7/3/15

By Anna E. Bodi, ACLR Featured Online Contributor

The speediest trial is the one that never occurs. Recent events have led to outcry about and scrutiny into the actions of police officers in the United States, with particular attention to use of force and the number of citizens shot or killed by officers each year.1 Some of the victims of such police violence never make it into a courtroom, or do not make it far enough past arrest to obtain or receive legal counsel.2 Those individuals obviously never receive a day in court.

Of similar concern is the process after arrest and the initial interaction with police. This stage can also raise concerns about racial prejudice, but the issues transcend racial or prejudicial lines in a way that impacts all stakeholders in the American court system. Once arrested, those citizens who proceed far enough to engage the judicial system often do not have the benefit of a real day in court. The legal and policy limits on what lawyers and judges are able to do, as well as how lawyers and judges approach their roles has eroded the idea of the “day in court”3 so that it no longer has substance. This erosion affects both the perception and reality of fairness and justice, in the judicial system and for society at large.

The process begins with the prosecution. Prosecutors have discretion “to choose from the options available in a criminal case, such as filing charges, prosecuting, not prosecuting, plea-bargaining, and recommending a sentence to the court.”4 With this discretion comes an obligation. According to the Rules of Professional Conduct, “[a] prosecutor has the responsibility of a minister of justice and not simply that of an advocate.”5 While their role is discretionary, the core issue is the type of discretion that prosecutors use, or the way in which they make decisions: “The duty of the prosecutor is to seek justice, not merely to convict.”6 Nevertheless, prosecutors are often under the pressure of numbers—they need consistent and copious convictions. In evaluating the cases that come before them, prosecutors’ role can become that of a processor, focused on churning through cases and “winning,” rather than being an independent minister of justice.

By way of illustration, low level cases, such as soliciting prostitution or drug crimes involving possession of small amounts of controlled substances, are often used as training for interns and new Assistant District Attorneys (DA).7 This becomes a sort of target practice: they work on locking up the perpetrators of less severe crimes before moving up to the big leagues. Offenders can often lose their identities as individuals deserving of justice, and become a “bad guy” in a line of people to be sent to jail. Additionally, new DA staff members may follow the lead of senior counsel, not yet trusting their own discretionary instincts in evaluating the validity of a case file or the overarching interests of justice.8 Indeed, speaking up to question a prosecution may reflect negatively on the new attorney. When this occurs, discretionary practices and procedures become calcified, and old prejudices can unintentionally become systemic.

One element of prosecutorial discretion is the ability to offer or enter into a plea deal. A plea bargain is an agreement “whereby the defendant pleads guilty or no contest to a lesser offense or to one of multiple charges in exchange for some concession by the prosecutor, usu[ally] a more lenient sentence or a dismissal of the other charges.”9 As a result, most cases do not make it to trial, as “ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.”10 Even the U.S. Supreme Court has commented on the centrality of plea bargaining to the criminal justice system, stating that “[t]o a large extent . . . horse trading [between prosecutor and defense counsel] 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.”11

Most defendants will not have their day in court (via a trial) simply because the prospect of a longer sentence or harsher punishment is daunting compared to the “easy out” of a plea bargain. In such circumstances, prosecutors maintain a significant amount of power. Partially motivated by the appealing proposition of avoiding the work of a trial, one prosecutorial tactic is to essentially threaten the defendant with a longer sentence or harsher charge. Even if seeking the maximum sentence or charge might be unjust or unrealistic, offering that as an alternative to a plea deal is an effective, though manipulative tactic.

Such aggressive use of their power can cause prosecutors to forget their higher calling as a minister of justice rather than an attorney striving only a conviction.12 Many offices require prosecutors to take oaths, swearing to uphold the Constitution of the United States and the state in which they work.13 These should be the true fundamentals of prosecution—dispensing justice, not just convictions.

The indigent who are assigned public defenders or pro bono counsel are especially vulnerable to losing their day in court. The defense enters the judicial process after the prosecution, and with less time to prepare as a result. If their client is detained, defense counsel has very limited opportunities to confer with the client. Sometimes, defense lawyers only meet their clients at the door to the courtroom, putting them at a disadvantage in any subsequent trial or plea negotiations. Though the Supreme Court has expanded the right to effective assistance of counsel to certain steps before trial,14 our adequate representation standards still embrace systemic flaws that affect everyday interactions between defense counsel and clients, as well as the lives of those charged with crimes. As a society, we allow this unequal defense-prosecution power structure to exist.

