No Comment — September 27, 2011, 4:00 pm

When Prosecution Becomes Persecution

Richard J. Oppel has just published a piece in the New York Times detailing the rising prominence of plea bargains in the U.S. criminal-justice system. In this passage, he shows how things got where they are:

After decades of new laws to toughen sentencing for criminals, prosecutors have gained greater leverage to extract guilty pleas from defendants and reduce the number of cases that go to trial, often by using the threat of more serious charges with mandatory sentences or other harsher penalties. Some experts say the process has become coercive in many state and federal jurisdictions, forcing defendants to weigh their options based on the relative risks of facing a judge and jury rather than simple matters of guilt or innocence. In effect, prosecutors are giving defendants more reasons to avoid having their day in court.

“We now have an incredible concentration of power in the hands of prosecutors,” said Richard E. Myers II, a former assistant United States attorney who is now an associate professor of law at the University of North Carolina. He said that so much influence now resides with prosecutors that “in the wrong hands, the criminal justice system can be held hostage.”

In the wrong hands? Myers’s remark ignores human nature. Prosecutors are wont to use all the tools at their disposal in order to obtain their objective—which, in theory, should be justice. In practice, however, their goal is simply convictions, whether just or not. The current system makes it remarkably easy for a prosecutor to secure the conviction of an innocent person, and indeed this result is hardly rare.

Oppel’s Times piece posits that the “trial penalty” underlies the shift in criminal justice. The theory highlights the way the plea-bargain system allows prosecutors to threaten defendants who are considering exercising their right to a trial with a dramatically heightened sentence compared with the one being offered in exchange for a guilty plea.

There are economic reasons why the court system wishes to avoid trials, of course, but the costs are sometimes difficult to reconcile with fundamental notions of justice. A recent case makes this point well. Kevin Ring, an associate of Jack Abramoff, was up for sentencing this month after being convicted of corrupting public officials. While most of the Abramoff cohort had agreed to deals carrying prison sentences of two to three and a half years, Ring decided to go to trial. His decision was reasonable in that the evidence against him was never as clear-cut as it was against figures like Abramoff and Michael Scanlon. Moreover, Ring was fairly peripheral to the scandal. He had offered Washington figures sporting-event tickets and lavish meals, but the numbers involved were middling, and such practices are commonplace in Washington. The jury at his first trial deadlocked. The second trial resulted in a conviction. At sentencing, federal prosecutors sought a prison term of seventeen to twenty-two years, saying Ring was “not entitled to the benefits, or leniency, enjoyed by his co-conspirators.”

Let’s do the math: prosecutors were recommending a sentence for a marginal figure in the scandal of eight to ten times that given to its ringleaders. Why was he “not entitled” to a more lenient sentence? For one reason: he insisted on his right to trial by jury. (It probably didn’t help that he came close to winning his freedom in the first trial, either.) Ring’s attorney said afterward that the prosecutors’ effort showed signs of “undeniable vindictiveness.”

The judge who heard the case didn’t buy the prosecution’s line, but she did sentence Ring to between four and five years, more than the people who actually managed the Abramoff scam received.

In Ring’s case, at least, there was sufficient evidence of guilt to convince a jury. Far more troubling are those cases where an innocent person enters into a guilty plea rather than risk a longer sentence after trial. This dynamic may be efficient from a prosecutor’s perspective, but it has nothing to do with justice, and it points to a system that is increasingly rigged in favor of the prosecution.

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