The Atlantic on Plea Bargaining

posted by Judge_Burke @ 14:30 PM
May 5, 2017

From THE ATLANTIC:

Shondel Church was arrested in Kansas City, Missouri, last July, accused of stealing a generator and a tool box from his stepmother. He sat in Lafayette County Jail for six weeks before his first conversation with a public defender, Matthew Gass. Gass was reportedly hopeful that he could win the case at trial, but explained that the intensity of his workload meant he would need six months to prepare—six months during which Church would remain jailed. As a father of four and his family’s primary breadwinner, Church felt he couldn’t wait that long and instead pled guilty to a misdemeanor. He received two years of probation and a $2,600 bill for his stay in pretrial detention.

Ninety-seven percent of federal cases are settled the way Church’s was, by plea bargain. State-level data suggest similar numbers nationwide. Though access to a public trial is enshrined in the Sixth Amendment, taking a plea forecloses that possibility. “This constitutional right, for most, is a myth,” U.S. District Judge John Kane wrote in 2014—one voice among a chorus of jurists, advocates, and academics all calling for reform. Some want tweaks to the regulation and oversight of pleas; others urge more ambitious overhaul of the way trials are conducted, streamlining the process to make it accessible to greater numbers of people.

Plea bargains were almost unheard of prior to the Civil War. Only in its aftermath, as waves of displaced Americans and immigrants rolled into cities and crime rates climbed, did appellate courts start documenting exchanges that resemble the modern practice. The plea became a release valve for mounting caseloads. Appellate courts “all condemned it as shocking and terrible” at the time, said Albert Alschuler, a retired law professor who has studied plea bargains for five decades. The courts raised a range of objections to these early encounters, from the secretiveness of the process to the likeliness of coercing innocent defendants. Pleas, wrote the Wisconsin Supreme Court in 1877, are “hardly, if at all, distinguishable in principle from a direct sale of justice.”

 

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