Justice in America Episode 2: The 94% — Plea Deals

TV courtroom dramas would have you believe that the trial is a major part of the criminal justice process. But most defendants don’t go to trial. Instead, most defendants decide to plead guilty—even when they are innocent.

What is a plea deal, exactly, and how does it function? Who negotiates a plea deal and who approves it? What are the benefits to the state? What are the benefits for defendants? And more importantly, how do plea deals reduce protections for individuals ensnared in the criminal justice system?

On this episode, we’ll answer all these questions and more. We’ll also be talking to Professor Alexandra Natapoff, a law professor at University of California, Irvine, and one of the foremost experts on plea bargaining in America.  

Justice in America is available on iTunes, Soundcloud, Stitcher, GooglePlay Music, and LibSyn RSS. You can also check us out on Facebook and Twitter.

For more on plea bargaining, check out these resources:

Why Innocent People Plead Guilty
Jed S. Rakoff, The New York Review of Books

Why U.S. Criminal Courts Are So Dependent on Plea Bargaining
Dylan Walsh, The Atlantic

‘Global epidemic’ of US-style plea bargaining prompts miscarriage warning
Owen Bowcott, The Guardian

Research Finds Evidence of Racial Bias in Plea Deals
Equal Justice Institute

Innocence Is Irrelevant
Emily Yoffe, The Atlantic

The Devil’s Bargain: How Plea Agreements, Never Contemplated by the Framers, Undermine Justice
Tim Lynch, Reason

Transcript

Episode 2: Plea Deals

[Music]

[Begin Clip]

Alexandra Natapoff: If we had to litigate every single case, if we had to go to trial on every single case, the government’s resources would be much more constrained. It would be much more difficult for them to arrest and most importantly prosecute and sentence and punished as many people as it does. Plea bargaining thereby really goes hand in hand with mass incarceration. We couldn’t afford mass incarceration as it were, if we didn’t have plea bargaining.

[End Clip]

Clint Smith: Hey everyone. I’m Clint Smith.

Josie Duffy Rice: And I’m Josie Duffy Rice.

Clint: And this is Justice in America. Each show we discuss a topic in the American criminal justice system and try to explain what it is and how it works.

Josie: Thank you everyone for joining us today. You can find us on Twitter @Justice_Podcast. You can like our Facebook page at Justice in America and subscribe and rate us on iTunes. We’d love to hear from you.

Clint: We started the show with a clip from our guest Alexandra Natapoff, who is a Professor of Law at the University of California Irvine School of Law. She’ll join us later in the show to help us discuss today’s topic.

Josie: And today we’re talking about plea deals.

Clint: Yup. Also known as plea bargaining, copin’ a plea, cuttin’ a deal. You get the point.

Josie: So now plea deals are really important in the American criminal justice system, like astronomically important, but before we get to how important they are, we have to kind of talk about the basics. Basics like: what is plea bargaining?

Clint: Well, a plea bargain is basically when a defendant pleads guilty in exchange for a lesser sentence. So in theory, and I stress in theory, a plea bargain process kind of looks like this: So a defendant is accused of committing a crime and the person is clearly guilty, like there’s evidence beyond a reasonable doubt of their guilt. The prosecution offers them a deal, either a lesser charge or a lesser sentence of the same charge if they’re willing to plead guilty rather than take the case to trial.

Josie: So the prosecutor makes an offer and then often the defense makes a counter offer and this back and forth is what’s called a plea negotiation. And if all goes according to plan, they come to some agreement and the defendant agrees to plead guilty. And then the two sides go and present the plea deal to the court and the judge approves it, the judge can reject it to you but they almost always approve it.

Clint: So in the end, the defendant gets a lesser sentence and in exchange, the prosecutor and the defense counsel can avoid the time consuming and costly trial. Everybody benefits, right?

Josie: Hm. Well, in theory. Everyone benefits as long as everyone acts in good faith.

Clint: And as we know, not everyone acts in good faith, which if you haven’t been able to tell, is kind of a recurring theme and one of the points that we’re trying to make on this show. There are all of these elements of the criminal justice system that seem to make sense in theory and they’re great ideas, but they don’t always necessarily play out that way.

Josie: You know in practice once you add in personal bias and system bias and bad incentives and other complicated and dangerous ingredients, you know, it just doesn’t look like it’s supposed to. And these issues or these systems or these processes that sound really good, start to be used for not so great purposes instead.

Clint: Right. And plea deals is one of these systems. And just to be clear, people definitely can benefit from the deals, but that’s not always the case. Like, definitely not always the case, but we’ll talk more about that later.

Josie: So there are a few things to know about plea deals. And the first is how common they are. If you watch any courtroom procedural or movie about criminal justice, like um, you know, My Cousin Vinny.

Clint: An old classic.

[Begin My Cousin Vinny Clip]

Judge: How do your clients plead?

Vinny: Uh, my clients are court completely by surprise. They thought they were getting arrested for shoplifting a can of tuna.

Judge: What are you tellin’ me? That they plead not guilty?

Vinny: No, I’m just trying to explain.

Judge: I don’t want to hear explanations.

[End Clip]

Josie: Or Legally Blonde.

Clint: Right.

Josie: Great, great scene in that movie at a trial.

[Begin Legally Blonde Clip]

Elle Woods: You however did have time to hide the gun didn’t you Chutney? After you shot your father?

Chutney: I didn’t mean to shoot him. I thought it was you walking through the door.

[Crowd Exclamations]

Judge: (Bangs gavel) Order! Order! (Bangs gavel) Order! honor, honor, honor.

Elle Woods: Oh my God.

Judge: Oh my God.

Brooke: Oh my God.

Judge: Bailiff, take the witness into custody, where she will be charged for the murder of Hayworth Windham. In the matter of the State versus Brooke Windham, this case is dismissed. Mrs. Windham, you’re free to go.

