Some things I just don’t get.
I get it that the fastest runner doesn’t always win the race and the strongest doesn’t always win the battle. I get it that chance can decide outcomes. And when chance is the deciding factor, it seems unfair to the fastest and the strongest, but welcome to the underdog.
What I don’t get is when doing what is right for kids is left to chance.
No matter how we cut it, it isn’t fair that chance decides whether a kid will get treated respectfully by a cop, sentenced fairly by a judge or supervised with care by a probation officer depending on their ZIP code.
It shouldn’t matter where someone lives, even if that ZIP code doesn’t have the same resources as the next. No matter what we lack in the way of services, we never lack in our ability to control how we administer justice to the kids and families who touch the juvenile justice system.
Plea bargaining is one of those things that rub me the wrong way.
I understand the practical reasons for plea bargaining. I have been on the receiving end as a criminal defense attorney and the giving end sitting in juvenile and adult courts as a judge. I know the how-to practice of plea bargaining like the back of my hand. It’s why we do it the way we do it — and yet walk away unsuspecting of the harmful effects that may result — that bothers me.
While reading a story published in JJIE about the plea bargaining experience of a young lady named Mariah Charles, I was reminded of some bad experiences of plea bargaining in my days of criminal defense and during my earlier days on the juvenile court bench. These experiences inspired me to take drastic steps to alter how pleas are processed in my juvenile court.
Mariah’s story inspired me to share why and how I made these changes. I will come back to Mariah’s story in a subsequent column, but it’s necessary to first understand the what, how and why of plea bargaining before we can attempt to grasp its inherent evils.
The process of plea bargaining is not as simple as it may look. When I sit as a superior court judge presiding over an adult criminal plea docket, I am not as bothered taking pleas negotiated between the state’s attorney and the adult defendant by and through his defense attorney. I still have concerns, but those concerns are mitigated by several characteristics that distinguish between adolescents and adults accused of a crime.
These distinguishing characteristics explain why we created juvenile courts, and why we don’t believe that kids in general should be subjected to the adult criminal justice system. It should go without saying that by creating a different justice system for kids, how we treat them will also be different, and that should include how we bargain for admissions.
My solution is simple. Eliminate plea bargaining in juvenile court.
Plea bargaining is one of those legal mechanisms that has no place in the juvenile justice system.
This is the first of five columns about plea bargaining, its harmful effect on youth and the community, and strategies on how to replace plea bargaining with a process that will improve youth outcomes and enhance public safety while simultaneously minimizing a congestion in court dockets. But the conversation about the concerns with plea bargaining drives a larger conversation around why a system of justice would be married to a problematic technique that proves more harmful than helpful for our kids and for the community.
In short, this series of columns calls for juvenile justice systems, which are still married to the traditional plea-bargaining approach of sentencing, to replace that with evidence-based tools that a growing number of courts employ today. These tools include, for example, validated risk and need instruments that identify which youth should be diverted from the courtroom and those who require supervision. But more important is identifying what works that will reduce the risk of recidivism.
The use of these tools is prohibited before arraignment on charges because it requires soliciting personal and family-related information. Some of that could be incriminating, which would violate the youth’s Fifth Amendment right against self-incrimination. This means that a system that employs the traditional plea-bargaining process in which the prosecutor offers the youth a sweet deal to influence an admission and avoid a trial is far less likely to identify the needs of the youth in order to fashion a disposition that is best suited for the youth and public safety.
This will rock the world of prosecutors and defense attorneys who are steeped in the traditional use of plea bargaining because no longer will they play a significant role in fashioning a disposition order on how the kid will be treated on probation, or whether the kid should be committed to state custody. And at the risk of offending them, they must be removed from negotiating what’s the best strategy to restore the youth because they have no clue what’s the best strategy for that youth.
And, if prosecutors and defense attorneys are negotiating rehabilitative conditions wearing a blindfold, how is that protecting the public?
