To plea or not to plea?

Much ink has been spilled on the plea deal offered by federal prosecutors to the President’s son, Hunter Biden. The agreement hashed out between prosecutors and the target’s counsel would almost certainly spare Mr Biden from any prison time in exchange for his guilty plea to two tax code misdemeanours and a felony charge of illegal firearm possession. Substantial criticism has befallen the deal for what many see as an unduly lenient package for the offspring of the Executive. That criticism, whether motivated by political animus or sober analysis, has some merit to it. For the time being, a federal judge has refused to “rubber stamp the agreement”, citing separation-of-powers concerns involving the broad immunity from prosecution offered to Mr Biden. In all likelihood, a more focused deal will be judicially approved in the coming weeks. 

Ironically, in the vast preponderance of cases, the plea “bargaining” process continues to wreak havoc on criminal justice and individual liberty in America, and it makes a mockery of the constitutional right to a fair and speedy public trial. Over 98% of federal indictments are settled by guilty pleas, with similarly horrifying statistics on the state level. Either prosecutors are remarkably proficient at zeroing-in on guilty people, or there is something pernicious that has been going on for the last fifty years. Dispensing with the necessarily arduous and defendant-protective trial by jury – a fundamental right secured by the Sixth Amendment – has opened the floodgates for mass incarceration. You do not get to a Nation with over 2,300,000 prisoners by affording them the “inconvenience” of a public trial by a jury of their peers; that trick can only be accomplished through prosecutorial malfeasance – what we can quite paradoxically call, “coercive bargaining”. 

Here’s an abridged sequence of how this travesty usually unfolds on a daily basis across the United States: (a) prosecutors arrest someone; (b) they tell them that if they insist on exercising their constitutional right to a public trial, they will “stack on” more serious offences – if the individual had any priors, even trifling ones, they could be charged under a “habitual offenders” statute, where it’s three strikes and you’re out; (c) what started out as an arrest for shoplifting a pack of biscuits can now lead to life in prison if the individual has the temerity to go to trial – if this seems fantastical and cooked-up, here: Lockyer v. Andrade, 538 U.S. 63 (2003); Ewing v. California, 538 U.S. 11 (2003); (d) alternatively, if the individual has no prior criminal history, and they feel that they have been wrongfully tacked with an offence, if they insist on vindicating their rights through a criminal trial, prosecutors can still play their ace: we’ll find things to add on. What could be a few months in prison can transmute into five years if you don’t play ball. Many people are not willing to roll the dice. Good criminal attorneys are beyond the reach of most ordinary Americans; the overworked, underpaid public defence lawyer will just probably tell you to accept the “deal” and move on with your life. Of course, any criminal conviction comes with a civic death; you become a lowly member of the Carceral State – good luck getting a job again. 

The Framers designed a Constitution with the singular obsession of diffusing governmental power and ensuring rigorous safeguards against arbitrary authority. Convenience at the cost of liberty was anathema to the Founding generation. So, what happened? On one side of the equation lies the exponential increase in criminal offences on the statute books, powered by the tragically misguided “War on Drugs” that began in the early 1970s. On the other side of the coin, is the Supreme Court’s singular failure to vindicate the guarantees of the Bill of Rights in the arena of criminal justice, that has given free rein to prosecutors and overzealous legislators to continue down this wretched path. In the morass of plea bargaining, the Court saw prosecutorial convenience as a plus, and without a hint of irony declared: “If every criminal charge were subjected to a full-scale trial, the States and the Federal government would need to multiply by many times the number of judges and court facilities.” – Santobello v. New York (1971). Surely though, America’s highest court could not bless the legality of prosecutorial threats of longer sentences should a defendant exercise their right to a trial instead of opting for a plea deal? The answer to that question was provided in 1978. In Bordenkircher v. Hayes, a five-to-four majority found no constitutional foul in the “give and take” of prosecutorial coercion. The defendant was charged with forging a check of $88.30, a charge that carried a two-to-ten-year sentence. During negotiations, the prosecutor offered to recommend to the judge a five year sentence if the defendant pled guilty. However, if the defendant elected to exercise his constitutional right to a jury trial, the prosecutor threatened to amend the charges to include a violation of the Kentucky Habitual Criminal Act, which would have subjected the defendant to a mandatory life imprisonment, due to his two prior felony convictions. Hence, the prosecutor’s own judgment that a five-year sentence was appropriate would transmute to life imprisonment for the audacity of going to trial and inconveniencing the state. 

Simply taking exonerations arising from DNA evidence, they have shown at least 15% of wrongful convictions from plea deals – because individuals were strong-armed by the government to plead guilty lest they risk a more exorbitant punishment. Indeed, the data bears out that defendants – both at the state and federal level – face sentences three times greater if they elect to go to trial. Utterly shameful. Juries are considered the bulwark of liberty, checking governmental abuse and overreach; the plea bargaining system eviscerates that fundamental guardrail against capricious state power. The right to trial by jury was so paradigmatic to liberty, that the Founding Fathers did not even have to debate it. As Alexander Hamilton wrote in Federalist No. 83, “[t]he friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury.” Even the Supreme Court – despite relegating it to a shadow status – acknowledged that the right to a speedy and public trial by an impartial jury is “the most fundamental of all freedoms.” Americans should not be threatened with punitive sanctions for exercising this bedrock right that their forefathers fought a Revolution to enshrine in the Federal Constitution. 

Back to Mr Biden, we see the flipside of the vast prosecutorial murkiness of the “plea bargaining” process. Behind closed doors, where transparency is lacking, the well-heeled and powerful can strike an unduly lenient deal with prosecutors to avoid trial, in cases where a jury would not be so sympathetic. In 2008, Jeffrey Epstein was handed the plea deal of the century for child sexual offences that could have landed him in prison for life. Instead he served thirteen-months in a work-release programme. It is taxing the credulity of the credulous to suggest that Mr Epstein would have been so generously assessed by a jury of his peers, should he have faced a full trial for these offences. Whichever way it cuts, the plea “bargaining” process reeks of an elementary injustice.