[End Clip]

Josie: So that’s what Hollywood is full of, trials and trials and trials, these elaborate long theatrical trials where a defendant is really getting a fair shake at justice. But in reality a lot of cases are resolved via plea deal.

Clint: Like a whole lot.

Josie: Like a whole lot of cases are resolved via plea deal.

Clint: So let’s do this. So if you’re listening, I want you to guess how many criminal cases American courts see each year? The last year we have data for is 2016. So how many do you think there were in 2016? Like in state courts and federal courts combined? Just take a second. Okay. Do you have a guess? Cool. The answer is over 17 million cases.

Josie: Yeah. Insane. Over 17 million cases in one year went through criminal courts in America. So now I want you to guess what percentage of those cases are resolved via plea deal as opposed to going to trial?

Clint: Do you have a number?

Josie: Okay, so if you’ve guessed less than 50 percent, you lose.

Clint: If you guessed less than 70 percent, you lose.

Josie: If you guessed anything less than 90 percent, you also lose.

Clint: Well turns out that about 97 percent of federal cases and 94 percent of state cases are resolved via plea deal. That means there was no trial, no jury verdict and basically nothing in those 95 percent of cases actually happened in a courtroom. It all just happened behind the scenes.

Josie: And that leads to the second thing to know about plea deals, which is it pretty much all happens and private. In particular, the plea negotiation happens in private and so for less serious crimes, like most misdemeanors, a lot of defendants may have to negotiate with the prosecutor on their own since they may not even be entitled to a lawyer.

Clint: And to be honest, for people without lawyers, it’s much less likely that they’ll even negotiate. Right?

Josie: Right, exactly.

Clint: They probably just take the deal if they want to take the deal.

Josie: Yeah and so for more serious charges, like felonies, the negotiation tends to happen between the prosecutor and the defense lawyer, often a public defender, but, but that’s it. So a lot of times the defendant isn’t even part of the negotiation. It’s their lawyer versus the prosecutor hashing out a deal. And there’s no audience, no jury, no judge, you know, you don’t bring your family into a plea negotiation for support.

Clint: Which leads us to this third thing about plea deals, which is that there’s essentially no oversight over the entire plea process. Again, kind of like we said earlier, both sides appear in front of a judge and ask him or her to approve the deal that they negotiated. So at the end, you know, there’s another person there, but there’s no oversight during these negotiations. There’s no third party.

Josie: Right. And these negotiations aren’t preserved for the record. They aren’t transcribed. There aren’t recorded. Basically in millions and millions and millions of cases every year we don’t really know exactly how it went down. We don’t know how, why this defendant was convicted of this crime and what exactly were the factors going into his or her conviction.

Clint: And that’s a problem. Like at the very least, we should demand transparency of our criminal justice system and we should know what happens in these millions of cases. Especially when many of those cases end up with somebody going to prison. But it’s especially a problem when we think about who has the power during these plea deals.

Josie: Look we talk about prosecutors a lot on this show and that’s because they’re extremely important and they matter a lot in cases that go to trial too. But they’re especially powerful in plea deal cases because they have all the leverage. They can’t make any illegal threats so they can’t say to a defendant ‘plead guilty or I’ll stab you,’ but outside of illegal threats they can pretty much do anything else. So the power of the prosecutor is a major downside of plea deals and we want to talk more to you about that, but before we get more into that, let’s talk about some of the other cons of plea bargaining.

Clint: The first is that our plea bargaining system isn’t exactly what the framers imagined when they thought about the criminal justice system.

Josie: Now that may not be a problem to everybody and plenty of laws and processes exist that framers didn’t exactly predict.

Clint: Like AR-15s or black people voting or women that having full dominion and control over what decisions they make regarding their body, you know.

Josie: But it is worth noting that our Constitution expressly says “The Trial of all Crimes except in Cases of Impeachment; shall be by Jury.” And here we are, our criminal justice system with like upwards of 95, 96 percent of cases being handled by plea deal.

Clint: Another major concern is that plea deals allow law enforcement to arrest and charge way more people.

Josie: Yeah, so this is a big one. Often prosecutors and defense attorneys spend like five minutes on plea negotiations. In the past it’s been called “meet ‘em and greet ‘em and plead ‘em.”

Clint: “Meet ‘em and greet ‘em and plead ‘em?”

Josie: Yup.

Clint: That’s weird.

Josie: Right. And for both prosecutors and defense attorneys, many of them are still just overloaded with cases. We’re going to do an episode or maybe a few episodes about public defense in the future, but here’s a quick story. Most public defenders carry a lot of cases and many carry way more than they could possibly dedicate a lot of time to. Like there’s no conceivable way for many of them to take every case that they have to trial, and this is especially true in New Orleans. Stephen Hanlon, General Council for the National Association for Public Defense, did a study and he found that public defenders in New Orleans had five times as many cases as they should, five times as many cases as they as they should to have just a normal full time workload. And here he is talking to Anderson Cooper about it on 60 minutes.

[Begin Clip]

Anderson Cooper: These public defenders doing the work of what five public defenders should be doing.

Stephen Hanlon: That’s exactly right.

Anderson Cooper: Would any other profession be asked to work this kind of a of a load?

Stephen Hanlon: If obstetricians had five times as much work as they could handle competently, if airline pilots had five times as much work as they could handle competently, terrible things would happen.

[End Clip]

Josie: You know, I think this is ultimately it, if none of these cases were handled through the plea process, there’s no possible way that public defenders could handle all the cases that they have if they had to take them all to trial, but there’s also no possible way that prosecutors could try them all. We’d have to arrest and try less people.

Clint: And maybe that’s not such a bad idea. We’ll ask Professor Natapoff about this later.

Josie: So the third major issue with plea bargains is that the plea bargain process, surprise, surprise, is biased against people of color.