This also means that prosecutors (And I am talking about those who don’t understand the rehabilitative goals of the juvenile justice system) can no longer threaten harsher punishers to coerce an admission by offering a sweeter deal if the kid admits. Wouldn’t it be something to have a system for kids that allows them to admit because they know they are guilty, and not because they’re afraid of getting slammed by the judge for exercising their constitutional rights set forth in In re Gault.
It’s losing the quid pro quo, or “something for something,” negotiating a disposition, that scares prosecutors and defenders alike, but for different reasons. Prosecutors enjoy threatening a harsher punishment in exchange for an admission to avoid a time-consuming trial. Defenders enjoy receiving a sweet deal from the prosecutor to prevent harsher sentencing. Prosecutors don’t have time to prosecute every case and defenders have an obligation to represent their youthful client zealously, and that means lighter sentences.
“Really?” they say out loud to my face, “Are you crazy?”
Maybe I am, but it’s a “good crazy” I tell them with a smile.
It only looks crazy because it’s a gigantic shift in practice, but it’s a good shift because it benefits the kids and the community at the same time. No longer is a juvenile sentence fashioned blindly by two lawyers jockeying for the best quid pro quo.
In lieu of a disposition process driven by two people bargaining for less than altruistic goals, a youth would be engaged by a process that is constitutionally friendly. If they are adjudicated by admission or trial, they are subjected to an objective and individualized assessment to determine what will work to improve the trajectory of the youth and in turn enhance the safety of the community. Recommendations provided at a disposition by a court officer using evidence-based tools remain subject to scrutiny by the prosecutor and defender, including the right to present separate or controverting evidence.
Now that you know where I am going with this, and a little bit about why, let’s stop for now and take up the why in greater detail later. I believe it to be advantageous to some, especially those unfamiliar with plea bargaining (there are more folks than not who work in the juvenile justice system outside the courtroom) to understand the how, what, when and why of plea bargaining in order to understand why plea bargaining in its traditional sense has no place in the juvenile justice system.
This series on plea bargaining can be likened to landing a plane. This first column begins at the highest altitude by taking a comprehensive look at plea bargaining, discussing its historical development and the arguments for and against its use. The columns to follow are analogous to the plane descending to its destination, as each is devoted to a specific and exclusive facet of plea bargaining to help the reader appreciate how plea bargaining works and explain in what ways it is harmful, but also what a better system looks like and what strategies work to transition to a better disposition process.
Part 2 looks at the dynamics of how plea bargaining plays out and the role of the judge, prosecutor, defense attorney and the law in the plea-bargaining process. These dynamics can result in unintended consequences as I will show by dissecting the true story of Mariah Charles’ brush with the law and her principled stand against the prosecution.
By the end of Part 2, the reader should be familiar enough with plea bargaining to transition in Part Three to understand how plea bargaining is contrary to the rehabilitative goals of the juvenile justice system. Part 3 will delve into what works to prevent delinquency and how plea bargaining compromises what works for kids.
Parts 4 and 5 focus on practical approaches to implement the best practices shared in Part 3 and what an evidence-based juvenile court process looks like without plea bargaining.
In the beginning no plea bargaining
Plea bargaining is a relatively new concept in American jurisprudence. It wasn’t recognized as a legitimate practice until the late ’60s when the President’s Commission on Law Enforcement and Administration of Justice documented the widespread use of plea bargaining and recommended recognizing the practice. Most jurisdictions considered plea bargaining inappropriate because offers of lighter sentences were viewed as coercive and would increase the risk that innocent people would enter a guilty plea to avoid prison or worse, the death penalty.
Sometimes seeing smoke doesn’t mean there is a fire, and sometimes looking guilty is not the same as being guilty.
Those who drafted our Bill of Rights were not far removed from horrific experiences that cost the lives of many innocent people, which likely influenced why our Constitution included a justice system that emphasized protecting the innocent over condemning the guilty.
One of the earliest forms of plea bargaining occurred during the Salem witch trials of 1692-93, about a century before ratification of our Constitution. Undoubtedly weighing on the minds of those who drafted our Fifth Amendment right against self-incrimination were the 20 men and women hung on very dubious accusations they were practicing witchcraft. The drafters likely also recalled those whose lives were spared by bargaining with the prosecutor and court to spare their life if they not only confessed to being a witch or warlock, but named others who were witches and warlocks.
