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    Prisoner talks with his wife on a telephone in a jail

    Guilty if Poor

    What do you call a justice system where innocent people plead guilty because their families need them?

    By Matthew T. Martens

    January 22, 2024
    • bill canonico

      this is an excellent article, and a huge problem. i hope something can be done. i was involved in workforce development in central ohio for many years. i interviewed many men and women who had been convicted of felonies and served time. i would usually ask them what they had been convicted of and for how long they had been incarcerated. whenever they told me it had been their first offense and that they had served several years, my next question would be if they had had a public defender. invariably, they had been pressured to plead guilty, and the length of sentence was inordinately lengthy. these were not violent crimes, not sexual crimes, not crimes involving children. i know many of these public defenders have excessive caseloads, and that this may be part of their reason for encouraging guilty pleas, but the lives of these people were seriously hurt by this practice.

    Why would someone plead guilty to a crime he or she didn’t commit? Criminal defendants in the United States are constitutionally entitled to a jury trial. And yet guilty pleas, rather than jury trials, are the norm in the American justice system. Roughly 95 percent of criminal cases are resolved through guilty pleas. The reason that innocent people plead guilty is because our system, as currently structured, pressures everyone into pleading guilty. Even if this practice may be legal and widely accepted, is it just?


    After a suspect is arrested, a hearing to determine bail is held. Originally, the idea behind bail was to ensure that the defendant would appear for trial, and the US Bill of Rights prohibits courts from setting bail at an “excessive” amount.

    Whether bail is granted and in what amount can determine whether the defendant spends months, or even years, in jail awaiting trial. Despite the importance of this decision, there is no right under the US Constitution to the assistance of an attorney at the bail hearing. Thus, a criminal defendant in state court who is unable to pay for counsel often has to navigate the bail hearing on his or her own without an attorney to help.

    If, at the conclusion of the bail hearing, the judicial officer sets bail for the defendant, that doesn’t necessarily mean the defendant will be released from jail. Those defendants who are granted bail in even modest amounts may be entirely unable to meet it because of their limited financial means. According to the Federal Reserve, the median amount of financial assets of Americans aged thirty-five and younger is about $8,500; the median bail amount in the United States is, according to the US Commission on Civil Rights, approximately $10,000.

    The result is that nearly 500,000 people, though they have been convicted of nothing, are in jail every day in the United States prior to the trial on the charges against them. Approximately three quarters of those being held face relatively minor charges – traffic violations, property crimes, or drug possession.

    Speedy Trial

    The public, and even the US Supreme Court, got comfortable with this setup because any pretrial detention will supposedly be brief, given the right to a speedy trial guaranteed in the Constitution’s Sixth Amendment. But what exactly does “speedy” mean? The Supreme Court was presented with that question in a case involving a more-than-five-year delay between the defendant’s arrest and his trial. Though the justices thought it a “close” case, they unanimously concluded that the defendant’s speedy trial right was not violated. It is common for criminal defendants to sit in jail for years awaiting trial. In 2013, the Houston Chronicle reported on the cases of dozens of defendants who had languished in the local jail for years – in some instances, nearly eight years – awaiting trial. Even defendants charged with very low-level crimes often languish in jail for well over a year awaiting trial in Houston.

    This phenomenon is not unique to Texas. The Mississippi Supreme Court ruled that a four-year delay in bringing a defendant’s case to trial following his indictment and arrest did not violate his speedy trial right. A California appellate court ruled that it did not violate the speedy trial guarantee for a defendant to be jailed for seven years prior to trial. A Massachusetts appellate court concluded that it did not violate the speedy trial guarantee to hold a man in jail for nearly five years pretrial because of his inability to make bail. In 2019, a man in Washington State was acquitted at trial after spending more than eight years in jail, unable to make bail.

    Pressure to Plead

    It isn’t hard to see how this combination of pretrial detention and a trial date a year or more away can exert incredible pressure on a defendant, particularly one who is financially vulnerable. While the defendant is in jail, she is unable to earn an income. She will likely lose her job. Rent or mortgages go unpaid, resulting in eviction or foreclosure. Children may be farmed out to relatives or social services.