A public defender looking at a plea deal for a two-year sentence versus the potential of a fifteen-year sentence at trial would perhaps counsel his or her client to take the deal. However, if that same defender had the time, energy, and resources to mount the most vigorous defense possible, he or she might have very different advice. For example, three-fourths of inmates with appointed counsel plead guilty, compared to two-thirds of inmates with private counsel.15 The pressure for a lawyer to promote and a defendant to accept a plea bargain can be substantial. The defense might be fearful of proceeding to trial, where the prosecution could push for the client to receive a very harsh sentence.16 Additionally, defense counsel might be concerned that they would be to blame for such an outcome. Defendants, even those who advocate their innocence, may ultimately tell their lawyer to take the deal, rather than risk even greater penalties.

If the defendant accepts a plea deal, he or she often admits to guilt, without a trial, and without a meaningful day in court. Even if the defendant decides to trudge down the risky trial path, with the dynamics between prosecution and defense, he or she does not receive what most people (outside the world of legal standards and jargon) would consider a fundamentally fair trial. There certainly are not time and resources for every defendant to receive vigorous public representation, including full investigation of the facts and the mounting of a strong defense at trial. However, that is not an adequate justification for these structural failures.

Prior to accepting a guilty or nolo contendre plea, a judge engages in plea colloquy to determine if the defendant is entering the plea knowingly and voluntarily.17 However, this conversation is often more of a script than a true inquiry and can simply consist of a list of yes or no questions.18 Judges retain final authority to accept or reject a plea deal.19 However, in most jurisdictions, they cannot be involved in plea negotiations.20 Some judges have proposed greater involvement in the plea process, as judges are in a position to (in theory) objectively review an entire record and make a plea recommendation.21 A magistrate (or similar independent judge) could aid in the negotiation process to ensure an element of fairness, stepping back if the parties decide to go to trial.22

Congress and state legislatures have removed much of the balancing power from judges’ hands and enhanced the power of the prosecution, by imposing mandatory minimum sentences.23 Federal sentencing guidelines are no longer mandatory but are largely followed, creating the same type of restrictions as mandatory minimums.24 Prosecutors end up wielding significant power, whether at trial or through plea bargaining, to determine sentences. A defendant cannot have a meaningful day in court if the prosecution or Congressional strictures, rather than a judge, are making such a determination of what is just and fair.

Former Attorney General Eric Holder introduced moderate sentencing reforms over the last few years, but faced opposition from prosecution and law enforcement interests.25 In 2014, the National Association of Assistant United States Attorneys sent a letter to the Senate opposing reductions to mandatory minimums.26 The letter was signed by two former U.S. Attorney Generals, two former Directors of the White House Office of National Drug Control Policy, three former Drug Enforcement Administration Administrators, and over a dozen former United States Attorneys.27 The letter stated, in part, that“[e]xisting law already [provided] escape hatches for deserving defendants facing a mandatory minimum sentence. Often, they [could] plea bargain their way to a lesser charge; such bargaining [was] overwhelmingly the way federal cases [were] resolved.”28

In the interests of justice rather than expediency, both prosecution interests and the public should begin viewing the role of the prosecutor and the ‘day in court’ more expansively, consistent with the ABA Model Rules of Professional Conduct and Prosecution Function Standards. For now, there remains a power system with prosecutors on top, and defendants often treated as numbers in a lineup, particularly those who cannot afford to pay for their legal representation. Prosecutorial discretion and plea bargains are not inherently unjust. The limitation and removal of discretion, as is seen with judges, inhibits the pursuit of justice.

This production line system, effectively narrowing the right to a “day in court,” has contributed to the United States having the highest mass incarceration rate in the world, “[w]ith less than five percent of the world’s population but nearly twenty-five percent of its incarcerated population.”29 Some of the flaws discussed involve inherent structural problems, but others could potentially be changed by a shift in perspective. We should seize this opportunity to restore the day in court.