Ethics of Plea Bargains Questioned

This article was originally published in Maclean’s magazine on 8July 9, 2007. Partner content is not updated.

It's an amazing thing for a person to confess to a serious CRIME - to accept the scarlet letter of a criminal conviction and give up their freedom willingly, without a fight, passing up the constitutional guarantee of due process.
This article was originally published in Maclean’s magazine on 8July 9, 2007. Partner content is not updated. It's an amazing thing for a person to confess to a serious CRIME - to accept the scarlet letter of a criminal conviction and give up their freedom willingly, without a fight, passing up the constitutional guarantee of due process.

Ethics of Plea Bargains Questioned

It's an amazing thing for a person to confess to a serious CRIME - to accept the scarlet letter of a criminal conviction and give up their freedom willingly, without a fight, passing up the constitutional guarantee of due process.

And yet, every day in Canada and the United States, thousands of accused do just that - throw up their hands and say "I did it." According to Department of Justice figures, roughly 90 per cent of criminal cases in the United States end in a guilty plea, the vast majority of which have been negotiated with prosecutors in return for a lesser charge, a lighter sentence, a more comfortable prison, or an agreement to testify against someone else. A 1997 Queen's University study found that plea bargaining in Canada is just as common, and works in much the same way.

It's not just prevalent. The plea bargain has become the primary means of dispensing justice in North America. And testimony extracted from conspirators-turned-co-operating-witnesses has become a central feature of nearly every major corporate crime trial in the modern era, from Enron, Tyco and WorldCom, to the current prosecution of Conrad Black, which rests heavily on the testimony of David Radler, who agreed to plead guilty in exchange for a sentence of 29 months, to be served in Canada.

We know that plea bargaining is legal. The U.S. Supreme Court explicitly sanctioned the practice in the late 1970s. The Supreme Court of Canada in 1987 criticized the notion that justice can be "purchased at the bargaining table," but nonetheless refused to prohibit, or even limit, such deals. We also know it's effective - both for accused criminals looking to minimize their punishment, and for prosecutors coping with the torrent of cases sloshing through the courts. But is it right? Are these bargains moral? Those are questions few bother to ask anymore, says John Langbein, a professor of law and legal history at Yale, and an outspoken critic of the system.

"Plea bargaining works by threat, and it goes like this: 'Oh, you want to exercise your constitutional right to a jury trial? Please be our guest. But understand that if you exercise that right we will punish you much more severely,' " he says. "In effect, that means we are punishing you twice. Once for what you did and once for having the temerity to exercise your right to face a jury."

To Langbein and other critics, the gap in sentences handed to those who co-operate with prosecutors, versus those who maintain their innocence and go to trial, illustrates a form of coercion that underlies practically every serious prosecution in Canada and the U.S. Perhaps the most famous example unfolded in the late 1970s, in the case of Paul Lewis Hayes, a small-time American fraudster and petty criminal. Hayes already had two felony convictions on his record when he was caught forging a cheque for US$88.30. Prosecutors told Hayes he would get a five-year prison term if he pleaded guilty, but if he chose to go to trial, he would be indicted under Kentucky's Habitual Criminal Act, which carried a mandatory sentence of life in prison. Hayes refused to accept a five-year term for an $88-crime. He was convicted as a habitual offender and sentenced to life in prison.

Hayes argued all the way to the Supreme Court that his sentence was unconstitutional, and represented a punishment for exercising his right to a jury trial. But in a watershed 1978 decision, the Court ruled that since Hayes was free to accept or decline the state's offer, and knew the potential consequences of each option, there was no coercion. Hayes has been in a Kentucky prison ever since.

Even to the defenders of plea bargaining, cases likes Hayes's leave a bad taste, but prohibiting the practice isn't the answer, they say. Timothy Sandefur of the Pacific Legal Foundation wrote in 2003 that the right to a jury trial is not "inalienable," and to take away a defendant's ability to bargain with the state for leniency would be unfair. "It is true that the Framers included a right to trial by jury among our vital constitutional guarantees, but that does not mean defendants lack the freedom to waive that right or trade it to the state in exchange for a lighter sentence," Sandefur wrote.

Still, even Sandefur acknowledges that the system is rife with abuse - too often relying on intimidation and coercion - and that any government practices that "chill the exercise of constitutional rights" are dangerous. Ultimately he, and other defenders of the status quo, fall back on pragmatism: the state simply cannot afford to try all the thousands of people charged with a crime in a given year. There's no question, plea bargaining saves us from a prohibitively expensive judicial system. But many legal minds simply can't abide the moral implications of that efficiency.