    At the same time, confinement in the local jail is often a harrowing experience. Facilities are overcrowded and unsanitary, health care is substandard, and the risk of sexual assault is ever-present. Press reports about the conditions at Rikers Island in New York City, which holds in excess of six thousand prisoners on any given day, include accounts of twenty-six men held in a single cell and forced to relieve themselves in plastic bags because of a lack of toilets.

    It is common for a defendant who cannot make bail to wait months to meet his or her court-appointed attorney for the first time. What if, when the defense attorney finally makes that first visit to the jail, he or she has a plea offer from the prosecutor to time served, meaning that the prison sentence accompanying the guilty plea will be only the time the defendant has already been sitting in jail? What if the offense is a relatively minor one and pleading guilty, even if the defendant is actually innocent, means he or she would be released the next day? What if choosing to prove one’s innocence means sitting in a hellhole like Rikers Island for another year or two awaiting trial?

    If you are a person of some means, you likely will never face this choice. If you were charged with a relatively minor offense, even a felony, you would almost certainly be granted bail in an amount that you could scrape together the funds to cover. You would still have to face the charges, but you could do so while living at home and continuing to work and support your family. But if you are poor and cannot pay even a small bail amount, the situation is far grimmer. You lose your job. You’re evicted from your apartment. Your children are sent to foster care. You can’t see a doctor for your chronic health condition. You may be raped in jail. So you swallow your pride, take the deal, and admit to something regardless of whether you actually did it. You can’t afford to sit in jail. The cost to your family, finances, safety, and health won’t allow it. And so you take the plea deal and are home the next night.

    This is a reality that thousands of Americans face every day. To be sure, they aren’t all innocent. In fact, many (or even most) of them may not be. But we don’t know. We don’t know because so many guilty pleas are coerced, under any normal definition of coercion.

    Trial Penalty

    Maybe you would be that unusually determined defendant who would be willing to sit another year or two in jail awaiting your trial to prove your innocence. If so, you will soon learn that you will be threatened with a longer prison sentence if you exercise your constitutional right to a trial and lose.

    In the federal justice system, the threat of more jail or prison time is written explicitly into the law; under the federal sentencing guidelines, your sentencing level will be higher if you are convicted after trial on a charge than if you plead guilty to that same charge. If you refuse to plead guilty, prosecutors can also add charges with mandatory minimum sentences that even the judge cannot override if you are convicted. Or the prosecutor will bring more charges that by law must be added together when imposing your sentence.

    For example, Rogel Aguilera-Mederos, a twenty-three-year-old truck driver, caused a traffic accident in Colorado that resulted in the death of four people. Prior to trial, the prosecutors made the defendant what they deemed a reasonable plea offer. He opted instead for a jury trial and was convicted. The judge had no option under the law but to run the sentences for each charge consecutively, resulting in a total prison sentence of 110 years. When public backlash over the sentence ensued, the prosecutor argued that the result, if it was unfair, was the defendant’s fault for turning down the plea offer.

    A few months later, Pamela Moses’s case attracted similar attention when she was sentenced to six years in prison for attempting to improperly register to vote in Tennessee. When a public outcry arose that this sentence was wildly disproportionate to the crime, the district attorney offered this response: “I gave her a chance to plead to a misdemeanor with no prison time. She requested a jury trial instead. She set this unfortunate result in motion and a jury of her peers heard the evidence and convicted her.” The unjust sentence was the fault, not of the prosecutor who sought it or the judge who imposed it, but the defendant who received it after exercising her right to a trial.

    This ability to threaten longer, mandatory minimum sentences after trial gives prosecutors enormous leverage to extract a guilty plea because, while the judge cannot reduce the sentence below the mandatory minimum, the prosecutor can agree to drop the charge that carries the mandatory minimum if the defendant pleads guilty. In fact, the Supreme Court has ruled that it is constitutional for a prosecutor to threaten these enhanced penalties if the defendant refuses to plead guilty. The result of all this is further pressure on criminal defendants to plead guilty.

    What a Bargain

    It is widely accepted among the American public that plea bargaining is a normal part of the criminal justice process. There was a time, however, when it was not at all clear that plea bargaining was constitutional. In 1962, the Supreme Court seemed to suggest that a guilty plea induced by a prosecutor’s promise of a more lenient sentence was constitutionally suspect. But in 1970, the Supreme Court began to backtrack, holding that a guilty plea was not “involuntary” even though it was induced by a threat that the defendant could receive the death penalty if, but only if, he or she went to trial. The next year, the Supreme Court put to rest all doubt about the constitutionality of plea bargaining, going so far as to extoll the virtues of the practice and calling it “an essential component of the administration of justice.” If plea bargaining were not permitted and trials required in every case, the court fretted that the government “would need to multiply by many times the number of judges and court facilities.” Thus, the court saw plea bargaining to be not only a practical necessity but also something “desirable” and “to be encouraged.”

