Pleading Out

INTRODUCTION

November 20, 1972, was a crisp fall day in eastern Kentucky. The leaves had turned their final shades of rust and yellow. The air was clean and cold in the city, not cold enough to herd people into heavy coats and knitted scarves just yet, but the kind that chills the lungs enough to sharpen the senses. Officer Cecil Mobley got word from the neighborhood grocery store’s manager about some suspicious characters. They were trying to buy dog food and cigarettes with checks that didn’t look right. Mobley, off duty but working security, went to the front of the store, where the manager pointed out two young Black men. A rookie in the Lexington Police Department, Mobley couldn’t afford to screw this up. He walked right up to the two and demanded to know where they got the checks they were using. They said they found them. Then Mobley pulled his gun.

Paul Lewis Hayes was one of the two men arrested that day. At his second court appearance, the prosecutor insisted that Hayes engage in plea bargaining rather than go to trial. The prosecutor offered him five years on the charge of “uttering a forged instrument”: signing a check that he shouldn’t have signed. Hayes’s story was that he was asked by his alleged partner in crime—a man he had never met—to cash a check for him in exchange for a few dollars in gas money. Hayes said that “I figured because my brother know him… I thought that check was a good check because I never did look at it—the check real good, you know.” Hayes had been in some trouble with the law before, so he was in a compromised position. Still, he had a family to support, and steady work as a horse transporter. Five years seemed like a lot of time for a bad check. He didn’t want the deal.

Frustrated by Hayes’s refusal, the prosecutor upped the ante by threatening to slap him with additional charges under the state’s habitual offender statute. That law, dubbed the “hibitch” by defendants in the know, was meant to teach a lesson to anyone convicted of more than one felony offense. In 1972 the “hibitch” carried a mandatory penalty of life in prison. Hayes’s codefendant was offered a similar deal and took it just so the prosecutor wouldn’t “put the hibitch on him.” Worse, the deal required him to testify against Paul, making the pressure to plead guilty even more intense. But Paul insisted he was innocent. He wanted a trial.

A man of his word, the prosecutor piled the additional charge on Hayes and sought to put him away for life. It was Hayes, not his lawyer, who brought the prosecutor’s tactics up at trial. He told the jury:

Just wait a minute.… I have seen people that has been to the penitentiary seven and eight times out of this very court and everywhere. How come all these people that been in prison is walking the streets that was seven- and eight-time losers? How come this man offered me a five-year plea on a cop-out? That is what I don’t understand.… I have had only one number on my back [referring to his one previous incarceration] and you want to put me away for the rest of my life.… I said, “I am going to take my odds with the jury, you know,” and that is the reason I am sitting here today.1

Later, the prosecutor would scold Hayes on the witness stand, asking “Isn’t it a fact that I told you if you did not intend to save the court the inconvenience and necessity of a trial and taking up this time that I intended to return to the grand jury and ask them to indict you based upon these prior felony convictions?” Hayes was convicted, and because of the sentencing laws in Kentucky at that time, the jury had no choice but to sentence him to life in prison for a check worth $88.30. He was twenty-nine years old.

The US Supreme Court upheld Hayes’s conviction in 1978, under the case name of Bordenkircher v. Hayes. The Court found nothing unconstitutional, or even particularly unfair, in smacking someone with a life sentence for having the audacity to demand a trial. In fact, Justice Potter Stewart’s opinion speaks fondly of the “mutuality of advantage” that plea bargaining gives both defendants and prosecutors. The prosecutor’s job, according to Justice Stewart, is to “persuade the defendant to forgo his right to plead not guilty.” Because Hayes was not persuaded, he had to spend his life in prison over an $88.30 check. That’s just part of the game, said the Court.

Although Hayes was unlucky enough to get a life sentence for a bad check, he was at least lucky enough to return to a semblance of a normal life. He made parole on the first try, nine years after his conviction, with the help of Vince Aprile, the lawyer who represented him before the Supreme Court. After making parole, Hayes went back to transporting horses. He died in a car accident a few years later while moving thoroughbreds across Kentucky.

