Co­er­cive plea bar­gain­ing is a na­tional em­bar­rass­ment

Richmond Times-Dispatch - - OPINIONS - Ge­orge Will Con­tact Ge­orge Will at: georgewill@ wash­post.com © 2020, Wash­ing­ton Post Writ­ers Group

Per­haps he lied in an in­ter­view with FBI agents. We must, how­ever, take their word

for this, be­cause, in ac­cor­dance with an ar­chaic and self-serv­ing prac­tice, the agents

did not record the in­ter­view.

MWASHINGTO­N ichael Flynn, who was Pres­i­dent Don­ald Trump’s na­tional se­cu­rity ad­viser for 24 days and who has been en­tan­gled in the crim­i­nal jus­tice sys­tem for 40 months, pleaded guilty of ly­ing to FBI agents and now re­cants that plea. We shall re­turn to Flynn be­low, but first con­sider Habeeb Audu, who is re­sist­ing ex­tra­di­tion from Bri­tain to the United States, where he is charged with var­i­ous fi­nan­cial crimes.

The Cato In­sti­tute’s Clark Neily was asked by Audu’s lawyers to write, in ac­cor­dance with Bri­tish ex­tra­di­tion prac­tices, a dec­la­ra­tion — an “ex­pert re­port” — about the risk that Audu would not have a mean­ing­ful right to a fair U.S. trial. Neily, a mem­ber of the Amer­i­can Bar As­so­ci­a­tion’s Plea Bar­gain­ing Task Force and head of its sub­com­mit­tee on im­per­mis­si­bly co­er­cive plea bar­gains and plea prac­tices, con­cludes that ex­tra­di­tion would “guar­an­tee” Audu’s sub­jec­tion to a process that “rou­tinely” co­erces through plea bar­gain­ing. So Audu prob­a­bly would ex­pe­ri­ence “in­tol­er­a­ble pres­sure de­signed to in­duce a waiver of his fun­da­men­tal right to a fair trial.”

Plea bar­gain­ing is, Neily ar­gues “per­va­sive and co­er­cive” partly be­cause of to­day’s “trial penalty” — the dif­fer­ence be­tween the sen­tences of­fered to those who plead guilty and the much more se­vere sen­tences typ­i­cally im­posed af­ter a trial. This penalty dis­cour­ages ex­er­cis­ing a con­sti­tu­tional right. A de­fen­dant in a com­puter hack­ing case, Neily says, com­mit­ted sui­cide dur­ing plea bar­gain­ing in which pros­e­cu­tors said he could avoid a trial con­vic­tion and sen­tence of up to 35 years by plead­ing guilty and ac­cept­ing a six-month sen­tence.

The pres­sure pros­e­cu­tors can ex­ert — pil­ing on (“stack­ing”) crim­i­nal charges to ex­pose de­fen­dants to ex­treme sen­tences; pre­trial de­ten­tion, nearly al­ways in squalid con­fines; threat­en­ing to in­dict fam­ily mem­bers — can cause in­no­cent peo­ple to plead guilty in or­der to avoid risk­ing pro­tracted in­car­cer­a­tion for them­selves and loved ones. Such pres­sures ef­fec­tively trans­fer sen­tenc­ing power from judges to pros­e­cu­tors. How ex­actly are these pres­sures morally prefer­able to those that used to be ad­min­is­tered by trun­cheons in the back of po­lice sta­tions?

These are rea­sons why of the nearly 80,000 de­fen­dants in fed­eral crim­i­nal cases in fis­cal 2018, just 2% went to trial and 90% pleaded guilty. In 2018, 94.7% of crim­i­nal con­vic­tions were ob­tained through plea bar­gains in the South­ern District of New York, which is seek­ing Audu’s ex­tra­di­tion.

Pros­e­cu­tors have dis­cov­ered that al­most any de­fen­dant can be per­suaded to plead guilty, given suf­fi­cient in­duce­ments. This dis­cov­ery has been partly a re­sponse to the fact that the over-crim­i­nal­iza­tion of life, and par­tic­u­larly Congress’ in­de­fen­si­ble mul­ti­pli­ca­tion of fed­eral crimes, means that oth­er­wise the court sys­tem would, in the late Supreme Court Jus­tice An­tonin Scalia’s words, “grind to a halt.”

There is, Neily says, “abun­dant, undis­puted ev­i­dence” of in­no­cent de­fen­dants plead­ing guilty. Of the 367 con­victs ex­on­er­ated by DNA anal­y­sis to date, 11% had pleaded guilty. Var­i­ous stud­ies have con­cluded that be­tween 1.6% and 8% of de­fen­dants who plead guilty would not have been con­victed in a trial. The low­est es­ti­mate would mean that in 2009, there were more than 1,250 in­no­cent peo­ple in­car­cer­ated in the fed­eral sys­tem alone, and many mul­ti­ples of that num­ber in state sys­tems.

Re­spond­ing to Neily’s dec­la­ra­tion, the Jus­tice De­part­ment com­pla­cently as­serts that U.S. law guar­an­tees fair tri­als: Co­er­cive plea bar­gains are for­bid­den, there­fore they do not oc­cur, so in­no­cent peo­ple do not plead guilty. Move along, noth­ing to see here.

The DOJ should con­sult Jed S. Rakoff. In a 2014 es­say, “Why In­no­cent Peo­ple Plead Guilty,” he wrote that since the last third of the pre­vi­ous cen­tury, a fair trial — an ad­ver­sar­ial process, con­ducted in pub­lic be­fore a neu­tral judge and a jury of the de­fen­dant’s peers — has be­come “all a mi­rage.” Rakoff is a se­nior judge on the U.S. District Court for the South­ern District of New York.

Now, about Flynn. Per­haps he lied in an in­ter­view with

FBI agents. We must, how­ever, take their word for this, be­cause, in ac­cor­dance with an ar­chaic and self-serv­ing prac­tice, the agents did not record the in­ter­view. They wrote their un­ver­i­fi­able ver­sion. This, al­though all FBI agents carry record­ing ca­pa­bil­i­ties in their smart­phones. Af­ter pros­e­cu­tors threat­ened to in­dict his son, who was his busi­ness part­ner (re­mem­ber the ax­iom: “A pros­e­cu­tor can get a grand jury to in­dict a ham sand­wich”), a co­erced and im­pov­er­ished Flynn, fac­ing many mil­lions in le­gal bills, and later sell­ing his sub­ur­ban Wash­ing­ton house, pleaded guilty.

Per­haps Flynn now re­grets lead­ing “Lock her up!” chants at the Repub­li­can Na­tional Con­ven­tion. All Amer­i­cans should re­gret the need for Neily’s many pro­posed re­forms, in­clud­ing a DOJ Of­fice of Plea In­tegrity to scru­ti­nize co­er­cive plea bar­gain­ing, a na­tional em­bar­rass­ment.

THE AS­SO­CI­ATED PRESS

For­mer Na­tional Se­cu­rity Ad­viser Michael Flynn (cen­ter) leaves the fed­eral court­house in Wash­ing­ton, D.C., with his at­tor­ney, Sid­ney Pow­ell (left).

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