Here’s a not-so-modest proposal that will reduce the prison population, improve the performance of the criminal justice system, and yield greater confidence in the administration of what we call, with no apparent sense of irony, "justice." Ready? Eliminate plea bargaining.
If you’re still reading – I could almost hear the "pshaw" of jurists such as New Haven’s Patrick Clifford, who, of course, doesn’t read this column, but yet becomes aware of its contents by a form of judicial osmosis – here’s why plea bargaining is really a form of social cancer.
Jurists like to whinny about the "vanishing trial," yet we are systematically killing trial on the civil side by way of pre-trial motions; on the criminal side, defendants are overcharged, terrified and, often, all but extorted to take a plea. If trial by jury is disappearing, that is because we want to kill it. We do so at the loss of a sense of legitimacy, that odd form of alchemy in which mere power is transformed into a sense of authority.
The overwhelming majority of criminal cases are resolved by way of guilty pleas, whether the defendant is, in fact, guilty or not. The law has erected elaborate charades to make it possible to plead guilty to crimes you never committed. An Alford plea, by way of example, permits a defendant to plead guilty to a crime without admitting he or she committed the crime. Is that justice?
Not long ago, a client of mine read in the newspaper the statutory maximum he faced if convicted of a crime he was charged with, but did not commit. I explained that almost no one gets the statutory maximum. Yet there it was in cold type: He "faced" decades away from his loved ones. He wanted to plead to something, anything, to avoid what he was "facing."
There is no doubt in my mind that had the man gone to trial he would have beaten the case. Indeed, there is little doubt that we would have persuaded a judge to dismiss significant parts of the case at the close of the state’s evidence. The prosecution was a threadbare farce. But defendants in criminal cases lack what is so readily available in civil cases: the ability to conduct some limited discovery and then move for summary judgment. A criminal defendant has to roll the dice at trial, gambling his or her liberty against the sufficiency of the evidence.
Smart prosecutors know this. These same prosecutors also control the decision on what charges to file against a defendant. No judge supervises these charging decisions. Hence, the incentive for prosecutors to overcharge, publish the warrant or indictment, and then let the press scare the wits out of a defendant by reporting on the worst that could possibly happen.
If we eliminated plea bargain and required prosecutors to try the cases they charge, they would be more parsimonious in the charges they bring. It’s one thing to accuse, another to convict.
Wouldn’t that result in fewer prosecutions in a world of scarce resources? Yes. And who’s to say that would be a bad thing. Prisons are one of the few growth sectors in a bad economy, and we incarcerate, in this the Land of the Free, a higher percentage of our population than any other nation on Earth. When everything is a crime, everyone "faces" time. That’s wrong.
Forcing cases to trial could yield a greater sense of legitimacy in the community at large. Let juries nullify the law when they think it is misapplied. If we are trying to hold people accountable for the sake of the community, then why silence the community when it matters most?
Plea bargaining always takes place in private discussions either with the judge, as is done in the state system in Connecticut, or between the parties, as is done in the federal system. What is presented in open court is the result of a secret process. We talk about transparency in the criminal justice system, but then hide the manner and means by which most cases are resolved from the public. No wonder the criminal justice system is regarded by many as the moral equivalent of an alien power in our midst.
The prosecution of a person for a crime should be an extraordinary event in the life of a healthy society. Yet today prosecutions are routine, the prisons are full, we are feeding upon ourselves and we wonder why trials, once the showpiece of our criminal justice system are vanishing.
Why not place a moratorium on plea bargaining for a decade or so. My hunch is that we would be no worse off that we are now. In fact, it might yield an improvement in the form of fewer prisons, more confidence in the criminal justice system, and greater accountability by prosecutors.
Think about it. Don’t just reject this altogether immodest proposal because it is at odds with that we do now. What we’re doing now isn’t working. It’s time for radical change.
Reprinted courtesy of the Connecticut Law Tribune.
In the end, the choice of whether to take a criminal case to trial or to enter into a plea agreement with the government belongs to the client, and to the client alone. There are times in which a client rejects his lawyer’s advice, goes to trial, and is badly hurt. Then there are times in which a client decides to avoid the risk of trying a case his lawyer thinks he should have tried, and could have won. Counseling a client on whether to enter a plea is bitter work, call it the devil’s work. I do the devil’s work.
