he did his time. Because of his status no team was willing to touch him, but now, as reported by CBS Sports and other outlets, he has earned the chance for a try out with at least one professional team, the Seattle Seahawks. He is 26 and still in excellent condition. He has a chance to live his dream again.

Other, less athletically gifted youth are not so lucky. No one knows for sure the impact of plea bargaining on kids. Some plead when they shouldn’t, like Brian Banks. There was no physical evidence against him, but he wasn’t able to make a good decision. Some kids experience the opposite side of the coin. According to Second Chances for Youth, a Michigan-based group that advocates for human rights and sentencing fairness for youth, more than 70 percent of youth charged with homicide receive an opportunity to plea bargain, but many refuse. In Michigan they often end up with a sentence of life without parole.

The site quotes Larry Phelan, a defense attorney: “I practically begged [my client] to take [the plea agreement for a lesser charge] but [he] turned it down.  [A]nd now this young man who is 15 years old is going to spend the rest of his life in prison and it’s a tragedy.”  Around 100 youth in Michigan had a chance to receive a lesser sentence but failed to take it. In many ways they are fundamentally unequipped to make these types of decisions.

There is no standardization of plea bargaining, even within states. The consequences are dire for many youth who find themselves faced with such decisions, and even those who have counsel are often misled.

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