Sunday, March 1, 2015
When being rational is intolerable
Jefferson described trial by jury as “the only anchor ever yet imagined by man, by which government can be held to the principles of its constitution.” It is a bulwark against tyranny – speedy public trial by a jury of one’s peers limits the opportunity for abuse which thrives behind closed doors, in private bargaining, absent independent oversight, when the power of the state is directed at a single individual.
The US is unique among other liberal democracies to have embraced plea bargaining as the principal means of settling criminal cases, and with such fervor. By 2013 97% of felony cases at the federal level were settled by plea agreements. That means only 3% of felony cases ever go to trial. Recent statistics indicate that the average sentence for a plea deal is 5.6 years, while the average sentence for conviction at trial on the same charge is 16 years. Federal data from 2004 indicates the likelihood of conviction at trial averages at 68% (with a low of 45% for assault, 70% for murder, and high of 74% for vehicle theft).
From the point of view of the prosecutor, securing a plea arrangement is ideal. Plea arrangements typically trade a lesser charge than the evidence might support in exchange for a guilty plea from the accused. This ensures that the guilty is punished for their crime, but spares the state the costs of trial. Typically, the longer an accused refuses a plea offer, the more severe the charge becomes. So, it is in the interest of the accused to plead guilty earlier rather than later.
From the point of view of the accused, the offer of a plea may also be ideal, a release from the burden of having to fight a conviction she is very likely to lose. Pleading guilty to a lesser charge is preferable to risking a mandatory minimum sentence on a more severe charge. She has the burden of serving some time, but not as much as would be the case were she to lose at trial under mandatory sentencing. For the guilty accused, this can be very sweet indeed.
What if the accused is factually innocent?
The US criminal justice system has become such that even innocent accused are irrational not to plead guilty to a crime they did not commit. The risk of trial is great, especially given the power of the prosecutor to determine the charge, recommend bail and at what cost, and to determine the direction of the investigation. Public defenders, what most felony accused rely upon for representation, are at a serious disadvantage in all regards. Death row exonerations indicate a false conviction rate of 4.1% at trial. Unlike convictions at trial, plea bargains are rarely appealed – the basis for an appeal being moot in the presence of a “confession” in a plea agreement. However, according to the Innocence Project, “more than 1 out of 4 people wrongfully convicted but later exonerated by DNA evidence made a false confession or incriminating statement.” With a prison population of over 2.2 million, even a conservative estimate of 3% indicates 66,000 innocent people are imprisoned for crimes they did not commit.
For the innocent accused, she knows the risk of going to trial is great. She knows if she is convicted at trial, her sentence would likely be triple the sentence offered in a plea, more if she takes a plea early enough. She also knows that, under mandatory sentencing, the judge has no room to mitigate the sentence. She also knows that the vast majority of convictions come on circumstantial evidence and that, if there is a witness, he is more than likely to misidentify her as the guilty party. If the accused doesn’t know this, her attorney certainly does. She knows that if she opts for a trial, it will be months (sometimes years) away, time which she will spend in jail awaiting trial, or if she can afford it, on bail.
Surely it cannot be reasonable for a society to accept false guilty pleas at this rate, if at all.
For one thing, it means that the factually guilty party has not been caught, convicted and punished. For every crime settled by plea agreement of an innocent, there is a crime unsolved and criminal unpunished and undeterred.
For another, it raises questions about the fairness of the criminal justice system, making a myth of the idea of “having one’s day in court.” If the risk of trial is such as to render it in one’s rational self-interest to plead guilty, then that day in court comes at a huge personal and financial cost and great risk. That seems not to have been the idea behind the 6th Amendment guarantee of a speedy public trial by peers.
Further, too many members of the community believe themselves immune to this problem. But, by the most conservative estimate the prisons are filled with individuals who once believed the same about themselves. It is too easy to stick one’s head in the sand in the belief that only bad people are arrested in the first place, so if the accused isn’t guilty of this crime, then they are surely guilty of something else. Best to have them off the streets regardless. This belief might soothe, until the police and prosecutor knock at one’s own door.
There is something fundamentally wrong about this. The structure of the criminal justice system in the US renders it rational to do what is completely unreasonable to do. It cannot be reasonable, nor tolerable, to expect someone to profess guilt when they are innocent simply to avoid a worse outcome. And, when it is… well, that is the clearest indication that there is something gravely wrong with the institution and with the society which tolerates it.
Department of Philosophy
 Jefferson, “Letter to Thomas Paine, 11 July 1789”, in The Writings of Thomas Jefferson, vol. III, Ed. H.A. Washington, New York: 1859, p. 71; available at https://books.google.com/books?id=PRF-1pqY0I0C&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false.
 Innocence Project, “Causes of Wrongful Convictions: False Confessions or Admissions”, accessed Mar 1, 2015. See more at: http://www.innocenceproject.org/causes-wrongful-conviction/false-confessions-or-admissions#sthash.oQ82Dbsw.dpuf