Opinion: To Plead or Not to Plead

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By Albert Kelly, Guest Columnist

One area ripe for reform is that of plea bargains or plea agreements. I honestly never gave plea bargains much thought until recently when an acquaintance shared an article from The Atlantic magazine entitled “Innocence is Irrelevant” by Emily Yoffe.

It turns out that 94 percent of state level cases and 97 percent of federal cases are the subject of a plea bargain. That means that very few go to trial. It also means there is little need to meet any burden of proof when a simple threat will do.

Of course, you might be thinking that if there’s a problem in need of a fix, it’s for the criminal charged with a serious felony who’s been allowed to plead to a lesser charge.

That may be a concern, but the thing I’m troubled by are the people who end up pleading guilty to an offense they didn’t commit. You might wonder who in their right mind would confess to something they didn’t do and that’s certainly a fair question.

The answer is generally the poor, minorities, the desperate, the uneducated or undereducated; those who are without options or resources to mount a defense. It’s those facing a choice between a few years versus several decades; it is people who know that the weight of the state is great and mostly against them.

Reading District Judge Jed Rakoff’s “Why Innocent People Plead Guilty,” I was surprised to learn that out of the roughly 300 individuals who were proven innocent through the Innocence Project, 10% pled guilty and a joint Michigan/Northwestern Law School project found that out of 1,428 bona fide exonerations since 1989, 10 percent of these pled guilty as well.

Estimates indicate that between 2 percent and 8 percent of convicted felons are actually innocent people who have pled guilty, which means that somewhere between 40,000 and 160,000 innocent people, out of the 2.2 million inmates in the country, thought that the only way to get on with their lives was to “take the deal.”

When it comes to plea bargains, we’re not just talking about felonies, but also misdemeanors, which could include anything from public drunkenness, petty theft, and loitering to DWI, minor assault, and possession of drug paraphernalia. Punishment is less than a year in jail, but a few months can still unravel a life.

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Would your employer hold your job if you had to spend months in jail and what happens to children of single parents? Even without serving jail time, a misdemeanor conviction could cost someone public housing eligibility, various forms of assistance, student loans, and professional licenses.

When it comes to reform, maybe the place to start is with legal representation. On paper, everyone is entitled to the services of an attorney, including for certain misdemeanor charges, but it often doesn’t work out that way. States often cut funding for legal services and what service remains is generally overwhelmed and underfunded.

If you get a public defender, it’s generally little more than face time in a hallway, some horse trading with the prosecutor about your future and a “take-it-or-leave-it” offer. Actual guilt or innocence can be a bit of a nuisance, expensive, and almost beside the point—so you plead.

I think a first step to reform is ensuring proper funding and resources so that all who are charged, whether felony or misdemeanor, can have an adequate defense and representation. I also think that who can actually qualify for help (i.e., eligibility) needs to be expanded as well.

It may also be worth asking what role law schools and their students might play in filling in those gaps and holes in the system, whether serving under a court-appointed attorney or serving in some new neutral mitigation or arbitration role.

The fact that we have innocent people pleading guilty suggests, at the very least, that plea bargains have become weaponized. At worst, it is a betrayal of “innocent until proven guilty,” the state meeting its burden, being judged by one’s peers, and basic fairness.