Clint: Which considering what we know about the entirety of the criminal justice system and its relationship to race and racism, intuitively isn’t that surprising. But also very few studies have been able to look at this empirically because of what we said earlier about plea negotiations going unmonitored and unrecorded. But last year there was a study that found that in Wisconsin, white defendants had much better outcomes than their black counterparts. They were 25 percent more likely than black defendants to have their most serious charge dropped or reduced. In other words, black defendants are more likely than white defendants to be found guilty of their highest initial charge.

Josie: Yeah, and the study also found that white defendants who face felony charges are about 15 percent more likely than black defendants to end up pleading down to a misdemeanor and white defendants initially charged with misdemeanors are about 75 percent more likely than black defendants to plead down to crimes carrying no jail time or to not being convicted at all.

Clint: And this can seem, after awhile, pretty intuitive. We know and talk a lot about the system’s relationship to race and racism and how it disproportionately impacts people of color and poor people and especially those existing at the sort of confluence of both of those identities, but it’s still important to name and understand the specificities of how it operates, the extent to which it operates and the scope at which these things are playing out. And it can be one of those things that sounds like a sort of water is wet type of study as it’s come to be known. But we make a point of providing the data and the numbers and the empirical evidence because we think it’s important to name things as they are rather than just having a general sense of how things are operating.

Josie: Right. The way that racism plays out in the system, like you said, Clint, it happens at every stage and identifying exactly the ways that people of color and poor people are likely to get a worse shake under the criminal justice system is important. So the last major negative is something we started talking about before. It’s prosecutors.

Clint: They just keep popping back up those prosecutors.

Josie: Yes. So let’s listen to a clip of Laurie Levonson, a former Federal Prosecutor and Professor at Loyola Law School in Los Angeles. Here she is talking to Neal Conan about why prosecutors choose to offer plea deals.

[Begin Clip]

Laurie Levonson: I’ve had white collar cases where on the eve of trial, uh, the law will change. I look around and I say, we better make this deal or we may end up with nothing. Plea bargains sometimes come at the initiative of the defense where they say, look, we, you know, we think that this would be a fair deal. We can individualize justice if you let us plead guilty. Nobody wants to spend the time going to trial. They don’t want the judges to hear all the information. They don’t want to put the victims through it and neither do we. We ended up with the plea bargain.

Neal Conan: So sometimes as a prosecutor you might do it because your case is incredibly strong and other times because you think a case might be a little weak.

Laurie Levonson: Absolutely. It runs the gamut.

[End Clip]

Josie: I think what this underscores is that prosecutors just have so much power, and we talked about this last episode. This is part of why prosecutors like plea deals, right? They don’t have to deal with the jury or even the judge. They really have all the bargaining chips.

Clint: Prosecutors also have a lot of competing concerns, so like we’ve talked about before, prosecutors are supposed to be concerned primarily with justice, but the plea bargain process is very rarely actually about justice. Usually it’s more about processing cases quickly, wracking up convictions and spending as little time and money on cases as possible. And one thing that always gets me about plea deals is this huge gap between the plea offer and the potential charge if a defendant actually goes to trial.

Josie: Yeah. this is called the trial penalty, or as a few people referred as it to us, the trial tax.  There were a few good pieces in The Atlantic last year about plea deals. One in particular by Emily Yoffe and she mentioned a case from 2003 that has stuck with me about a black 16 year old who attempted to rob a restaurant with some friends. One of his friends ended up beating the restaurant manager and all three of them are arrested for the crime and the prosecutor charged this guy as an adult and he offered him a plea deal. And the plea deal was one year in jail, two years of probation, but the prosecutor told him that if he went to trial, he’d face a life sentence without the possibility of parole.

Clint: See, that whole thing is just so wild to me. It’s so difficult to wrap my head around besides the fact that the US is the only country in the world that sentences children to life without the possibility of parole, the fact that this is the option that this young person was presented with seems so beyond any notion of justice that any of us claim to believe in. Like if a prosecutor actually thinks that this kid truly deserves to spend the rest of their life in prison without the possibility of parole, how could he be comfortable sentencing him to just one year in jail? And if he doesn’t think he deserves life without parole, how could he ever pursue that other sentence? He’s basically willing to completely destroy this kid’s life simply because he went to trial and what’s also important to note is that oftentimes we operate under the pretense of public safety in our criminal justice discourse, right? The way that politicians will talk about it is that we want to make sure that we get people off of the streets who represent a danger to society, but if you’re willing to present this person with only one year in jail and then put them back out into society, then it doesn’t make sense and clearly it’s not about public safety if when they decide to go to trial and take a larger risk, they could end up spending the rest of their life in prison. Like this person is not a threat or a danger to society and they’re being punished as if they are.

Josie: So this kind of goes back to your point, you know, plea bargaining just isn’t really about justice. Prosecutors and defense attorneys too are preoccupied by thoughts about caseload, politics, relationships with the other attorneys, relationships with the judge, public perception, their reputation. You know, all of these competing concerns go into their decision making when they’re deciding what offer they want to present to someone. And this means that the defendant is at the whim of these variables that he doesn’t even know about. He doesn’t know about these relationships, he doesn’t know what’s going on. He doesn’t know what else happened earlier that morning and what other deals this prosecutor has cut with this defense attorney, and this is part of why the bargaining structure of plea deals is just so flawed. It creates these incentives that basically fly in the face of justice.

Clint: And the incentive isn’t only to plead guilty when you’re guilty. The incentive is to plead guilty even when you’re innocent. You might notice that there are a few common threads here and some things that keep coming up or continue to be recurring from episode to episode. Lack of oversight, problematic incentives, the importance of the prosecutor. We bring these up because these are consistent realities in the system and it is important to name them and how they’re impacting different people at every stage of the criminal justice system at large.

