Prison reformers are making a hash of things again. A measure designed to reduce the unfair use of mandatory minimums in Drug Laws may be ignoring, or possibly worsening, one of the biggest problems in the criminal justice system today—the coercion of plea bargains. Antonio Ginatta, of Human Rights Watch, writes in The Hill:
97 percent of federal drug defendants ultimately plead guilty. That surprisingly high rate — it was 78 percent 30 years ago — stems in part from the increased drug enforcement and harsh sentencing laws that began in the ’80s.Under these laws, federal prosecutors can and do threaten defendants with mandatory minimums of five to 10 years if they don’t plead guilty instead of going to trial. Prosecutors can also threaten to double those sentences, or even require mandatory life in prison, depending on whether the defendant has prior drug convictions. […]Under the proposed bill, a new “safety valve” for the 10-year drug mandatory minimum would allow judges to hand down lighter sentences under certain conditions. But prosecutors can keep judges from sentencing under the minimum if they maintain that defendants haven’t fully cooperated. So even with this new safety valve, the prosecutor holds almost all the cards, and can continue to threaten the 10-year mandatory to push people into guilty pleas.[..]Under the Senate bill, prosecutors could seek a 15-year mandatory minimum for one prior drug felony and 25 years for two. In a positive change, the person would actually have had to serve a year in prison for that earlier charge, not just have been convicted of a crime that was punishable with a year or more.But the bill actually expands the types of crimes that could trigger these enhanced penalties — not just drug crimes. A state-level firearm charge or robbery could trigger the enhancement.So threatening big mandatory sentences for a broader range of prior crimes will continue to help prosecutors drive drug defendants to plead guilty.
Both the new proposed law and the one it replaces create a situation in which defendants are punished much more severely if they exercise their right to trial. They do so in part by leaving to prosecutors, not judges, discretion in when to pull the trigger on minimums. As Ginatta wrote, “Our research found that sentences for federal drug defendants who exercise their right to go to trial are three times as long as those who forgo that right.” This strikes us as contrary to the spirit of the Constitution, if not necessarily the case law on what it allows the government to do (we are not lawyers).As we noted the other day, prosecutorial culture plays an enormous and under-appreciated role in the criminal justice and prison crises.Some of the smartest solutions to these problems come from Glenn Harlan Reynolds (a.k.a. Instapundit), in his capacity not as a blogger but as a law professor. In “Ham Sandwich Nation“, one of the (it’s safe to say) few law journal articles to break through to the mainstream, Reynolds argued that:
The “nuclear option” of prosecutorial accountability would involve banning plea bargains. An understanding that every criminal charge filed would have to be either backed up in open court or ignominiously dropped would significantly reduce the incentive to overcharge. It would also drastically reduce the number of criminal convictions achieved by our justice system. But given that America is a world leader in incarceration, it is fair to suggest that this might be not a bug, but a feature.18 Our criminal justice system, as presently practiced, is basically a plea bargain system with actual trials of guilt or innocence a bit of showy froth floating on top.19A less dramatic option might be to require that the prosecution’s plea offers be presented to a jury or judge after a conviction, before sentencing. Judges or jurors might then wonder why they are being asked to sentence a defendant to twenty years without parole when the prosecution was willing to settle for five. Fifteen years in jail seems a rather stiff punishment for making the state undergo the bother of a trial.
When you look at plea coercion, it can seem pretty bleak: a world in which only single digit percentages of defendants get a full and fair trial doesn’t seem much like the America you learn about in civics class. The good news is, there are a lot of smart people out there, including Reynolds, pushing good solutions. Our legislators need to start listening to them.