University of North Carolina law professor Carissa Byrne Hessick tells a very curious story in her new book, Punishment Without Trial: Why plea bargaining is a bad deal.” Carissa is in New York City to attend a criminal law conference at NYU, one I too was asked to speak at but begged off. She stayed a day extra in New York to spend with prolific twitter activist, Scott Hechinger, who took her to a Brooklyn criminal courtroom, where he schooled her.
“In this courtroom, the rule is no talking, no eating, no drinking, no using your cell phone, and no reading.” This message was delivered to me while I was sitting on a bench in a courtroom in Brooklyn one April morning. The message was delivered in a low voice by Scott Hechinger, an attorney with the Brooklyn Defender Services, who was sitting on the bench next to me.
“Why no reading?” I asked.
Scott’s eyes got a little bit wider, as if he was excited that I understood a point that he was trying to make. “Exactly!” was all that he said in response.
For those of you who have never practiced criminal defense law, you might share this confusion. And if you do, you will likely find Carissa’s bool informative and the anecdotes she shares illuminating. The book provides a good survey of the myriad failings of plea bargaining, from its use as a coercive weapon to get people charged with misdemeanors out the next day even though they’re innocent rather than to languish in jail for a year (or three) awaiting trial, to the deprivation of society’s opportunity to watch “justice” being done.
The punishment, as she rightly notes, can be the process. And while most defendants have earned some punishment, it’s not supposed to be imposed before conviction when they remain presumptively innocent.
But if you know the answer to why reading is prohibited in courtrooms, then there won’t be much new in the book, and you’re likely to bristle at the anecdotes as I did. The book opens with a story about Damian Mills, an innocent man charged with murder who cops a plea, as his court appointed lawyer advised him to do. Carissa met with Damian after he had served about ten years and was released, and ponders why a man innocent of murder would do such a thing rather than go to trial? If you know what I’m talking about, you just muttered “whoa” under your breath.
This isn’t the question experienced criminal defense lawyers ask, either of their clients or themselves, and certainly not of the choice made by others. We know these things happen, although a defendant professing innocence when, maybe, he’s not quite so innocent is not exactly surprising either.
It’s not that we are unaware of the fact that defendants take pleas for a great many unsavory and unprincipled reasons, and any lawyer who has done this for a while has heard them all. It’s that the truly innocent are the outliers. It’s that the wrongs of plea bargaining are very much wrong, but so too is the fantasy that there is some vast number of pure and innocent defendants caught in this plea bargaining nightmare. As Murray Kempton once write, “There they go again, framing the guilty.”
The alternative reality is that innocent people, and people who are guilty but not quite as guilty as the prosecution contends, get convicted not by plea, but only after trial. Winning at trial is hard, a lot harder than someone who has never tried a felony to verdict before a jury can imagine. The cops may be full of it, but their testimony is smooth and credible. A rat or two testifies for his life, at the expense of your defendant, but he’s sufficiently prepped to reply to the obvious challenge that he’s lying and pointing at your client to save his own butt. And when your turn comes along, you’ve got nothing. There’s no defense. no alibi, and your client would almost certainly testify his way into a grave, even if the judge didn’t rule some of his worst priors were admissible on cross.
Do people really believe that a defendant taking the witness stand and simply denying he did it is all that’s needed to win at trial? Do people really think that’s how it works?
This is the aspect of plea bargaining that doesn’t appear in the book. The stories Carissa tells are wonderful, carefully selected stories to make a point, and I’ve no doubt they are legitimate and honestly retold, but they’re only stories from one side and only told to the extent they serve to illustrate a point. These are the stories that guys like Hechinger twit about, the sad defendant who only stole a loaf of bread to feed his hungry children. Nobody tells the story of the sad defendant who stole the 90-inch flat screen TV and Air Jordans to feed his children, caught on store video.
And that’s pretty much what this book reflects, a fair and well-told litany of that cadre of defendants for whom plea bargaining stole their innocence. He exists. We’ve all met him and there is no criminal defense lawyer who hasn’t had the painful discussion about why he, innocent though he proclaim himself to be, should consider pleading guilty. We’ve held his hand and watched this tough guy cry. But we can’t afford to believe in unicorns prancing on rainbows because we’ve also had the talk with the guy after the jury returns its verdict of guilty, and after he’s sentenced to forever in prison, when there’s no options left.