Josie: Right. So here’s an example to help illustrate the power that prosecutors have and the incentive to plea. Let’s say you’re giving your friend a ride home and you’re pulled over for speeding and the cops ask to search your car and you let them. You don’t think you have any reason to not let them, so they search through the stuff in your backseat, including your friend’s backpack and they find some marijuana. Like half an ounce and they find a few baggies too and you had no idea this was in your car, right? You had no clue. The cop keeps trying to tell you that you’re going to get arrested and you’re really upset. You’re trying to tell him that you did nothing wrong, that you were just giving this guy a ride. It was in his backpack, but you’re both arrested and let’s say your bail is set at $3,000 and that’s just money you don’t have.

Clint: The prosecutor comes to you and is basically like, ‘look, it’s your first time getting arrested. I’m going to offer you a plea deal. Plead guilty to this misdemeanor possession and you’ll just get probation maybe even a few years and this can be expunged.’ Meaning that the conviction won’t show up on your record anymore and that’ll be that. That’s it. No jail time. You can walk out of here today. The prosecutor could then turn it around and say, ‘But if you take this to trial, you’ll be charged with the intent to distribute,’ which he could do because they found baggies in your friend’s backpack. That could get you up to 10 years in prison and you’ll also be charged with resisting arrest. The prosecutor can do that, or he can dismiss the case or he can decide not to offer you a plea deal at all. Or he can say, ‘Look, we have reason to thank your friend has been selling a lot of marijuana, so if you plead guilty and testify against him, we’ll ask the judge to give you no jail time.’ Presented with those options, what would you do?

Josie: It’s hard to imagine ever pleading guilty to something you didn’t do. It’s hard for anyone to imagine that. I mean, unless you’ve actually done it, unless you’ve actually pled guilty to something you didn’t do or you’ve seen up close how it happens. You know, it’s difficult to see yourself doing that, but it happens all the time. Take this scenario we just laid out. On one hand, you’re innocent, so why would you ever plead guilty? But on the other hand going to trial as a risk. You’re innocent but the marijuana was in your car and you didn’t resist arrest, you don’t think, but you were really upset and you don’t know whether or not that counts and you can’t pay bail, so even if you don’t plead guilty, you’ll have to sit in jail until trial and if you plead guilty, it’s a misdemeanor and you won’t even go to jail and and the prosecutor even said it could one day be expunged off your record, but if you go to trial, you could be looking at 10 years in prison. And here’s another example. Regina Kelly was 24 when she was arrested as part of a drug sweep. A jailhouse informant had implicated her and dozens of other people accusing them of being part of a big drug dealing conspiracy. But it eventually became clear that he wasn’t reliable, but Regina was charged anyway and here she is talking on PBS a few years ago about her case.

[Begin Clip]

Regina Kelly: My lawyer came to me and suggested ten years probation and I told him I wasn’t going to take this if I did not do this. I didn’t do this. They have no evidence, no nothing. Everything is screwed up and you still want me to plea out with them and I wasn’t gonna do it. Later on he came back with five years probation. The DA went from ten years to five years and I told them the exact same thing and he kept urging me, encouraging me to take it because if I went to trial then I will be facing five to ninety nine.

[End Clip]

Josie: Five to ninety nine years.

Clint: See what we mean? Plea bargaining is often extremely coercive and it’s coercive even if you’re not guilty.

Josie: So today our guest is Professor Alexandra Natapoff. She’s a Professor at UC Irvine and she’s an expert on the topic of plea deals. She’s going to talk to us more about the plea deal process, about coercion and about the impact it has on defendants nationwide.

Clint: Stay tuned. She’ll be joining us in just a minute.

[Music]

Josie: Thank you so much Professor Natapoff for coming on with us. We’re so excited to talk to you and I know that this is something that you, um, are a foremost expert on plea deals are.

Alexandra Natapoff: Well, thanks so much for having me.

Josie: Much of your scholarship has focused on plea deals and plea bargaining. And I was wondering why, why that is? Why have you focused so much your research on the way that plea bargaining operates in the criminal justice system?

Alexandra Natapoff: So the most straightforward answer is that plea deals and plea bargaining is what we do in this country. 95 percent of all criminal convictions in the United States are the product of a plea or a plea bargain, not the trial. Uh, we almost never litigate guilt anymore, uh, through criminal trials and through litigation. Instead we negotiate. A plea deal is a deal like any other, it’s a negotiation between the government and defendants. And so this is how we decide criminal guilt in this country as the Supreme Court only relatively recently recognized plea bargaining is not an adjunct to our criminal system, it is our criminal system. And I think there has been increasing recognition that this is really what we do, this, this is American criminal justice. And so our attention needs to be focused on it. We have not, criminal procedure and criminal scholarship has not traditionally focused on plea bargaining. We tend to look to the trial as the model, as the paradigmatic criminal justice event, uh, but that turns out now to be inaccurate. And so it really requires a shift in focus. And as I said, I think that that is happening both in terms of scholarship, in terms of what the Supreme Court is saying, in terms of what, uh, the public is starting to understand. We really do every day, uh, every day in our criminal system. But there’s really a, in a way, a more profound reason to focus on plea bargaining that goes beyond the numbers. This is not just what the criminal system does most of the time. This is how we turn people into criminals. This is how we label people a criminal. This is how we decide that they should be marked for life and punished, um, and bear that label. And when we understand that 95 percent of the time, the people who we have designated as criminals got that label, not because we actually tested whether they were guilty through a trial and not whether we litigated what fair punishment might look like, but we impose that conviction through this marketplace, through this enormous, relatively unregulated marketplace that has so many dysfunctions and so many unfairnesses. And I think it’s important to understand that it’s not just about understanding our criminal system, it’s about understanding what we do to people in it and what it means to be labeled a criminal through this process, this relatively unregulated process of negotiation.

Clint: So you’ve talked about how 95 percent of the cases end up in plea bargains. And I’m curious how recent of a phenomenon this is? Like we know and we talk about all the time of how there was this profound jump beginning in the seventies from 300,000 people incarcerated in the country to 2.2 million. What is the relationship between plea bargains and the sort of rise of mass incarceration?

