A cornerstone of the American criminal legal system, established in the Sixth Amendment, is the right to an open, public trial in criminal cases. Trials provide an opportunity for the accused to scrutinize the government’s evidence against them and require the government to withstand this scrutiny and prove their case beyond a reasonable doubt before a person’s liberty is taken away.
Unfortunately, for the vast majority of people accused of crimes in the U.S., this right has been slowly eroded in favor of the plea bargain. Indeed, plea bargaining has become the primary way to resolve criminal cases in America, with nearly 98% of convictions nationwide currently coming from guilty pleas. This should raise serious concerns for anyone invested in the transparency and legitimacy of our criminal legal system. Plea deals not only deprive people of a constitutional right, they also stagnate developments in the law and hide bad actors in the system, such as corrupt police officers. Without litigating criminal cases, there is no opportunity to examine the conduct of bad state actors out in the open.
Over the last three years I, along with a diverse group of fellow attorneys, as well as judges and academics, have studied plea bargaining as a member of the American Bar Association Criminal Justice Section’s Plea Bargaining Task Force. In a newly released report that outlines our findings and recommendations for a path forward, we show how excessive plea bargaining directly contradicts the values our criminal legal system purports to represent, like justice, accountability and truth-seeking. Instead, it creates a perverse set of incentives that exacerbate existing racial inequality and often coerces innocent people into pleading guilty to crimes they didn’t commit.
As a former public defender in the Bronx and now attorney at Innocence Project, I have witnessed first-hand the coercive forces in the criminal legal system that cause people to plead guilty. For starters, too much conduct is criminalized, which has resulted in a ground swell of cases in the system. The only way the system can survive is if cases are resolved short of the resource-intensive trial and litigation process. Prosecutors, who hold all the power in the plea process, employ tactics, with the court’s blessing, designed to extract pleas from clients. They will seek to detain clients pretrial, only to make a plea offer that will grant them immediate release, knowing that people will do anything for their freedom. They will make plea offers that they withdraw after a certain period of time, known as “exploding plea offers,” designed to squeeze clients into taking pleas early in the process with incomplete information about the strength of their case. Courts will also impose or threaten to impose harsher sentences than the plea offer if a client goes to trial and loses, known as the “trial penalty.” The trial penalty causes many attorneys to advise their clients to take the plea because of the uncertainty of trials.
Rodney Roberts, a colleague of mine at Innocence Project who was wrongly convicted, had to endure these coercive pressures while being detained pretrial for a crime he didn’t commit. His lawyer told him that he would likely lose if he went to trial and be sentenced to life in prison. He was advised to take a plea offer of a seven-year prison sentence where he would likely serve only two years in prison. Eager to get home to see his young son, Roberts took the plea deal. He wound up spending 18 years in custody, both in prison and civil confinement, before DNA proved his innocence.
Due to these overwhelming coercive forces, it’s no surprise that innocent people plead guilty. Of the more than 3,000 exonerations of innocent people since 1989, 26% pleaded guilty, according to the National Registry of Exonerations. Of the 321 people exonerated in New York, 23 pleaded guilty.
Knowing that innocent people plead guilty, many states allow convicted defendants to obtain post-conviction relief with any evidence of innocence, regardless if they plead guilty. Unfortunately, New York is in the minority and out of step with the realities of the criminal legal system. In its 2018 decision, People v. Tiger, the state’s highest court held that defendants who plead guilty cannot challenge their convictions on innocence grounds unless they have DNA evidence to prove their innocence. This is an incredibly flawed law, since not every wrongfully convicted person’s case has DNA evidence to support their innocence claim. In fact, DNA played a role in only 51 of New York’s exonerations since 1989, according to the National Registry of Exonerations.
There is legislation before the New York Legislature, the Challenging Wrongful Convictions Act, to rectify this injustice and make post-conviction relief available to those who pleaded guilty and have a claim of innocence. New York needs a procedural path to help innocent people get relief post-conviction. This was made evident again earlier this month when Westchester District Attorney Mimi Rocah moved to vacate 26 drug convictions after an investigation of Mount Vernon police found that officers used excessive force, made false arrests, and planted evidence to secure convictions. Not every innocent person has the benefit of a district attorney who is willing to reopen their case.
Without passing the Challenging Wrongful Convictions Act, we have a system that punishes innocent people on the front end and back end of the system – an unacceptable cruelty that flies in the face of the values our system is supposed to represent.
Adnan Sultan is a staff attorney at the Innocence Project.