Justice Matters: Plea Bargains Are Ubiquitous. But Are They Un-American?

San Francisco Public Defender Jeff Adachi in San Francisco in April
San Francisco Public Defender Jeff Adachi in San Francisco in April

By Jeff Adachi

Imagine you’re arrested for a crime you didn’t commit. You can’t afford bail. While you panic in your jail cell, your children are at home alone and your boss wants to know why you can’t come to work.

You can plead guilty and get out today with probation. Or you can try to prove your innocence at trial — after waiting months in jail.

Which would you choose?

Welcome to the plea agreement. It can be a Faustian bargain, but it’s also a constant presence in our criminal justice system. Despite television courtroom dramas filled with on-the-stand revelations and surprise witnesses, trials are extremely uncommon.

Instead, most criminal cases live and die in the dull world of paperwork and closed-door negotiations. More than 95 percent of cases resolve through plea bargains. The accused person forfeits his or her constitutional right to trial and agrees to plead guilty. In exchange, prosecutors drop counts, or reduce charges. And the plea bargaining mill chugs along.

Plea agreements are often characterized as a necessary evil, providing a measure of efficiency and cost-savings for our clogged courts.

But it took a recent trip to Japan to remind me of a simple fact: When plea bargains dominate the criminal justice landscape, our constitutional protections shrink in importance. And that is fundamentally un-American.

Japan is halfway around the world but poles apart from the U.S. when it comes to resolving criminal cases. Plea bargaining is forbidden by Japanese law, meaning each case, from shoplifting to murder, goes to trial. It is a luxury borne of a low crime and incarceration rate. For every 100,000 people jailed in the U.S., only 701 are locked up in Japan.

But all that may be changing. Today, Japan is at a fork in the road, its national congress poised to consider legislation that would allow plea agreements.

Japan is considering two types of plea bargains. The first allows people to confess to crimes or implicate others in exchange for prosecutors dropping the charges against them. Such deals would be permitted in cases involving drugs or financial crimes, but not in crimes of violence. In the second type, a witness could make a confession in a trial in exchange for immunity from prosecution.

I traveled to Tokyo to discuss the pros and cons of the plea bargain with the Japan Federation of Bar Associations. I told the assembled criminal defense lawyers and academics that a system based on plea bargaining often coerces innocent people to plead guilty rather than face a heavy prison sentence if convicted at trial. I then had to acknowledge the reality that plea bargaining was so entwined that we would likely continue our dependence on it.

Describing our system out of its usual frame of reference made it sound preposterous. We routinely offer millions of Americans an excruciating choice: Plead guilty, or risk everything you hold dear.

Naturally, the audience had questions. Would people be forced to accept deals without ever knowing the strength or weakness of the case against them? In Japan, there is no requirement that the state provide accused people with the evidence against them. Would people falsely confess to reduce their punishment?

I had to tell them the truth: that plea bargaining absolutely contributes to false confessions and unjust convictions in the United States. According to the Innocence Project, of the 227 wrongful convictions overturned by DNA, 12 defendants pleaded guilty to crimes they didn’t commit. Virtually every time, they did so to avoid the threat of longer sentences — or in some cases, the death penalty.

The plea bargaining system is taking center stage in Japan’s criminal justice debate. In the U.S., it’s a discussion that’s long overdue. It’s time for us to break from our resigned acceptance of coerced guilty pleas and unjust convictions as a necessary evil in an overburdened system. Our constitutional rights are worthy of protection — and that includes the Sixth Amendment right to trial.

Jeff Adachi is the elected Public Defender of San Francisco. His public affairs program, Justice Matters, can be seen on SFGOV-TV or at sfjusticematters.com.

About The Author

Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

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14 Comments

  1. zaqzaq

    “We routinely offer millions of Americans an excruciating choice: Plead guilty, or risk everything you hold dear.”

    This sounds like a rather large exaggeration that millions are risking everything they hold dear where the vast majority of cases are low level misdemeanors.  How many misdemeanor defendants are actually  in jail when they enter into their plea bargains?  Especially in this county.  With Prop 47 the number of felonies has been greatly reduced.  If 95% of the cases in this country are resolved using plea bargains I strongly suspect that we as taxpayers would not want to foot the bill for all the cases going to trial.  It is just not going to happen.  It also ignores the fact that the majority of those entering into bargains are benefiting through some form of reduced sentence which would not exist if they went to trial.  It probably has something to do with taking responsibility for your illegal conduct and moving forward instead of wasting everyone’s time with a trial.

        1. Davis Progressive

          “We routinely offer millions of Americans an excruciating choice: Plead guilty, or risk everything you hold dear.”

          it’s pretty obvious to me what he’s referring to.  one of the reasons da’s overcharge cases is to compel clients to cop a plea.  that’s what happened in the brian banks case too.  something like 95-97 percent of all felony cases get plead out rather than go to trial.

          worth a read: why innocent people plead guilty

          In actuality, our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight. The outcome is very largely determined by the prosecutor alone.

  2. Tia Will

    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, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.[1]

    To Mr. Adachi’s comments, I would add an emphasis on the phrase felt important enough by the authors to be in the first clause….”the right to a speedy and public trial”. Another factor that comes into play is the relative speed of trial vs release via a plea bargain. If you are the support for your family, or the caretaker of children or an elderly individual, a false confession may truly appear to be your best option. Which is, in effect, state induced and sanctioned perjury since the accused is forced into lying about their guilt to avoid the potential of harsher punishment.

    It probably has something to do with taking responsibility for your illegal conduct and moving forward instead of wasting everyone’s time with a trial.”

