February 16, 2015

Fair Trials International endeavors to investigate violations of the criminal justice system from around the world. Here, our Law Reform intern, Michelle Coleman, explains the plea bargain system in the US and how it not only may be sending innocent people to prison, but also allowing prosecutorial abuse, and abuses during the investigation process to go unchecked.

Having trained in the U.S. legal system and practiced as a public defender, I am familiar with plea bargaining – I bargained on behalf of my clients every day. It is seen as an essential part of the US criminal justice system and, in fact, at the federal level about 97 percent of cases that are not dismissed result in a guilty plea and at the state level that number is about 95 percent.

Everyone would like to think that the police have caught the right person and that an innocent person would never plead guilty. The truth is, however, sometimes innocent people are charged with crimes and sometimes they plead guilty. In fact, conservative estimates state that at least 20,000 people are in prison for crimes they did not commit. Why would an innocent person ever plead guilty? Why would someone voluntarily trade their innocence for punishment and a criminal record?

An interesting exchange recently took place in the New York Times Review of Books sheds some light on these issues. Partially explaining why an innocent person might plead guilty is the fact that the prosecutors have all the power in the plea bargaining process. Defendants can try to negotiate, but what can they really offer in exchange? An innocent defendant would have absolutely nothing to offer at all. If the defendant does not accept what the prosecutor offers they will be charged with the highest ‘provable’ offence at trial, and may face mandatory sentences that are much higher than the pre-trial offer. Faced with the choice between a relatively lower risk plea and the high risk of trial, often defendants plead guilty knowing that if they are convicted at trial they will fare much worse. The entire process is done at the prosecutor’s will, behind closed doors, without an oversight mechanism allowing prosecutorial abuse, and abuses during the investigation process, to go unchecked.

The pressures of trial and in making a choice between accepting an offer and going to trial are difficult for every defendant. Probably the most extreme examples are when the defendant could face the death penalty after trial is made a lower pre-trial offer. However, the pressures are present and the choices extreme even in non-violent and more pedestrian cases. Aaron Swartz, a young internet activist, with no prior convictions, was charged with several counts of wire fraud after downloading articles. The prosecutor offered him the choice between going to trial where he could face over thirty years in prison or taking a plea agreement to six months in jail.  This choice, and the pressures of the trial process, contributed to his committing suicide.

The judge, prosecutor, and defence attorney all have a role to play in ensuring that guilty pleas are not coerced. In practice, however, it may be impossible to determine whether a defendant is pleading guilty because they are guilty or whether they are acting out of fear. The choice between risking conviction at trial and pleading guilty is extremely difficult and for some, the consequences of having to choose between the two extremes can be devastating. To minimise the risk of innocent people pleading guilty, a more level negotiation table with greater transparency is necessary.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on 020 7822 2370 or 07950 849 851.

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