Alexandra Natapoff: So there are any number of connections between those two things. A, it is, it is true that around the same time as our reliance on the criminal system to manage our population started to go up, started to spike, we also relied more heavily on plea bargaining in the 1970s. It was as recently as the 1970s that the Supreme Court declared plea bargaining to be constitutional prior to a case called United States versus Brady, um, it wasn’t clear that it was permissible to get people to plead guilty either by promising them things or threatening them with things. And it wasn’t until that case that the Supreme Court said, ‘It’s fine. This is not unconstitutionally coercive, uh, this is not unconstitutional bribery. You can do it.’ And then when, once the Supreme Court said this is fine, then of course the practice, um, a sort of surfaced as a, as the main way that we were in fact managing cases. And it made it, it made it legitimate so to speak. But it’s, I think the, um, you know, really the heart of the matter is that plea bargaining is what we call a net-widener. So, a net-widener is a practice or a policy that on the one hand might look as if it has benefits, for example, to defendants. So it, uh, it is certainly true about plea bargaining that someone facing, um, on paper or by statute a very long sentence can negotiate a lower sentence through plea bargaining. And so there are certain kinds of benefits. Uh, there are very high risks of going to trial. There’s something called a, what we call the trial penalty. In other words, you tend to get much longer sentences, you’re punished more harshly if you test your guilt and go to trial and assert your innocence then if you negotiate. So we could, we could understand that as a kind of benefit, uh, to defendants. But at the same time, plea bargaining makes it much easier to sweep more people into the criminal system in the first place because plea bargaining as much cheaper than trials for the government. If we had to litigate every single case, if we had to go to trial in every single case, the government’s resources would be much more constrained. It would be much more difficult for them to arrest and most importantly, prosecute and sentence and punish as many people as it does. Plea bargaining thereby really goes hand in hand with mass incarceration. We, we couldn’t afford mass incarceration, as it were, if we didn’t have plea bargaining.

Josie: So plea deals are often seen as a benefit for both sides. For the state, like you said, it allows the court to save resources while closing out cases and for defendants it presumably reduces their sentence or reduces the threat that they’re facing from the court. I think that that’s how it supposedly operates in theory. I’m wondering how you think that diverges from the actual practice of plea bargaining?

Alexandra Natapoff: Yeah. So, so that is what we say. We say both sides receive a benefit in the bargain. The state saves resources and doesn’t have to go to trial. The defendant can reduce his sentence, but it’s a little bit misleading. Maybe a lot misleading because that sentence, that sentence that we, uh, say that the defendant gets to reduce is itself a function of the expectation that it will be bargained over. In other words, legislators set high sentences, high mandatory minimums, very broad sentencing ranges, um, with the understanding that they are conferring power on the state to negotiate. Mandatory minimums are perhaps the most famous example. When the legislature sets a mandatory minimum, so and these are most famous of course in drug cases, that a certain amount of drugs will trigger a mandatory minimum sentence that the court, that the sentencing judge has no discretion to change. And what that does is it gives an enormous amount of leverage and power to the state, to the prosecutor in that negotiation. And in many ways that’s it’s function, um, that the legislators are creating these high sentences so as to create that leverage. And so to say that the defendant is getting a deal, uh, to say that they are getting a lesser sentence than they would otherwise get, is to misunderstand the source of that, that price tag, that original price tag. Professor Stephanos Bibas , who is now now a federal judge, um, uh, has pointed out that it’s, it’s a little naive to think that the statutory sentence is real. It’s like thinking that the sticker price of a new car in a dealership is the real price. No one thinks you’re going to pay that. Nobody thinks it would be reasonable for you to walk in and think that that was the true price and then feel grateful when the dealer offers you something less. The sticker price is designed to generate negotiation. And sentences are the same way. So on paper it looks like a good deal, but the truth is the paper has grown up around the understanding that this negotiation is going to take place and it is designed, as are so many aspects of the criminal code and the sentencing, the sentencing arrangement to give the state leverage.

Josie: Right.

Clint:  So a lot of your work is focused on misdemeanors and plea bargaining and a lot of people, we’re in this sort of moment where folks who are calling to decriminalize things that are currently seen and understood as misdemeanor crimes, but you’ve written, uh, that, that may not actually be such a good idea, which kind of runs counter to obviously a lot of what other folks are saying. Could you explain that and expound on that a bit?