Like a virus spreading a deadly disease throughout the population, plea bargaining was the viral tool spreading death and despair to many innocent citizens of Salem.
The witch trials were a clear case of how wrongful means can result in unjust ends. To the drafters the remedy was to create a system that employed just means in order to avoid unjust ends.
While this fearful frenzy around witches and warlocks had kidnapped the sanity of Salem leaders, some observers of the day, like the president of Harvard College, Increase Mather, admonished those presiding over the trials for its lack of due process, saying, “It is better that 10 suspected witches should escape than one innocent person be condemned.”
Between the horrific memories of the witch trials and the ratification of the Bill of Rights, which included a prohibition against coercing an accused person to confess, plea bargaining was viewed by the courts for many years as unethical at best and illegal at worst. Notwithstanding the concerns around plea bargaining, it began to appear in a few jurisdictions during the mid- to late 1800s with some limitations. The earliest form of plea bargaining appeared in Boston during the 1830s in matters involving public ordinances, but by the 1850s it had spread to felony cases. By the early 20th century the practice began to spread to include New York City and Chicago.
Two years after receiving approval from the President’s Commission in 1967, the question of guilty pleas made its way to the U.S. Supreme Court in Boykin v. Alabama, which held that a trial judge has the duty to examine the defendant who is entering a plea of guilty to determine if his or her plea is freely and voluntarily made. A year following Boykin, the Supreme Court addressed the legal legitimacy of plea bargaining in Brady v. United States, holding that entering a guilty plea to avoid the risk of greater penalties does not make that plea constitutionally invalid as the product of coercion.
And so plea bargaining has become a way of life inside our criminal justice system, and unfortunately for our kids it’s a way of life inside many juvenile justice systems.
Better to free guilty than hang innocent
A discussion around the contrariness of plea bargaining in juvenile courts cannot be had without laying a foundation that describes the basic constitutional tenets of our criminal justice system. Notwithstanding the Supreme Court’s ratification of plea bargaining in Brady, the decision didn’t necessarily make plea bargaining an effective practice in all respects, and this is especially true in our juvenile courts.
Protecting the innocent at the expense of setting free the guilty is a principle so axiomatic to a society like our own that elevates freedom over tyranny that our U.S. Supreme Court underscored this axiom as a fundamental cornerstone of our justice system, saying, “It is better to let the crime of a guilty person go unpunished than to condemn the innocent.”
Just as Increase Mather was bothered by the accusatorial frenzy that plea bargaining incited during the Salem witch trials, our constitutional framers were also alarmed that it or similar events could be repeated unless language was imbedded in our Constitution that would protect the innocent even if it was so at the expense of setting some guilty free.
I often hear folks complain that our system of justice “coddles” or “favors” criminals, and quite frankly there is some truth to what they say. Most of us abhor people going unpunished for their crimes, but a realist acknowledges humanity’s inability to discern with absolute assurance who is guilty and who is innocent. Our framers understood that imperfections will always result in imperfect results, but they weighed which side requires the greatest protection, and the balance tipped toward the innocent.
I suspect that if our forefathers could speak to us today, they would answer these complainers with the idiomatic proverb that “You can’t have your cake and eat it too.”
In other words, protecting the innocent demands protections for the accused, and that will inevitably result in some guilty people going unpunished.
Notwithstanding the ugliness of the thought of sending an innocent person to the gallows or to a prison for life, Americans have a dilemmatic reaction if given the choice of sending an innocent person to prison or setting free a guilty person. When asked which of the following scenarios would be worse: 1) to have 20,000 innocent people in prison or; 2) to have 20,000 people who are guilty but not in prison, a survey found that as many as 40% of Americans said they would prefer the innocent imprisoned over the guilty set free.
While neither scenario is good, it’s disturbing that so many think the lesser of the two evils is hanging innocent people. The survey isn’t explicit on why, but I suspect that if it were them hung out to dry their opinion would be different.