In Hayes’s parole application, Aprile included newspaper clippings from all over the country of prosecutors expressing outrage over what the Kentucky prosecutor had done. Those prosecutors insisted that they would never have punished a defendant for insisting on a trial.2 But in the decades that followed, it became apparent that this wasn’t true. Bordenkircher v. Hayes became part of a permissive legacy that began in the dark corners of courthouses and was ultimately blessed by judges everywhere, one that allows prosecutors and other players in the system to punish anyone who refuses to engage in plea bargaining with what is now commonly referred to as a “trial penalty.”

Paul Hayes was at the receiving end of a tactic handed down from British nobility to Boston’s high society, one that was intended to keep the laboring classes pacified and divided. Hayes led a difficult life by any measure. He did not live out his days in prison, but he was hardly free. He lived and died as a member of the lowest class in US society: the criminal class. An uncontrolled system of plea bargaining helped put him there.

If you’ve spent time in the seedier parts of the internet, you might have heard of “Rule 34.” Rule 34 is shorthand for the idea that if you can imagine something, someone has created pornography that features that thing, be it an object, a historical figure, an abstract concept, rabies, houseplants, the Indy 500: anything. There ought to be a similar rule for the American criminal justice system. In writing this book, I discovered that anything bad I could think of, no matter how frightening or outlandish, is something that has already happened. “Let’s see,” I thought one night after my third cup of coffee, “I wonder if anyone has ever been arrested for a law that doesn’t exist.” Yep. “Wild! Wonder if anyone has agreed to be physically castrated as part of a plea deal.” Sure enough. “Holy cats! Well, I wonder if a cop ever framed all the Black people in an entire town.…”

In a system like ours, such horror stories are easy to come by. They are generated everywhere, all the time. As an American lawyer, I have a backstage pass to the blood, guts, and gore of it all. I’ve seen cops lock people up for years without trial, just to get them to plead guilty to something. I’ve seen innocent people pressed into pleading guilty by overworked defense attorneys. I’ve seen defendants describe details of things they couldn’t possibly have done to judges who knew they were lying but let them go to prison for it anyway. I’ve seen good people get thrown in cages for the most minor mistakes imaginable, cages that they never really get out of, even after they serve their time.

If you don’t have a law license, you probably don’t get to see the inner workings of the bizarre contraption that doles out what we loosely refer to as “justice.” Paradoxically, if you are in the courthouse every day, you probably don’t think much about the injustices you see because you see so many of them. Shortly after law school, most lawyers learn to accept the haphazard tinkering we do with the rights and liberties of our fellow citizens. And once we learn to accept those realities—even those that would repulse most nonlawyers—it isn’t that hard to normalize them or even to believe that justice couldn’t possibly be dispensed in any other way. In other words, the horror stories don’t look horrible to us. They look quite ordinary.

Among these everyday monstrosities is the practice of plea bargaining. It’s a quotidian injustice that most of the public doesn’t know or care much about. Legal professionals, on the other hand, are steeped in it. For as long as any of us can remember, we have been taught that plea bargaining is the way to manage crime, so we don’t question it. Some judges and lawyers, unable to imagine any other reality, believe that this is the only way our system has ever functioned.3 The common refrain heard from legal professionals is that a reduction in plea bargaining would “crash the system”—that is, any change would create a vast swamp of cases from which the criminal courts might never escape. As someone who has had the honor of representing defendants at just about every stage of criminal proceedings, I myself long believed that plea bargaining was a natural, necessary, and beneficial part of our justice system. But time, research, and years of speaking for people trying to undo the guilty pleas they entered have all changed my mind.

This book will argue that despite its nearly universal acceptance in the United States, the practice of plea bargaining is not natural, necessary, or beneficial. In fact, no other country on Earth relies on plea bargaining to the extent that the United States does, and it’s no coincidence that so many legal systems function much better than ours. Some US jurisdictions have also experimented with ending plea bargaining, with surprising results. This book will look at those examples to expose plea bargaining for what it really is: a means to perpetuate centuries-old class conflict, a tool for satisfying the appetite of the prison-industrial complex, and a chief enabler of the ills that plague our criminal justice system today.

Just what is a plea bargain, anyway? For our purposes, a plea bargain means that someone charged with a crime makes a deal with a prosecutor in which they give up the right to go to trial (and a whole host of other rights). In exchange, the person charged gets a reduced sentence of some kind (“sentence bargaining”), a change in the charge (“charge bargaining”), or both. A plea bargain is not the same thing as a simple guilty plea, or what is sometimes called an “open plea,” where the defendant is offered, and expects, nothing in return for an admission of guilt. The practice of plea bargaining has changed somewhat over time, but it has basically always been a prosecutor telling the defendant “Make this quick, and I’ll give you a break.” Or rather “Make this difficult for me, and I’ll make it really difficult for you.” That’s what happened to Paul Hayes, and it’s what happens to countless people in US courtrooms every day.