A client of mine entered a guilty plea in federal court this week. His name is Jason Zullo. He was an East Haven police officer when federal law enforcement officers burst into his home with an arrest warrant and guns drawn early one morning, holding his wife at gunpoint as they demanded entry into the children’s bedroom. His wife’s eyes still well up in tears when she describes it now, many months later.
I should have taken delight in the prospect of the government feeding on local law enforcement officers. I’ve put kids through college on the money I’ve earned suing police officers in federal court. But the prosecution of Jason Zullo sickened me; it sickens me still.
Jason was tried with conspiring to violate the rights of East Haven residents. The prosecution had its origins in the overheated imaginings of Yale law students. They decided to take the battle for immigration reform to the courts, and ended up persuading the Justice Department to sign on.
Jason and several of his colleagues were called “bullies with badges” at a press conference attended by Justice Department hotshots. They were accused of preying upon illegal immigrants, subjecting them to stops without justification, using unreasonable force against them, and otherwise engaging in discriminatory application of the law. The case made national news.
When I read the indictment, the formal document charging Jason and three colleagues with federal crimes, I was stunned. Far from some vast conspiracy targeting illegal immigrants, I read about garden variety police stops of folks driving cars with illegal license plates, the search of a store believed to be selling illegal license plates, and some minor dust ups with folks in a lock up who were, undoubtedly, unhappy to find themselves in police custody. If these allegations amounted to federal crimes, there is not a police officer in the state who can rest secure in the belief that he or she can do the job of policing without facing a stretch in federal prison.
The prosecution of the East Haven police officers radicalized me, all at once transforming me into a defender of cops. I wanted to try this case to a jury of twelve, to tell the world that the conduct charged here was routine, that this criminal case was the wrong place to play out the highly charged debate on immigration reform.
But my client decided to enter a guilty plea to one count of filing a false or misleading police report, a felony that may well land him in prison when he is sentenced early next year. He did not plead guilty to illegal entry into a store. He did not plead guilty to stopping illegal immigrants because of the color of their skin. He did not plead guilty to beating up an arrestee in a holding cell. He never contemplated entering pleas to such counts. He denies to this day that such things occurred.
So to what did he plead guilty? He did not include in a police report that his car jarred a motorcycle in a chase through East Haven, a chase in which the operator of the motorcycle saw the police officer, knew the officer wanted to stop him, and then tried to evade the officer so as not to be issued a summons for operating an unregistered motor vehicle. The motorcycle operator was a white guy. So, too, was the victim in the other case yielding a guilty plea in this case. Sergeant John Miller entered a plea to using unreasonable force against another white guy. Both alleged victims, it turns out, where white Italian males.
None of this stopped the Justice Department from declaring a victory in this case in one of its ubiquitous press releases. But how do you call this case a victory when the scalp you bring home from battle looks nothing like the trophy you eyed when war was declared?
I respect Jason Zullo’s decision to plead guilty. He wanted to avoid the risk of trial. He wants to be home to raise his family. A short stay in prison seemed best to him. He can be home for his kids. Why risk a long, crippling sentence?
But I am still outraged by this particular federal prosecution and disappointed by Jason’s plea. A jury ought to hear both sides of this case. Giving federal prosecutors a license to declare open season on cops isn’t going to make Connecticut a better place to live. Who is going to protect cops from bullies with briefcases?
UPDATE: SAD BUT TRUE
Sad But True:
A good friend of mine is a New Haven Police Officer. He reports the following incident this morning:
He stopped a motorist for speeding on one of New Haven's main streets. After he stopped the driver, he saw the man was Hispanic. He chose not to issue a citation for speeding, but, instead, to issue a warning. Although he felt confident in his decision to stop the man, and he was confident the man was speeding, he feared federal prosecutors might second-guess his decision to stop a person of Hispanic descent. What if the man claimed racial profiling? Would the federal government open a criminal file, and accuse the officer of violating the man's civil rights?
He didn't want to end up like Jason Zullo, or the other cops in East Haven.
Reprinted Journal Register newspapers.