I know this to be the case because I’ve had former critics of my sentencing practices who called me “lenient” later stand before me in court with their teenage kid begging for mercy, which translates in their language to “please just slap my son on the wrist.”
It is ironic how quickly folks draw conclusions when it’s not their ox getting gored, or should I say their child getting sentenced.
Here lies the rub. Most people never worry about the innocent being accused wrongly because it’s something they have never confronted and believe it can’t happen to them. Others are victims of crime, know someone who has been a victim or are bombarded every day by news about crime around them.
Safety becomes more important than liberty for these people because becoming a victim of a criminal act is more likely than becoming a victim of the justice system.
And so many Americans will sacrifice liberty if it means a more efficient criminal justice system that can punish more criminals. Efficiency is what plea bargaining can offer.
How efficient is plea bargaining?
I do get that plea bargaining serves a utilitarian purpose. It greases the wheels of criminal justice to move faster. Depending on the circumstances, it may benefit both defendants and taxpayers, but I suspect mostly taxpayers.
We justify plea bargaining for the most part because it’s a practical tool.
These utilitarian reasons include saving the taxpayer the time and expense of a trial and sparing both sides the uncertainty of what the jury will decide. The system is saved the trouble and burden of conducting a trial on every crime alleged in the indictment or accusation.
All of us entrenched in the work of criminal justice shudder at the thought of what would happen if plea bargaining disappeared. If we think that the “wheels of justice grind slowly” now (as the adage goes), imagine what it would look like without plea bargaining.
But is plea bargaining as efficient as utilitarians claim?
For example, they claim that bargaining can benefit the defendant by avoiding the time and cost of defending themselves at trial, but this presupposes that most defendants retain or pay for their own attorney and that is not the case. Most defendants are poor and cannot afford an attorney. As required by the U.S. Supreme Court decision in Gideon v. Wainwright, they must be appointed an attorney paid for by the taxpayer. This court-appointed requirement was extended to juvenile defendants four years later in In re Gault.
Plea bargaining is not a kinder and gentler mechanism to help the pockets of defendants because the vast majority don’t have pockets. It’s asinine to pitch the notion that plea bargaining is cost-effective for the defendant. Taxpayers yes, defendants no!
The other argument forwarded by utilitarians is that it can save defendants from harsher sentences. Of course it does, because the very nature of plea bargaining creates the threat of a harsher sentence even if the defendant isn’t deserving of the harsher sentence in the first place. The start of any negotiation involves both sides starting at opposite or extreme ends. For the prosecutor it usually begins with a severe penalty to begin the bargaining exchange. No matter how the deal ends, the prosecutor can point to his or her first offer and claim they saved the defendant so many years from prison.
It’s no different than saying, “I am going to push you off the boat just so I can jump in to say I saved you,” or going to a storewide sale with everything 25% off, after the store marked everything up 25%.
It’s an illusory ploy by prosecutors to gain an upper hand to get a guilty plea from the defendant. They don’t call it bargaining for nothing. In order to get, you got to give, and sometimes what you get is not as much as what you must give up. For some that’s their innocence.
Another argument in favor of plea bargaining is saving taxpayer costs. I must concede this one. The fewer the trials, the fewer the costs.
But where in the Constitution does it say that our liberty interests are subject to a cost-benefit analysis?
It doesn’t, and if it did, we would still be living in the days of Jim Crow and segregation because integration wasn’t exactly inexpensive.
I am not saying that plea bargaining is inappropriate or unethical, but it can yield serious harm to innocent people if we are not careful in how it’s applied. When we fail to consider that constitutional efficiency focuses more on how well we process a plea rather than on how many we process, then it becomes unethical.
It’s at this intersection of justice where judges must decide which road to take. Will it be the road that greases the wheels of justice to move faster or the road that provides greater protections that is slower and less traveled?
Before we look at the road less traveled, we need to explore the road most traveled to understand why the other is less traveled. But more importantly, we need to look at why we need to merge the two roads and how merging will enhance constitutional protections, save lives and promote public safety.