Commentary: The Role of Plea Bargaining in Wrongful Convictions

“Ideally, yes,” she said.  “But OUR criminal justice system is not ideal.  Our system is FLAWED.”

She gave the example of the Alford Plea, known because Henry Alford was accused of murder and faced the death penalty, where enough evidence existed that could possibly have been enough to cause a jury to convict him.

“The evidence was strong but Henry said he was innocent.  Henry, however, pled guilty to a charge of 2^nd degree murder in order to avoid the death penalty,” she said.  “Of course, I don’t know as I stand here today whether or not Henry was actually innocent.  However, I’ve been a criminal defense attorney in Yolo County since 1998, and I truly believe that innocent people have taken pleas because they felt they were in a situation like Henry’s.”

She said, “Just because the system allows the innocent to plead guilty doesn’t mean that we should tolerate a system that makes it easy to do so…  And that’s the type of system we currently have.”

I have been reminded of these remarks twice this weekend.

First on Friday, I went to the Commonwealth Club in San Francisco and saw Raymond Bonner (who began as a law professor at UC Davis and ended up a foreign correspondent for the New York Times, covering El Salvador in the 1980s) interviewed about his new book which chronicled the murder trial of Edward Lee Elmore, who served 30 years in prison for a murder he did not commit.

Mr. Elmore was finally released last week, after taking an Alford Plea despite overwhelming evidence of his innocence, in order for him to be released from prison with time served.

That was followed by an op-ed in the New York Times by Michelle Alexander, who formerly worked with the ACLU in Northern California and authored the penetrating book, The New Jim Crow, highlighting how drug laws have created a new segregation and legalized discrimination.

She quotes from Susan Burton, who had recently posed a question, “What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plead out? What if they all insisted on their Sixth Amendment right to trial? Couldn’t we bring the whole system to a halt just like that?”

Ms. Alexander writes, “I was stunned by Susan’s question about plea bargains because she – of all people – knows the risks involved in forcing prosecutors to make cases against people who have been charged with crimes”

She then gets to the crux of her point, “The Bill of Rights guarantees the accused basic safeguards, including the right to be informed of charges against them, to an impartial, fair and speedy jury trial, to cross-examine witnesses and to the assistance of counsel.”

However, she adds, “in this era of mass incarceration – when our nation’s prison population has quintupled in a few decades, partly as a result of the war on drugs and the “get tough” movement – these rights are, for the overwhelming majority of people hauled into courtrooms across America, theoretical.”

More than 90 percent of criminal cases never get before a jury and the vast majority of people charged with crimes will “forfeit their constitutional rights and plead guilty.”

“The truth is that government officials have deliberately engineered the system to ensure that the jury trial system established by the Constitution is seldom used,” said Timothy Lynch, director of the criminal justice project at the libertarian think tank, the Cato Institute.

Ms. Alexander argues: “In the race to incarcerate, politicians champion stiff sentences for nearly all crimes, including harsh mandatory minimum sentences and three-strikes laws; the result is a dramatic power shift, from judges to prosecutors.”

She continues, “The system of mass incarceration depends almost entirely on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised his constitutional rights, there would not be enough judges, lawyers or prison cells to deal with the ensuing tsunami of litigation.”

Moreover she points out that not everyone would even need to participate in an organized revolt.  Ms. Alexander cites legal scholar Angela J. Davis, who noted, “If the number of people exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos.”

“Such chaos would force mass incarceration to the top of the agenda for politicians and policy makers, leaving them only two viable options: sharply scale back the number of criminal cases filed (for drug possession, for example) or amend the Constitution (or eviscerate it by judicial ’emergency’ fiat [a binding separation]),” Michelle Alexander writes.  “Either action would create a crisis and the system would crash – it could no longer function as it had before. Mass protest would force a public conversation that, to date, we have been content to avoid.”

“As a mother myself, I don’t think there’s anything I wouldn’t plead guilty to if a prosecutor told me that accepting a plea was the only way to get home to my children,” Ms. Alexander said in her conversation with Susan. “I truly can’t imagine risking life imprisonment, so how can I urge others to take that risk – even if it would send shock waves through a fundamentally immoral and unjust system?”

Susan, silent for a while, replied: “I’m not saying we should do it. I’m saying we ought to know that it’s an option. People should understand that simply exercising their rights would shake the foundations of our justice system which works only so long as we accept its terms. As you know, another brutal system of racial and social control once prevailed in this country, and it never would have ended if some people weren’t willing to risk their lives. It would be nice if reasoned argument would do, but as we’ve seen that’s just not the case. So maybe, just maybe, if we truly want to end this system, some of us will have to risk our lives.”

It is an interesting possibility.

—David M. Greenwald reporting