Alexandra Natapoff: Sure. So let me be clear. Decriminalization is a great idea. It just doesn’t do everything we think it’s going to do and it does some things that actually we really don’t want it to do. And this is because of sort of progress and reform in the criminal system is always tricky. It’s never really that straightforward. It always has side effects. And decriminalization in that sense, um, has some very profound and troubling side effects even though it’s such an important reform. So let, let’s just note how important it is. We have been over criminalizing for over 30 years. Decriminalization, which is, which takes a number of forms, but, but typically in the misdemeanor arena, it means that at the very least, we take incarceration off the table as punishment. So we convert crimes into fine-only offenses so that people do not face the possibility of a sentence of jail, whether it’s for marijuana possession or for disorderly conduct and other order maintenance crimes or for driving on a suspended license, for example. So there are a whole range of cases that can be profitably converted into non jailable offenses. Fine-only offenses. Much of the time they’re still crimes. In other words, you still get a criminal record, you still may suffer the collateral consequences of those crimes, but, but you’re not going to jail upfront. So obviously in a, in a country that over relies on incarceration that is so profoundly distorted our public space through incarceration, it is a great idea to take incarceration off the table for many of these, uh, many of these low level crimes. It’s also a good deal because it saves the state an enormous amount of money. The Supreme Court has held that if you cannot be incarcerated for an offense, so if an offense has been decriminalized and there is no possibility that you will be sentenced to incarceration, then you are not entitled to a lawyer. You don’t have the right to counsel because the state, because the Supreme Court has deemed those offenses in effect too minor to trigger the right to counsel. Well, what that means is a couple of things. The state doesn’t have to pay for counsel. It means all those overburdened public defender offices that cannot manage their misdemeanor dockets will get a break, a reprieve, a, those cases will be taken off their dockets, they’ll have more time to litigate and represent the cases that are left. Uh, it means that people are not going to jail. Jail turns out to be extremely expensive for the state. We say we’re not going to put you in jail and now we don’t have to pay for that. It means prosecutors don’t have to devote the same kinds of time and effort to those cases. So decriminalization, in some ways, um, I think rightly understood as this kind of progressive silver bullet. It helps everyone on both sides in all these ways, but you’re, but you’re right, it does have a dark side and I think we have inadequately understood its dark side. So as, as we were talking about before, decriminalization is a famous net-widener. It makes it much easier to sweep people into the criminal system, uh, in the first place, for all the reasons I just described. It’s cheaper, it’s easier, they don’t have lawyers, um, uh, uh, the, the processes by which we adjudicate decriminalized offenses can be a much, much lighter, sort of quick and dirty. So it’s much easier to convict people. So ironically, decriminalization, which is an effort to reduce the harshness of the criminal system, can ironically actually expand its reach. As we’ve seen now since, um, since Ferguson and since the Department of Justice released it’s Ferguson report, we have a major problem in low level courts that are using minor offenses to raise revenue. Uh, we, we now understand low level offenses, not just as a problem of crime, but also that jurisdictions and courts see it as a revenue raising opportunity. And decriminalization makes that worse because it’s a ready revenue source. You don’t have to give people lawyers and you can raise money by essentially issuing as many citations and tickets and decriminalized summons as you like. And now people are on the hook for fines and fees that the state can use to fund its operations, even though all too often individuals can’t afford those fines and fees. And that brings us to the last sort of major aspect of this double edged quality, which is when people cannot afford those fines and fees, ironically, we lock them up. Uh, we, we undermine the very value of decriminalization itself because when they can’t pay those fines and fees, we then incarcerate them, not for the underlying offense, which we cannot do by statute, the statute says there’s no jail available, for example, for marijuana possession. But if you fail to pay the fines and fees, you can be locked up for that. You can be held in civil contempt. Courts are now grappling with the question of, of whether we need to give lawyers to people who violate their probation on a decriminalized offense and thereby face incarceration. Uh, so it turns out that it is not a magic bullet to keep people out of jail. It is sadly a magic bullet to keep the wealthy out of jail because they can pay those fines and fees, but for the vast majority of our criminal justice population, who are on average lower income, less educated, have fewer resources and are therefore less able to pay those fines and fees, really we’re postponing incarceration. We’re not actually eliminating it. And so when we turn to decriminalization, I think it needs to be with an eye towards making sure that we take advantage of all the benefits that it offers, but that we are vigilant to make sure that it does not turn into some, you know, into, into a trick, really a kind of regressive tax policy masquerading as progressive penal reform.

Clint: That’s really helpful.

Josie: Yeah, that makes a lot of sense. So I wanted to talk about innocence and plea deals because innocent people, as you’re well aware of, often plead guilty to crimes that they didn’t commit. And I think for the general public that’s extremely confusing and just completely not intuitive and actually produces a lot of skepticism that these people are innocent because why would you ever plead guilty to something that you didn’t do? Um, and I was hoping that you could talk more about the ways that plea bargaining shifts the risk calculus even for people who are innocent or maybe especially for people who are innocent.

Alexandra Natapoff: Sure. Uh, I think you’re right that it is hard for people to wrap their mind around the idea that an innocent person would plead guilty to a crime they didn’t commit until you understand the way that the plea bargaining market works. So sometimes we’ve referred to this as the trial penalty. Basically pleading guilty, uh, helps people avoid the risk that they will get a much, much longer sentence if they go to trial. If trials worked perfectly, in other words, if we were confident that innocent people would not be convicted at trial, this would not be a problem. But that is not the criminal system that we have. In our criminal system in fact, uh, there are, as the Innocence Movement has so tragically demonstrated, time and time and time again, innocent people are often convicted at trial. Um, particularly people who have criminal records who are unlikely to be believed by juries and who also tend to be facing much longer sentences if they do go to trial because we penalize people who have been touched by the criminal system multiple times and we sentence them more and more harshly each time. And so the difference between the risk of going to trial and facing, uh, certainly in the felony system, extraordinarily long sentences and the certainty of a lower sentence through a plea bargain induces individuals who may well be innocent to see that as a good deal. For all of us who are risk averse about anything, I think that we can empathize with the, with the notion that the, you know, the, the shorter sentence, the devil we know is more manageable than the extraordinary sentence that we often risk, again, in the felony system. Um, you know, if we take that risk and, and, and go to trial. And that’s generally true throughout the criminal system. The problem is in some ways even worse for misdemeanors. And it’s worse for misdemeanors and a couple of ways. And I, and I should just note that although the innocence movement has not traditionally paid attention to misdemeanors and low level offenses, there are almost no misdemeanor exonerations because it’s not the kind of cases that misdemeanor projects take. There are strong arguments that there are hundreds of thousands of wrongful misdemeanor convictions every year, uh, that we’re not even paying attention to, that we have, you know, that we haven’t even taken a look at. And the reason is, there are a couple of reasons. One is the way that bail works in the low level courts. So an individual who is charged with a low level offense, um, and given the possibility of bail, which they cannot afford, which happens in many jurisdictions in the vast majority of cases, most people who are set bail in low level cases can’t afford to pay it. It might be as little as five hundred or a thousand dollars. But for, you know, for most Americans that’s a lot of money. And so now they’re in jail on bail, they can’t pay. And the prosecutor offers the deal, which is, if you plead guilty to time served, meaning that one, two, four, six days you’ve already spent in jail, uh, we’ll let you go home. So for people with children who are at risk of losing their jobs, who have medical conditions, tragically that’s a good deal.