The specifics of how plea bargaining got its start are unclear. There is no “first” plea bargain to examine, nor is there any substantial empirical data on the practice for around a hundred years after it began. I owe much of the foundational material in the first two chapters of this book to sociologist and legal scholar Mary Vogel, who has written extensively on the history of the practice in the United States and on its English roots. According to Vogel, the first recognizable records of plea bargaining in America are from Boston in the 1830s.4 At that time, “records” of criminal cases didn’t amount to much, so there isn’t a lot of detail about how or why the practice became acceptable, but we know that it was officially forbidden, or at least strongly discouraged, by courts around the country before that time.

Soon after plea bargaining caught on in Boston, courts nationwide began an about-face on this issue. Within a century, judges developed a nearly universal line of reasoning that likened plea agreements to plain old contracts like the kind you would sign to get a credit card or to buy health insurance. But these “contracts” are what lawyers might call “contracts of adhesion.” Defendants don’t really have much choice about whether to enter such a “contract.” A fast-food worker with a marijuana charge doesn’t have the same bargaining power as the ubiquitous state and all its resources. In bargaining, the state risks nothing whereas a defendant risks every liberty under the sun. Nevertheless, the law persists in pretending that the two are on equal footing as negotiators.

Today, with the full blessing of the courts, plea bargaining is the primary way—indeed, almost the only way—in which criminal cases are resolved in the United States. This basic truth runs contrary to what many of us think we know about the courts. We like to think of our justice system as revolving around the jury trial. In fact, trials in America are practically extinct. Somewhere around 97 percent of US criminal convictions are by guilty plea, and the vast majority of those are a result of a plea bargain. Most judges now believe that plea bargaining is “not only an essential part of the process but a highly desirable part.…”5 As one Supreme Court justice wrote, “To a large extent… horse trading determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.”6

Our process of disposing of criminal cases, which affects the course of thousands of American lives every day, happens at breakneck speeds. Each week, nearly every court in the country carves out a significant amount of time for so-called “rocket dockets” or “plea blitzes”: procedures designed to secure as many convictions as possible in an hour or two. Most files are barely cracked and allegations barely read. Prosecutors offer a deal, defense attorneys counteroffer, the lawyers go back and forth until the price is right, and defendants plead guilty, all without anyone knowing much of anything about the case at all. The judge signs off on the agreement, a once-respectable person has been made into a criminal, and the whole case is over in a matter of minutes. It’s no exaggeration to say that it takes longer to buy a used car in America than to buy twenty years of freedom.

“Fast justice” might not sound bad to many of us, but the consequences of this unyielding need for speed are dire. The last two hundred years of wheeling and dealing over freedom has slowly broken our justice system, divided up the working classes, and perhaps even ruined our democracy itself.

For one thing, bargaining over basic liberties plays out, day after day, life after life, in near-total darkness. Unlike trials, which are a matter of public record, plea negotiations happen in secret, often without the defendant knowing they are happening until the last minute. We don’t see the facts of criminal cases (such as whether the prosecution has enough proof or whether the cops followed the rules) because those facts don’t matter if a defendant is just going to plead anyway. There are no juries, no appeals, and no time for questions. The lawyers who make the deals are not held accountable for the evidence they did or did not present, for the case they did or did not make on behalf of their clients, or for much of anything. We don’t get to have a say in the punishment of someone who has wronged someone in our community because that’s all worked out by lawyers before anyone—including the victim—gets a say. And we don’t care what new criminal laws get passed because we never get a chance to see how those laws really work. The primary objective is to put a case out of its misery as quickly as possible. There is no time to stop and examine the fundamental fairness of the thing, or lack thereof. Everyone must get on to the next charge, the next defendant, the next plea. And the supply is infinite; in America, everyone is always guilty of something.

