It’s Not Just Prosecutorial Leverage That’s Eroding our Justice System

September 27, 2011
Guest Post

By Inimai M. Chettiar, Policy Counsel at the American Civil Liberties Union. Ms. Chettiar serves as national legislative counsel to achieve smart criminal justice reform in states across the country. She has published scholarship on the use of economic analysis to promote laws advancing social welfare.


Yesterday’s New York Times article highlighting the coercive practice of plea bargaining is not news to advocates of criminal justice reform. Over the last three decades, this country’s excessively long sentencing schemes, inflexible mandatory minimum laws, and arbitrary three-strikes-you’re-out legislation have created a “justice” system in which prosecutors wield ridiculous amounts of leverage to extract guilty pleas from defendants. NYU’s Rachel Barkow sums it up best: “When you have that attitude you penalize people who have the nerve to go to trial.” Almost 100 percent of federal defendants plead guilty.

Our criminal justice system has made a farce of our constitutional rights to a fair trial before our peers, to effective representation by legal counsel, and to equal protection under the law. In a misguided attempt to be "tough on crime," the United States has chosen the irrational tactic of pouring billions of dollars into building more prisons and jails (and arresting and prosecuting more low-level and nonviolent offenses) while cutting back services to help people stay out of them. We increasingly throw people into the system for absurdly petty crimes, incarcerate people presumed innocent even before they have their day in court (often for months or years before trial), provide them with subpar defense resources, ensure that they remain imprisoned in humiliating and inhumane conditions for excessively long periods of time, and then release them with nothing more than the shirts on their backs and criminal records.

All these practices, among others, have led us to become the largest incarcerator in the world.

The sheer volume of how many people the criminal justice system ensnares – often unnecessarily – should worry all Americans. In 1971, police arrested fewer than 500,000 people for drug offenses. Now, law enforcement agents arrest 1.7 million people a year for nonviolent drug offenses – more arrests than for any other crime. Moreover, 64 percent of state prosecutions are for misdemeanors. Given these policing and prosecution priorities, it is no surprise that over half of the people in our prisons are incarcerated for nonviolent offenses.

This high volume of needless arrests and prosecutions strains court, prosecutor, and public defense resources, creating an incentive for all to encourage defendants to plead guilty to crimes – even ones they did not commit. According to the Innocence Project, 25 percent of people nationwide who were later exonerated by DNA evidence for rape and murder convictions had confessed and over 8 percent had pled guilty. Apparently, the threat of receiving an astronomical mandatory prison sentence after a trial is enough to convince even an innocent person to admit guilt to a lesser crime and serve a still lengthy sentence.

Confronted with overwhelming caseloads and more cuts to funding, overworked and underpaid defense attorneys face pressure to plead out cases and move on to the hundreds more on their waiting list. Though more than 75 percent of criminal defendants rely on the public defense system, it is woefully underfunded. Our government simply doesn’t take its obligation to provide indigent defendants with legal representation seriously. It should come as no surprise that the mostly black and brown defendants with court-appointed public defenders are far more likely to plead guilty and receive longer prison sentences than their wealthier, mostly white counterparts.

But it’s not just harsh sentencing laws, selective enforcement and prosecution tactics, and an underfunded public defense system that have created this mess. There is a strong causation between pretrial detention and proclivity to plead guilty. Two-thirds of the people in our jails are held pre-trial, meaning they haven’t even been convicted of a crime. The vast majority of these individuals are detained simply because they cannot afford to pay their bail. Pretrial detention hampers defendants’ ability to contribute to their defense and creates an incentive for defendants to plead guilty in order to limit the amount of additional time spent in often horrific conditions of confinement – even if those defendants would probably be acquitted after a trial.

These are just some of the many reasons that our prisons are exploding disproportionately with poor black and brown people.

There’s also a perverse economic dynamic at play. Plea bargains lower the transaction costs of criminal prosecutions and drive up prison populations. Simply put, plea bargains put more people into prison faster. Not only is it easier for the prosecution to coerce poor black and Latino defendants represented by public defenders and locked up pre-trial to plead guilty than to prove these defendants’ guilt beyond a reasonable doubt to 12 jurors, it’s also cheaper for the court system. However, while the system might save money in the short-term by throwing people into prison quicker, it then wastes billions of dollars keeping them locked up – especially when a lot of these individuals don’t need to or deserve to be in prison. As long as our criminal justice system’s goal is to incarcerate as many people as possible, all actors in the system are incentivized to maximize prosecutions and convictions and to target our most vulnerable populations, i.e. poor people of color.

This week’s Times article exposes only the tip of the iceberg of our pathological criminal justice system. A truly American justice system would understand the economic and social benefits of investing in our communities instead of in their mass incarceration. There is much work to be done to reform such a depraved reality of justice into one that actually gives life to our constitutional rights.