Josie: Right.

Alexandra Natapoff: And the pressure is even greater because misdemeanors are often perceived as a manageable burden. In other words, you’ll just have a minor assault conviction. You’ll just have a marijuana conviction. You’ll just have this seemingly low level conviction. Whereas the cost of staying in jail is enormous. And so people take those deals and now they’re marked for life. Now they have a criminal conviction for life. Now, uh, uh, what they didn’t pay up front, they are now going to pay over decades in their inability to get jobs and their potential inability to get benefits. And so it’s really tragic that the, that the plea bargaining machinery exerts so much pressure on low level defendants to plead guilty when they very well may not, may not be guilty at all. The other pieces that low level courts are often very bad at, uh, addressing and litigating legal issues and issues of innocence in low level cases that the dockets are enormous. Public defenders are overwhelmed. There are often very few resources, so it’s, it’s actually very hard to get a trial, to get the resources to properly litigate your, your innocence in low level courts. And so the incentives to plead guilty even if theoretically you could prove your innocence, you know, are very high.

Clint: Professor, what would it look like if all of the people who are actually innocent decided not to accept plea bargains, even though obviously you’ve kind of laid out very thoughtfully, how, how the incentive structure of our current criminal justice system makes it so that people are often accepting guilty pleas just so that they can get home to their family, to their job, to their kids, to their lives. Understandably so. But I’m wondering theoretically what would happen if everyone who was actually innocent said, ‘No, I want to go to trial’ and like how would our justice system manage that when you talk about how it is set up to be with the expectation that all of these people will accept plea bargains?

Alexandra Natapoff: Yes, that’s a great question. Um, you know, we’ve seen over the years various scholars and advocates come forward and argue that we should, so to speak, crash the system. ‘Stop pleading guilty,’ they say, ‘fill up the jails, fill up the court system, uh, put your body on the line to force the system ineffective.’ Internalize the costs that are now externalized, make, make the system really pay for sweeping so many people in. And the hope there of course is that if that first wave of defendants were in effect willing to sacrifice themselves because, so theoretically what would happen to those first few people is that the jails would fill up, that they might well end up spending much more time in jail than they would have otherwise. Because it is true that you can obtain release quicker through a plea bargain then you can by waiting for trial, especially if you, if you can’t afford bail. And so we would be asking thousands of people to sacrifice their lives, their jobs, their families, their children to right the system. Um, eventually the theory is that there would be what we might call a market correction, that the market would respond. They would say, ‘Oh my goodness, we can’t afford this,’ and that eventually we would arrest fewer people because we couldn’t afford to jail them. We would prosecute fewer people because we couldn’t afford to litigate because we couldn’t afford to adjudicate them. But the rub is right there at the beginning and for, for attorneys representing those individuals, defense attorneys their first obligation is to their client. Their first obligation is to serve the needs, um, and, and the decisions of the client that they actually have. And so it’s very tricky, its a very tricky situation. You can, in a way, you can imagine lots of arenas of public policy in this country that if thousands of people were willing to sacrifice their wellbeing to make sure that we had better health care, that we had better education, you know, that eventually we would see market corrections in all these arenas, but it’s so expensive and that I think is why we haven’t seen it.

Josie: So procedural structures, um, I wanted to talk about, I know that you’ve done a lot of work on kind of the procedural structures that are absent when we talk about plea bargaining and these are supposed to be safeguards for defendants in the criminal justice system, basic things that are supposed to be helping the defendant, they don’t exist during the plea negotiation process. And so I’m wondering how that affects defendants and what kind of procedural safeguards are most important that are absent or that you wish existed more in the plea bargaining process?

Alexandra Natapoff: So it’s a funny thing our criminal system because plea bargaining arose in this informal kind of under the, under the table way it was never really regulated. We’re only just starting to appreciate the kinds of regulation that might give us fairer, more accurate, more just plea bargaining processes, but traditionally criminal procedure, so, so the, the rules that the Supreme Court has discerned from the Bill of Rights, uh, that states have in their criminal codes, criminal procedure has always been trial centric. In other words, it’s always assumed that at the end of the day, the most important thing to regulate was the trial. And when I say regulate, I mean insure its integrity, make sure that everybody has all the information, make sure that it’s fair, make sure that the lawyers have the tools that they need, make sure defendants understand what’s going on. All the things that we would want generally of our criminal system have been lavished on the trial, so to speak, and then left everything that comes before that, relatively unregulated. So sometimes we, sometimes we say, um, so one way to think about that is that the trial is the moment of adjudication. When the judicial system decides are you guilty or are you innocent? What are the constitutional issues that are at stake in your case? And everything leading up to that, on the part of the state at any rate, we call investigation, the state is figuring out, do we have evidence against you, should we prosecute you for a crime? And the Supreme Court has always assumed that strong regulation in the adjudicatory process, in other words, at trial, once the formal processes kicked in, would indirectly check and regulate what happens during investigation. So police can do all kinds of things during investigation, um, to gather evidence to, uh, you know, to get people to confess. But once the adjudicatory process starts, and certainly once we get to trial, there are a lot more rules. And the assumption was that those rules would keep everybody honest all the way, all the way down. The problem is, is that now we almost never go to trial. And so all those robust adjudicatory regulatory mechanisms, discovery, cross-examination, jury instructions, evidentiary rules, um, we never get there. So the investigative process, in other words, all the evidence that the police or the FBI or investigative agencies can bring forward and then prosecutorial discretion and authority determine outcomes instead. And neither of those arenas are particularly regulated. So it isn’t true as the Supreme Court assumes that adjudication will check investigation. In fact, investigation is doing almost all the work and we never get to trial. We never get to all our world famous protective rules that the Bill of Rights, the 4th Amendment, the 5th Amendment, the 6th Amendment, uh, you know, new democracies around the world copy them. They say what, what great democracy enhancing provisions you have. We know we want to use those to have a fairer criminal system, but also often we never get to them and so we don’t, like I said, we don’t get the benefit. None of us get the benefit. Defendants of course don’t get the benefit, but we rely on defendants to keep the whole system honest. We rely on that adjudication to keep the whole system transparent, to have a 95, the fact that 95 percent of convictions in this country are the result of a plea, of course tells us a lot about what is happening to defendants, but remember, it also means that the public doesn’t know what happened in most of those cases. Most of the time the public will never learn how its own government or governments because of course we prosecute crime at many levels of government, will never know what it’s government is doing and in the name of the people. And so it’s a lack of transparency, uh, as well as a lack of regulation that, um, that we’re really only just starting to grapple with.