Plea bargaining also gives the government unfettered power to micromanage lives. Given that plea bargains are the default way of disposing of most criminal cases, it stands to reason that they are primarily to blame for the nearly seven million people who find themselves under the control of our justice system today. Sometimes this control is obnoxiously intrusive, as in the case of those who must report to a probation officer every month, have their whereabouts constantly monitored with an ankle bracelet, or frequently urinate into a cup. Sometimes the control is grotesquely overreaching, as in the cases of people who have been made to attend church or get a vasectomy as part of a plea agreement. And sometimes this control is total, as in the case of the tens of thousands of Americans who find themselves spending months or years at a time in the hell of solitary confinement. But in almost all cases this control is a result of a backroom deal between lawyers, one that will never be questioned by a court, the community, or even the accused.

A plea-driven system also serves to perpetuate divisions among people who share common woes and who might otherwise unite for a common purpose. As we’ll see, when plea bargaining began in the 1830s, the ruling class was trying out a number of tactics with the goal of dividing up America’s ever-growing working class before it got big enough to take over. A central idea of this book is that plea bargaining was one of those tactics, one that was wildly successful. Long before political actors were using social media to create divisions between people of the same socioeconomic status, the criminal law was doing the same work. Criminal punishment segregates people who are under state control, through incarceration or parole, from everyone else. But it goes deeper than that. The criminal law, by its very nature, downgrades the status of whomever it’s applied to. No matter how low you are, you can always go lower by being branded a criminal. Because of the speed and insatiable appetite of its justice system, America now finds itself with a massive and ever-growing number of people relegated to its criminal class, the lowest stratum of all. Although this class itself is nothing new, it is plea bargaining that has allowed its membership to skyrocket in the last century.

So how did we get here, and what can we do about it? Part I of this book dives into history to determine why we needed a device like plea bargaining in the first place. I’ll discuss how a practice that was strictly verboten in the 1820s became the standard for resolving criminal cases just a hundred years later, and how the jury trial—a cornerstone of Western criminal justice for centuries—became a relic of the past. Part II discusses the people who perpetuate the practice of plea bargaining, their motives, and why they won’t act to change things. Part III takes a closer look at how plea bargaining continues to wreak havoc on our justice system today, showing that by the time we reached the twenty-first century, there were no meaningful limitations on plea bargaining. Finally, Part IV explores possible solutions to the problems presented by plea bargaining and how they might (or might not) cure what ails us. Ultimately, I’ll show that although total abolition of plea bargaining isn’t possible, the practice can and should be curtailed and controlled. This change could be accomplished by a number of different strategies, including legislation, executive fiat, or an organized popular movement to reduce and control plea bargaining. The book explores several different paths but settles on intelligent grassroots activism as the most likely route to lasting reforms.

There is one principle that, if recalled by the reader from time to time, may help make sense of some of the horror stories in this book: the American legal system was designed by people in power as a tool to keep them in power at whatever cost. This may sound melodramatic or exaggerated. Most of us have been taught since grade school that the US criminal justice system, though not perfect, is still the best there is. It’s easier to accept a few bad apples here and there—crooked cops, malevolent prosecutors, incompetent defense lawyers—than it is to imagine the whole system rotting at the core. But as we’ll see, for the most part those bad apples are creations of the system itself, doing exactly what they’re supposed to be doing, according to roles that were established centuries ago. They are not anomalies, outliers, or accidents. Our justice system is not good at producing justice. That’s not what it was built for. However, it is good at producing criminals. As we’ll see, the seemingly innocuous practice of plea bargaining is key to the entire equation that produces those criminals, thereby maintaining the status quo: the raison d’être of the whole system.

Although changes to plea bargaining won’t alter the fundamental design of our entire system of laws, we must begin an ongoing conversation about plea bargaining in America if we are to have any hope of correcting the deformities of that system. At present, the practice is, for all intents and purposes, totally unchecked. The major players in the system use it whenever and however they might like, without fear of repercussion. Every day, courts allow the “trial penalty” that was used against Paul Hayes, and worse, in the name of expediency. Overuse of bargained justice has made us apathetic, inattentive, and indifferent to the basic reality of the criminal laws that govern us. And virtually no one questions this state of affairs; outside of a few esoteric scholarly circles, for nearly fifty years no one has seriously discussed whether plea bargaining is a good idea. My aim in this book is to begin that discussion anew. We’ll arrive at a hopeful place, but be prepared for a hellacious ride.

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