Vol. 76/No. 14      April 9, 2012

The vast majority of workers behind bars today are put there through a process of plea bargaining in which prosecutors offer a “deal”: plead guilty to lesser charges carrying lesser sentences than you would risk having imposed in a trial. The potential sentence if convicted by trial is often so harsh, and the difference between it and a plea bargain offer so great, that for working-class defendants the decision on how to plead is based solely on avoiding the risk. Innocent until proven guilty has no meaning.

The Supreme Court decisions, praised up and down by liberal commentators and politicians, promises defendants the “right” to competent counsel in plea negotiations, the “right” to be informed of plea bargain deals and the “opportunity” to accept them.

“Criminal justice today is for the most part a system of pleas, not a system of trials,” wrote Justice Anthony Kennedy in the majority opinion. Plea bargaining “is not some adjunct to the criminal justice system; it is the criminal justice system.”

Pointing to the fact that 97 percent of federal convictions and 94 percent of state convictions are the result of guilty pleas, Kennedy states, “The negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.”

Kennedy joined four other justices—Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan—described in the media as liberal members of the court in issuing these rulings.

In one of the cases, Galin Frye faced a felony charge from the state of Missouri for driving with a revoked license. The prosecutor offered to reduce the charge to a misdemeanor and recommend a 90-day sentence with a guilty plea, a deal Frye’s lawyer never told him about. A judge ended up sentencing him to three years.

The court condemned the attorney’s conduct. But even if the defendant had known about it, “the prosecution would have been able to withdraw it right up to the point that his guilty plea pursuant to the bargain was accepted,” wrote Justice Antonin Scalia in a dissenting opinion.

The second case, arising under the 1996 Anti-Terrorism and Death Penalty Act, charged Anthony Cooper, who shot a woman in her buttock and thighs, with assault with intent to murder and three other charges. Under advice from his lawyer he rejected a prosecutor’s offer to plead guilty to two of the four charges and accept four to seven years imprisonment. After being convicted on all four charges, the judge imposed a 15- to 30-year sentence on Cooper based on a mandatory minimum sentencing guidelines.

Plea bargaining “conserve[s] valuable prosecutorial resources,” Kennedy wrote and has “become so central to today’s criminal justice system that defense counsel must meet responsibilities in the plea bargain process to render the adequate assistance of counsel that the Sixth Amendment requires at critical stages of the criminal process.”

The Sixth amendment to the U.S. Constitution, in addition to guaranteeing the right to an attorney, upholds one’s right to trial by jury. It states, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.”

The Supreme Court ruling “opens a whole new field of constitutionalized criminal procedure: plea-bargaining law,” wrote Scalia. “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.”

In federal district courts in 2010 there was one acquittal for every 212 guilty pleas or trial convictions. Thirty years ago, the ratio was one for every 22, reported the New York Times.

The expanding number of state and federal mandatory sentencing laws and harsher penalties for those convicted under a growing number of felony statutes further empower prosecutors to bargain for guilty pleas.

Laws enacted by Congress now apply mandatory minimum penalties to new areas, including drug possession, firearms, identity theft, and child sex offenses. Their use has boosted the U.S. prison population to nearly 2.5 million, the highest rate in the world.

Blacks and Latinos account for 70 percent of those sentenced under mandatory minimum laws. Three-quarters of the convictions are for drug offenses, with nearly 50 percent facing a mandatory 10-year penalty, according to an October 2011 U.S. Sentencing Commission report.

Just how these laws work is illustrated in the case of Orville Wollard in Polk County, Fla. He “fired his registered handgun into his living room wall to scare his daughter’s boyfriend out of the house after he repeatedly threatened his family,” the Times reported.

Wollard said he was protecting his family. No one was injured. He rejected a plea offer of five years of felony probation. In 2009 he was convicted for aggravated assault with a firearm and sentenced to 20 years, based on a mandatory-minimum law.  
 
 
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