Driving a Hard Bargain

Driving a Hard Bargain

I remember a guy I met when I lived at the New Hampshire State Prison. He was from the Dominican Republic and didn’t speak a word of English. He was in on a drug charge and had taken a plea bargain in exchange for a short sentence – six months, he thought - and then deportation. It wasn’t until he had been in prison for a week or so that someone who could read English and speak Spanish finally looked over his paperwork and told him the truth. He had been sentenced to 3 ½ to 7 years.

Hadn’t he had a translator? we asked.

Well, yes, there had been someone in court who translated the judge’s questions – like, did he understand he was giving up his right to a trial, and so on. Si, si, he had said. His public defender didn’t speak Spanish. Somehow the actual details of the sentence he agreed to had been lost in translation. Too late, he learned that he had given up his right to a jury trial in exchange for a prison sentence seven times longer than what he thought he was getting.

Most prisoners in both state and federal prisons get there through pleas. It’s a devil’s bargain. Give up your rights, plead guilty, save the state the cost of a trial, and they’ll cut you a break.  Stand on your rights, don’t plead guilty and you’ll be punished for your obstinacy by spending a lot longer behind bars. The simple fact is the state can’t afford to put on trial everyone accused of a crime. Pleas save money. But pleas are often complex things, arrived at through negotiations between prosecutors and defense lawyers. There’s a lot of horse trading involved - we’ll give you this, you give us that. Without the help of a competent lawyer, your future is in danger. That grim fact is behind a pair of 5 to 4 decisions last week by the United States Supreme Court, Missouri v. Frye and Lafler v. Cooper.

The Supreme Court has recognized that the need for a competent lawyer at trial is a right guaranteed by the Sixth Amendment of the Constitution. In the 1982 case, Strickland v. Washington, the Court laid out a two-part test for ineffective assistance of counsel. A defendant must show that his lawyer's performance fell below an objective standard of reasonableness, and that his lawyer’s poor performance gives rise to a reasonable probability that the result of the trial, or the sentencing hearing, or the appeal would have been different if his lawyer had performed better.

Notice those three situations: trial, sentencing, appeal. But, as the Court observed, in the Lafler case, “the simple reality [is] that 97 percent of federal con­victions and 94 percent of state convictions are the result of guilty pleas.” Plea bargains, not jury trials, are the essence of America’s criminal jus­tice system.  If the Sixth Amendment requirement of adequate assistance of counsel is to mean anything, it must also include the plea bargaining process.

The Court’s decisions last week were objected to by Justice Scalia, who was joined by Chief Justice Roberts and Justices Thomas and Alito. In his dissent Justice Scalia points out there is no constitutional right to a fair plea bargain. In fact, it is doubtful that the Framers of the Constitution ever even considered the idea of bargaining charges and punishments in exchange for guilty pleas. That continues to be true in much of the world. Scalia observes, “In many—perhaps most—countries of the world, American style plea bargaining is forbidden in cases as serious as [attempted murder], even for the purpose of obtaining testimony that enables conviction of a greater malefactor, much less for the purpose of sparing the expense of trial. In Europe, many countries adhere to what they aptly call the “legality principle” by requiring prosecutors to charge all prosecutable offenses, which is typically incompatible with the practice of charge-bargaining. Such a system reflects an admirable belief that the law is the law, and those who break it should pay the penalty provided.

In the United States, we have plea bargaining a-plenty, but until today it has been regarded as a necessary evil. It presents grave risks of prosecutorial overcharging that  effectively compels an innocent defendant to avoid massive risk by pleading guilty to a lesser offense; and for guilty defendants it often—perhaps usually—results in a sentence well below what the law prescribes for the actual crime. But even so, we accept plea bargaining because many believe that without it our long and expensive process of criminal trial could not sustain the burden imposed on it, and our system of criminal justice would grind to a halt.”

In Justice Scalia’s utopia of original intent, prosecutors only charge what they can prove, everyone gets a jury trial, and the guilty are given whatever sentence the law prescribes. If only this were reality. In the real America, the plea bargain process is designed not so much to dispense justice as to dispose of cases. And that is unlikely to change because the American justice system is lubricated by the oil of a half century of tough-on-crime policies arising from political demagoguery calling for more arrests, more convictions, and ever more punishment.

In the recent Court decisions, pragmatism is pitted against idealism. The majority attempt to maintain a semblance of justice within the present system by requiring effective assistance of counsel for the 95% of cases that end in pleas. The minority longs for a return to the rationality of an earlier time when “the law is the law, and those who break it should pay the penalty provided.” But such a return cannot happen without a groundswell change in all aspects of the criminal justice system - not least of all in the methods and degree of punishments exacted.  Remember, extended incarceration as punishment did not even exist in the Framer’s America.  Today, in America, 750 out of every 100,000 persons are in prison. Contrast that with Germany - Justice Scalia’s European example – where there are just 93 prisoners per 100,000. In Germany, as in most of Europe, extended incarceration is used primarily for those with violent or egregious crimes who cannot safely live under supervision in society.  Without a more rational approach to crime and punishment in America, the plea bargaining process is all that stands between our system of justice and its collapse from the sheer number of cases and prisoners.