    Is This Justice?

    So what are we to make of all this? The fact that plea bargaining is widely accepted in American society and its legal system today does not mean that it consistently serves justice. The question is not whether judges are comfortable with the practice or whether a nation’s constitution permits it. The proper question is whether it is just. Does it demonstrate love for our neighbors – both the accused and the victim – as ourselves? In short, the current system fails every element of justice: accuracy, procedural due process, impartiality, and proportionality.

    Accuracy. A just legal system must be committed to accuracy. But the plea-bargaining system, especially when combined with the bail process and detestable jail conditions, is enormously coercive. We know that innocent people plead guilty. Statistics from the National Registry of Exonerations reveal that, since 1989, 24 percent of defendants who have been exonerated after conviction of crimes they did not commit were convicted by their own guilty pleas. Subsequently discovered evidence, such as DNA, proved that they did not commit the crime to which they had pled guilty.

    Due Process. The pretrial detention system also raises questions of procedural due process. The defendant has no constitutional right to an attorney to assist him at the bail hearing. None of the witnesses making the accusation testify at and are subject to cross-examination at the bail hearing. And there is no requirement of proof “beyond a reasonable doubt” at the bail hearing as there would be at trial. In short, the process is insufficient to ensure that we are not locking up for months or years someone who may be innocent.

    Prisoner talks with his wife on a telephone in a jail

    Photograph by Marmaduke St. John / Alamy Stock Photo

    Admittedly, there is a very real issue in some cases that releasing the defendant prior to trial will endanger public safety. In those instances, it may be proper to think about pretrial detention more as an act of self-defense. But there is no serious argument, much less empirical evidence, that locking up hundreds of thousands of people prior to trial for drug possession, property crimes, and traffic violations comes anywhere near meeting the standard for self-defense.

    Proportionality. Plea bargains create injustice even in those cases where the defendant is guilty, and they risk injustice when the defendant is not guilty. Either the plea agreement results in a disproportionately lenient sentence being imposed or, if the sentence under the plea agreement was justly proportionate, the guilty plea was extracted with a threat of an unjustly severe sentence. In either case, this process is not morally defensible.

    Take the case of Pamela Moses, who was sentenced to six years in prison for voter fraud after she turned down a no-jail misdemeanor plea bargain. It simply cannot be the case that both no jail time and six years in prison are just sentences for her offense. If six years in prison were the just sentence, then a no-jail plea bargain was unjust. Either the plea bargain offer was unduly lenient, or the post-trial sentence was unduly harsh. But both outcomes, given how widely different they are, cannot be just ones.

    Impartiality. Underlying the plea-bargaining system is the issue of wealth. Those mired in poverty do not have attorneys to represent them at their bail hearings. The poor in society cannot make bail and are, as a result, detained prior to trial. The impoverished cannot hire an attorney and instead wait months in jail to meet with a court-appointed attorney only to be told that a trial will be even months later. The already destitute suffer life-wrecking financial consequences from pretrial detention. Thus, the poor feel enormous financial pressure to take the plea bargain, guilty or not, and move on with life – if they can.

    The American system of plea bargaining as currently practiced is unjust. It is designed to coerce people out of their right to trial, and it does so through disproportionate sentences and inordinate financial pressure on the poor. Unsurprisingly, the result is that innocent people plead guilty to crimes they didn’t commit. Citizens will need to consider the merits and effectiveness of the various proposals that have been put forward to reform this system. But clearly justice demands we do better than we are.

    This article is adapted from Reforming Criminal Justice: A Christian Proposal by Matthew T. Martens. Copyright © 2023. Used by permission of Crossway, a publishing ministry of Good News Publishers.

    Contributed By MattMartens Matthew T. Martens

    Matthew T. Martens (JD, University of North Carolina School of Law; MABS, Dallas Theological Seminary) is a trial lawyer and partner at an international law firm in Washington, DC.

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