Clint: So, Professor, you’ve laid out an enormous amount of information around plea bargains and, and how harmful they are and how even some of the things that we don’t necessarily sort of intuitively think of as harmful, such as decriminalization, actually has these really harmful side effects. We’re wary on this podcast of asking what is the solution? How do we fix it? Because we know that these things are far more complicated than a sort of single answer, but, but what do you think of as the means by which to sort of move toward or rather move away from an over reliance on plea bargains and what does that look like politically?

Alexandra Natapoff: So you’re right not to ask people to solve, you know,  (laughs) major questions on the podcast-

Josie: (Laughs)

Clint: (Laughs) Right.

Alexandra Natapoff: But, but at the risk, the risk of violating the rule, I think there are any number of ways. Um, and part of it is understanding that plea bargaining is inextricably intertwined with all the other major aspects of our criminal system. It’s size, it’s dehumanizing quality, it’s disrespect, it’s racial skew, the pressure that it puts on the poor, plea bargaining is part of all those things. You can’t fix plea bargaining without considering the, the entire range of ways that our criminal system has run amok. But here are a few threads I think that we could profitably pull. The first is uh, you know, as we were talking about before, it’s a little bit chicken and egg because our criminal system is so big so we say we need plea bargaining, but one of the reasons we need, we have such a big system is because we rely on plea bargaining, which is a net-widener. So the first thing is to retract the net to, to reduce our reliance on arrest and on prosecution, uh, to manage social issues. I don’t think anyone disagrees that the criminal system is the correct response to murder. That criminal justice is the right state mechanism to handle, um, you know, multimillion dollar Wall Street fraud. But, but that’s a tiny piece of what our criminal system does. We round up people for all kinds of chump change and criminalize them. We use the criminal system to regulate schools and public spaces, to manage gentrification. And we could back off of that. We could understand that this particular cure is worse than the disease. And if we did, if we retracted the net in the various ways that we, um, that we can then there will be fewer people left in the system, there will be more resources and maybe we would have the time to, instead of rushing folks through to adjudicate their cases. We’ve seen, we’ve seen, um, you know, case studies in various jurisdictions that have experimented with lower, sort of low procedure trials, quicker trials, an hour, two hours, not three or four days to give people some process, some adjudication. So at least there’s some scrutiny of the evidence. I mean, you know, many scholars have written about that possibility, but while the pipeline is so full, it’s very difficult, uh, for the institutions of our criminal system to kind of take their foot off the accelerator when everyone’s under so much pressure. In particular, you know, recently, we’ve seen a lot more attention to the role of the prosecutor and in many ways prosecutorial decision making is a black box, we know very little about it, but that’s starting to change. When we remember that prosecutors are really the gatekeeper in many ways, so, you know, there are about 11 million arrests every year in this country, but it’s prosecutors who decide whether those cases, whether those arrests should become criminal cases or whether they should just stay arrests. Not everyone who gets arrested needs to be charged and prosecuted for a crime. And so that front line function of prosecutors its called declination, essentially it’s prosecutors looking at arrests and deciding whether to decline the case, in other words, you know, all that happens to that person is that they were arrested and they may have spent some time in jail, but that’s but that it stops there, or whether that case should go on into the formal adjudicative system and turn that person from an arrestee into a defendant.  It’s a very important moment in our criminal system. We all rely on it for systemic integrity and we should incentivize prosecutors to decline cases more. And I think more philosophically, we need to change our minds about what we think is harsh. We need to change our minds about what we think is too much and that in many ways is really the terrible legacy of mass incarceration, which is that we’ve been desensitized to the scale and harshness and violence that the criminal system and inflicts on millions of people every year in this country. We’ve heard so much about the twenty year sentence, the thirty year drug sentence, to life without possibility of parole, that we’ve lost sight of the fact that the average felony sentence in this country is four years. That’s college. Instead of sending people to college we’re sending them to prison. Four years is an enormous amount of time in someone’s life. And yet we’ve sort of looked past the fact that on average, our system is very harsh. Not, not only at the extremes but every day. And I think if we appreciated just how punitive going to prison is, just how punitive sustaining a criminal conviction is, even for a misdemeanor, even for a crime, uh, that, that someone might not do any jail time for at all, but nevertheless carries that burden with them for the rest of their lives in the economy, in their education, with their family, with their friends. That if we could resensitize ourselves to just how punitive and harsh our system is, then the scope and the scale of the system would be revealed in its excess. And then we might think that that market is out of control. And that in some way might be the most important reform that we need.

Josie: Great. Thank you so much. This was just amazing.

Alexandra Natapoff: Very nice to meet both of you.

[Music]

Josie: That was Professor Alexandra Natapoff, Professor of Law at the University of California Irvine School of Law. And we’re so grateful that she took the time out to join us today.

Clint: Thanks for listening to Justice in America. I’m Clint Smith.

Josie: I’m Josie Duffy Rice.

Clint: You can find us on Twitter @Justice_Podcast, like us on Facebook at Justice in America and subscribe and rate us on iTunes.

Josie: Justice in America is produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn with additional research support by Johanna Wald. Thank you. And join us next week.