Plea Bargaining Power: A One-Way Road
In 2012, the Supreme Court of the United States wrote that “plea bargaining…is not some adjunct to the criminal justice system; it is the criminal justice system.”
Unfortunately, Oklahoma’s criminal justice system is no different. The vast number of criminal cases brought under our system of mass incarceration means that plea bargaining is the only way for prosecutors and courts to get through the incredible number of cases on their dockets. The current system of plea bargaining lacks due process, significant fairness, and often the rule of law.
Somil Trivedi, Senior Staff Attorney at the ACLU Criminal Law Reform Project recounted the cases of three individuals who fought for their innocence yet, pleaded guilty because of coercive tactics utilized during the plea bargaining process or refused to do so and felt the full force of a government-funded prosecution. In 2006, Mr. George Alvarez was charged with and convicted of assaulting a correctional officer while awaiting trial on a public intoxication charge. Facing a 10-year mandatory minimum at trial, Mr. Alvarez was scared enough to accept an offer from the state and pleaded guilty. Before accepting the offer, Mr. Alvarez and his defense were unaware of the fact that the prosecution had a video proving his innocence — correctional officers in fact jumped Mr. Alvarez. The prosecution buried it long enough to obtain a guilty plea and Mr. Alvarez was incarcerated for nearly four years before finally being exonerated by the U.S. Supreme Court.
In 2015, Lavette Mayes was charged with aggravated assault after a fight with her mother-in-law. Ms. Lavette sustained injuries in the physical altercation and had no relevant criminal history, yet her bail was set at $250,000 at her bond hearing. Ms. Lavette recounted that, “My life would be reduced to 30 seconds where I could not even speak for myself. The attorney was speaking quickly, but it didn’t seem like he was saying much at all. And all I could do was stand there with my hands behind my back…It was like being at an auction.” Unable to afford the 10% premium, Ms. Lavette effectively lost her two children, lost her job, and developed significant health problems during her fourteen months in jail awaiting trial. After several more bond hearings, her bond was reduced to $95,000 and the Chicago Community Bond Fund helped her pay the deposit for a surety bond. While on bond and electronic ankle monitoring, Ms. Lavette stated that she was forced to take a plea deal. She writes, “I could not stand the thought of returning to jail or being on house arrest for another 14 months—or more—while awaiting my actual trial. I needed to be with my children. They had suffered enough already.”
Tragically, the state of Georgia executed Mr. Ray Cromartie last year for a 1994 murder of a convenience store clerk in Thomasville, near the Georgia-Florida line. Though the murder case against him was weak, prosecutors also alleged Mr. Cromartie shot and wounded another convenience store clerk a few days earlier. Mr. Cromartie maintained his innocence until his last breath and even sought exoneration through multiple requests for DNA testing that would have proven his factual innocence. Unfortunately, the state of Georgia denied every request and the U.S. Supreme Court rejected two appeals without explanation (find both here and here).
Following his execution, Mr. Cromartie’s attorney ripped the state of Georgia for denying the several DNA requests. Attorney Shawn Nolan went on to state that, “It is so sad and frankly outrageous that the state of Georgia executed Ray Cromartie tonight after repeatedly denying his requests for DNA testing that would have proven he did not kill Richard Slysz…[i]n this day and age, where DNA testing is routine, it is shocking that Georgia decided to end this man’s life without allowing us, his attorneys, access to the materials to do these simple tests.” Mr. Nolan added that even the victim’s daughter “repeatedly asked that the state conduct this testing.” Even more glaring, the state of Georgia offered Mr. Cromartie a plea offer under which he would have been eligible for parole after seven years and possibly a free man right now. However, Mr. Cromartie refused to admit guilt and the state sought the death penalty.
These stories echo the horrible reality found in our current criminal justice system of “damned if you do, damned if you don’t.” Often times, criminal defendants are faced with two options: succumb to coercive pretrial tactics such as evidence suppression, the addition of charges/counts, pretrial detention and outrageous bond amounts like Mr. Alvarez and Ms. Mayes, and begrudgingly accept a plea resulting in conviction, incarceration, and lifetime consequences. Or maintain your innocence and assert your constitutional rights, like Mr. Cromartie, and face retaliation from overzealous prosecutors.
This choice known as plea bargaining occurs everyday in the state of Oklahoma and in courts all over America. When only 5% of state and federal felony prosecutions actually proceed to trial, the rest will inevitably plead. Even more concerning is the treatment of minority defendants; historically, minority defendants are treated disproportionately worse and plea offers follow that trend.
It is very important to note that when employed correctly, plea bargaining and pre-trial negotiation can be an acceptable and effective way to resolve criminal cases. However, a fight without fundamental fairness between a state-funded prosecution and the defense should never be acceptable. For instance, the grossly divergent sentences offered to defendants who plead guilty before and after a preliminary hearing, or prior to setting a trial, or use it as a means of resolving the case during pretrial hearings — often referred to as the “trial penalty” — proves just how lacking our system of justice really is.
In nearly every district court that I have practiced in, several tools are utilized by district attorney’s offices that are designed to pressure defendants into taking bad or inadvisable plea deals. Tools include:
Pretrial detention and punitive bond amounts intended to separate defendants from family, jobs, and the community;
Mandatory minimum sentences, sentence enhancements with prior irrelevant convictions, and acceleration/revocation of deferred or suspended sentences that ratchet up trial penalties;
Discovery rules and district attorney policy that allow prosecutors to hide potentially favorable evidence during negotiations - in Oklahoma, the state is required to produce all evidence ten days prior to the beginning of trial.
Virtually zero transparency, which robs defendants, lawyers, and the public of the ability to scrutinize how the deal was negotiated and what information was considered; and
U.S. Supreme Court precedent that allows judges to rubber stamp plea deals without asking the prosecutor a single question about how they came to the resolution of the case — while judges can refuse to accept a negotiated plea, the defendant will have the opportunity to withdraw the guilty plea. Instead, the judge must determine whether the defendant felt coerced, pressured, or forced into accepting the plea agreement and pleading guilty. Often times, defendants begrudgingly respond that they were not.
Effectively, our criminal justice system has been transformed into a courtroom shakedown and it occurs almost entirely behind closed doors, rather than in front of a judge, a jury, and the public, as was intended. There is virtually no process and defendants’ lives are often determined primarily by power dynamics and leverage, not facts and law.
We cannot eliminate the plea bargaining process or demand all cases proceed to trial to ensure a more fair fight. Nor can we begin to punish prosecutors or judges in order to fix the problem. If plea negotiations are conducted in a more fair and transparent process, pleas deals can prove beneficial to all sides and effectively promote public safety and equitably administer justice. There needs to be commonsense guidelines surrounding the negotiation process that ensure both sides have all of the relevant and necessary information in order to make the most informed and justified decision. In a situation where an individual’s freedom and livelihood is on the line, a level playing field and a fair fight is only proper.