    Nice deflection. The topic is not those who are guilty. It is those who are innocent who are pressured to falsely admit to guilt, a clear breach of our precept of “innocent until proven guilty”.

    1. David Greenwald

      I remember a few years ago there was a case a of a lady accused of a crime. She had a long history of crimes, but the defense attorney felt like she was probably not guilty of this. However, the punishment for being convicted in a trial would have been 20 years while she was offered a three year plea agreement. So even though the defense attorney felt like she was innocent of this particular crime, she took the plea agreement rather than risk the 20 years.

    2. zaqzaq

      Tia,

      Nice deflection Tia.  The topic was plea bargains in the criminal justice system.  If you want to take the position that plea bargaining should be eliminated the feel free to do so.  It will be costly to implement.  The only people that will be happy with this new system would be the lawyers who will make a killing over this.  Imagine being arrested for a crime that you know you committed and being told that you have to hire an attorney at your own expense (not everyone is eligible for a public defender) at great cost and spend a week participating in a trial instead of going to work.  All because “Tia’s Law” prohibited you from entering into a plea bargain.  By entering into a plea bargain you get a better sentence, do not pay as much for the attorney and get to go to work earning money instead of wasting the week in trial.

      Bail and pleading to the crime are not the only ways to be released from jail.  Judges commonly release defendants from jail without bail as does the jail.

      1. Davis Progressive

        ” If you want to take the position that plea bargaining should be eliminated the feel free to do so.  It will be costly to implement. ”

        it would be interesting to see what would happen if a public defender’s office like adachi for a given length of time, took everything to trial.   they’d never do it because it’s not in a lot of their client’s best interests, but it would bring the system to a halt.

        1. zaqzaq

          It would be interesting.  You indicated that they would not do it because it’s not in a lot of their client’s best interests.  Does this mean that you believe that the plea bargain has a place in the criminal justice system?  Are you only opposed to plea bargains when the defendant is innocent?  How do you determine that the client is innocent?  How would you prevent an innocent person from entering into a plea bargain?

  3. sisterhood

    “Instead, most criminal cases live and die in the dull world of paperwork and closed-door negotiations. More than 95 percent of cases resolve through plea bargains.”

    Thank you very much for this information. This article is very well written imho.

  4. tj

    Going to trial can be a problem in other ways:  Some judges don’t want to be bothered having a trial, so if the defense insists on a trial, the judge rules against every motion the defense makes, rules for everything the prosecution wants, and adds an occasional sarcastic remark to let the jury know it should find the defendant guilty.

    I have seen a staggering number of young men with jobs and families forced to pled to something, even though clearly innocent, so they won’t lose their jobs while they spend day after day in court.

    As one example a defendant may have to wait most of the day for his case to be called, and it’s all for nothing because the DA doesn’t have his paperwork ready, and the defendant will have to come back to spend another day waiting for his case to be called and again the DA isn’t yet ready.  There’s a limit to how many days a young man can inconvenience his employer.

  5. Tia Will

    zaqzaq

    Imagine being arrested for a crime that you know you committed and being told that you have to hire an attorney at your own expense (not everyone is eligible for a public defender) at great cost and spend a week participating in a trial instead of going to work.”

    I think that the heart of the difference in our opinion on the plea bargain is that you remain focused on those who have done the crime ( as you have stated) while I am focused on the impacts on those who have not done the crime, but are essentially being forced by our system into lying and saying that they did just to get back to the life that they never should have been taken from in the first place.

    If the accused has done the crime, I have no problem with a deal being made. If the accused is innocent, I have a great deal of difficulty with the use of coercion to make them say they are guilty. The legal premise of our system is supposed to be “innocent until proven guilty”, therefore the question “How do you determine the client is innocent ?” is irrelevant. You don’t have to. In our system the client is innocent if not yet proven guilty by definition.

    1. zaqzaq

      Tia,

      You fail to identify a process that eliminates this problem.  Who or what entity should make the determination that a defendant did not commit the crime and thus not be allowed to enter into a plea bargain?  How would this work in “Tia’s world”?  How many defendants that committed the crime who enter into a plea bargain later claim that they are innocent? How is this determination made?  Neither you nor anyone else here has proposed a solution for this problem.  Nor has anyone been able to accurately quantify the extent of the problem.  I simply do not believe that millions of innocent (ie those who did not commit the crime) Americans are faced with this choice every year.

  6. sisterhood

    Good morning Vanguard,

    I’m writing today to deeply apologize for any mean things I’ve written about the cops. I’m writing today to apologize for writing that prosecutors get off on prosecuting innocent people for stats, ego, careers.

    I’m writing today to tell you all my heart still aches for my friend who pled to 12 months, reduced to six months, in county jail. I do believe he is innocent of the main charge and he is a good person who was put in an excruciatingly complicated set of circumstances. I support the 6 month plea bargain, and at a certain intellectual level, he does, too. The cops just don’t have the precious time to investigate every subtle nuance of life. Bless them for trying their best.

    I’m writing today to explain my heart hurts for the black people who recentlyl died and who have been imprisoned, some for life. How can our family complain about six months behind bars and loss of money, which is not important, when other people of all races, and salaries, could spend their lives behind bars, or die, due to flaws in this overpopulated stressed out world? But it is still a world full of love and kindness, too.

    I don’t think I’ll  be writing on here very often any longer. Maybe once in a blue moon. Thank you every one for sharing your opinions. Every single opinion has taught me something. David, I wish to applaud your courtwatch work. I wish I had more money to support it.

    Enjoy life and try to fill it with kindness, please.

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