In 2001, Chief Judge William Young of the Federal District Court in Massachusetts decried the fact that thousands are bullied into guilty pleas each year. "Criminal trial rates in the United States and in this district are plummeting due to the simple fact that today we punish people - punish them severely - simply for going to trial. It is the sheerest sophistry to pretend otherwise."

Most legal professionals have come to grudgingly accept the system, warts and all. But that acceptance seems based more on practicality than principle. In 1975, the Law Reform Commission of Canada called plea bargaining "something for which a decent criminal justice system has no place." By 1989, faced with a system bogging down under its own weight, its position had completely reversed: "plea negotiation is not an inherently shameful practice," the commission concluded. Most legal professionals concede that rampant plea bargaining plays havoc with legal statistics, as defendants are routinely overcharged and end up convicted of lesser offences. Most even agree that prosecutors have too much leeway in the games they can play to extract guilty pleas, such as withholding potentially exculpatory evidence - a tactic sanctioned by the U.S. Supreme Court in 2002. Still, they say, the courts would grind to a halt without plea bargains.

But the legal and moral questions get even murkier when the defendant in question is not only giving up their right to a trial, but is also offering up evidence to help the state convict another, less co-operative defendant. Such was the case with Karla Homolka, who testified against her former husband Paul Bernardo in the kidnapping rape and murder of two Ontario schoolgirls in the early 1990s, serving just 12 years for the horrific crimes she helped perpetrate. The question for lawyers and judges is this: when the risks of going to trial are so huge that a guilty plea seems far preferable, how reliable is the testimony extracted under threat?

And the threat can be enormous. Consider the case of Robert H. - an unidentified man whose case was first described in a 1994 paper for the University of Chicago Law Review by Albert Alschuler and Andrew Deiss. According to the authors, Robert spent six months in the early 1990s in an Atlanta jail without any formal charges before meeting with a public defender. On the day she met him, she told him he'd been charged with a felony, but if he pleaded guilty he could go home that day because of the time he'd already served. If he pleaded innocent, he'd be kept in custody for at least another year awaiting trial. Not surprisingly, Robert pleaded guilty. Only later did authorities realize that due to a bureaucratic error, he'd been mistaken for someone else and should never have been arrested, let alone convicted.

Robert H.'s case illustrates Langbein's central objection to the coercive nature of such plea bargains. "If you let me, the prosecutor, increase the sentencing disparity [between a guilty plea and a guilty verdict] enough, I can get anyone to concede guilt to almost anything," he says. "Suppose I've got 20 bishops ready to testify that I didn't overstay the parking meter. But the choice is plead guilty, pay a fine or face a possible death sentence. What do you think? I plead guilty."

If Robert H. could be strong-armed into bearing false witness against himself, defence lawyers ask, why should we believe that someone like David Radler, choosing between the threat of life in a U.S. prison or 29 months in a cushy Canadian facility, wouldn't opt to bear false witness against someone else? These bargains are especially dangerous in white-collar cases, Langbein says, because formerly successful executives face an overwhelming temptation to tell prosecutors exactly what they want to hear.

"The problem is, many of the laws these people are being prosecuted under are vague, and are not understood to be breaches of the law. Then the prosecutor comes along and says, I'm going to press charges and put you in the slammer - and in the United States, because of our sentencing savagery in such cases, that means forever and ever - unless, that is, you agree to incriminate yourself and whoever it is I really want to nail - whether that's Ken Lay or Jeff Skilling or whoever." Both Canada and the United States are based on a legal tradition that envisions a jury of lay people as a check against potential abuses of power by the state. But plea bargaining concentrates all of that power into the hands of individuals who are, in the U.S., politicians, and in Canada, civil servants.

"What it does is defeat the age-old wisdom that led us to divide the charging and investigative function on one hand from our determinative and sentencing functions," Langbein says. "What's happened is the prosecutor has combined all those functions in one set of hands: he is the investigative officer, the prosecutorial officer, the determinative officer and the sentencing officer." Police, judge and jury in one incredibly powerful office.

The architects of our democracies would have blanched at that kind of centralized power, but it has undeniably yielded efficiency. Most of the time, it even manages to yield something resembling justice. But is it a wise decision to trade the liberties and rights offered by our constitutions for the sake of expediency? Just as importantly, are the compromises required to entrench such a system morally defensible? Perhaps it'd be best to ask the petty criminal spending his life behind bars in Kentucky for forging a US$88.30 cheque. Or the admitted child killer now free and living with her own child somewhere in Quebec. Or better yet, if the Hollinger accused are sent to jail for decades, ask David Radler, in two years' time, when he's back running his little newspaper empire and spending weekends by the pool in Palm Springs.

Maclean's July 9, 2007