Not because plea bargaining doesn’t suck or we don’t want to go to trial. We want to. We love trial. Trial is fun and there’s no greater thrill than crossing a cop and making him cry. But because it’s not about us. Even when a plea bargain is a win, and it often is, it feels like a loss. And we hate it, the feeling that we would have loved to take the case all the way and watch as the prosecutor balled up in the corner and started to quiver and drool when the jury returned with a two-word verdict. But we also know the chances of that happening can be slim to none, and sometimes none to worse than none, when the testimony reveals that our client isn’t just guilty of the crime charged, but a particularly bad person who also happens to be guilty.
To be fair, Carissa points out in her conclusion that without plea bargaining, the extremes of sentencing would be imposed on every defendant convicted after trial. Without changing the unduly harsh sentencing scheme, eliminating plea bargaining would mean that everyone convicted would end up with an excessive sentence. That isn’t a better deal. She even notes that Hechinger doesn’t want to get rid of plea bargaining, not because of its myriad evils but because it would crush the vast majority of defendants to pay the trial tax without being offered the plea discount.
In the book, the narrative unceremoniously flips from state court misdemeanors to federal felonies. This raises an important issue, as the two are completely incomparable. The dynamics of a guy in jail on bail for a misdemeanor-level pot bust isn’t remotely in the same as that of the last defendant in a 37 defendant conspiracy case charged with moving 193 kilos of weed.
The failure to explain the difference in circumstances is something I raised with Carissa during a telephone conversation we had before the book. Not only does she not draw the necessary distinctions between state misdemeanor cases, state upper-level felony cases and federal cases, but she uses anecdotes interchangeably as if the nature of these prosecutions are the same. It made my head hurt, though it conformed to the stories told by the passionate baby public defenders upon whom Carissa relied for a deeper understanding of the evils of plea bargaining, but who never stepped foot in a federal court.
If you’re interested in subjects like criminal law and why the system can be so brutal on the accused, the book has a great deal to offer. It’s very well written, almost chatty at times, and includes some fascinating history behind our current state of affairs. It provides vivid descriptions and examples of the punishment of having to take the ride, particularly from the perspective of the indigent clients of public defenders who have the good fortune to only represent the innocent or the sympathetic. Your belief system won’t be assaulted by defendants who earn their livelihood committing crimes, who have no particular concern about how their violence harms others and for whom the legal system, and retained lawyers, are just a cost of doing business.
But if you’re a legal academic, there is nothing in here that you haven’t already read. You know pleas are coercive to people who can walk out today if they just plead out rather than await their trial. You know the costs associated with having to appear in court for every calendar call, even though it means you have spend subway fare to get there and miss a day’s work. You know that criminal courtrooms in Brooklyn feel more like restrooms, as Hechinger describes them, although there is no consideration of how they got that way. Hint: The judge doesn’t come down off the bench after court is over and spread filth around the room.
And if you’re a criminal defense lawyer, the stories are familiar, as they’re the ones our clients tell us until we give them the stink eye, tell them to cut the crap and tell us the truth so we’re not the stupidest person in the courtroom. Cops lie? Sure they do, but can we prove it? Can you risk it? And before anybody gets too teary-eyed at the thought of the police officer fudging the significant but tangential details, let’s not forget that you did have the murder weapon in your car, just as your co-defendant who ratted you out said you did.
During my chat with Carissa, I sought to make it clear that plea bargaining is the worst possible system, except for our system without plea bargaining. Trying cases where you don’t stand a chance, where your defendant will get whacked at sentence, often makes copping a plea the far better alternative than getting your defendant life plus cancer for the hubris of demanding a trial because you can. Theory is great until reality bites you in the butt.
But what if he’s innocent, you ask? Think of it this way: Is it better that an innocent man like Damian Mills is out in ten years after a plea than dies in prison doing a life sentence? Ironically, Carissa ends the book with the answer to her question of Damian, that the reason he pleaded guilty despite his innocence was because he had no faith his lawyer could win at trial. What is left unconsidered is whether any lawyer could have beaten the charge and Damian Mills wouldn’t have been around to tell Carissa his story because he would have been on death row. That’s what lawyers have to face, and why this book wasn’t written for those of us who know what the nasty alternative to plea bargaining would be in the real world.
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