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Plea Bargaining, Informed Consent, and Innocent Sheeple

Plea bargaining should be outlawed.

There. I said it. Now you know where I stand.

At the same time, I am a criminal defense attorney who represents people who are often unfairly targeted and unfairly charged in a system that is fundamentally unfair.

Unfair, wrong — hell, let’s call it what it is: EVIL.

But you like it that way.

There is a minor ripple in the blogosphere right now. It was caused by an article in the New York Times: a call to “Crash the System” by having everyone refuse plea bargains and go to trial.

To read the blogs of some of my friends, you’d think some idiot attorney with nothing to lose came up with the idea.

That’s not the case. The author of the New York Times article, a civil rights attorney with a book out which itself constitutes an incredibly-powerful indictment of our criminal system, though she clearly appears to support it, is not the woman who made the suggestion.

The woman was Susan Burton, who knows a lot about being processed through the criminal justice system.

Susan Burton is not an attorney. She is a victim of the system.

And she’s right.

Norm Pattis doesn’t think so.

Good criminal defense lawyers work to create options for clients in crisis. Plea bargaining is the dark work of the possible, done outside public view, with aims other than justice in mind. The suggestion that individual clients commit what will amount to individual and collective suicide to crash the system is a dangerous pipe dream. No decent criminal defense lawyer will entertain the thought. I am surprised Ms. Alexander did so.

Neither does my other friend, Gideon.

Because our clients are often guilty and more than that will be found guilty by juries. They will be sentenced more severely than if they’d taken a plea. That is reality. A reality that we, as lawyers, don’t have to live. In this pursuit of wreaking havoc on the system, thousands will end up in jail, their lives ruined, their families’ lives ruined. Our job, primarily, is to serve the interests of a client. There may be times when a client’s desires provide a forum to take a stand against the rigged system. But unless that happens, it is a disservice to suggest that we disregard the consequences of our holy struggle in pursuit of an elusive fix.

I’m going to disagree with both of them. As Bobby G. Frederick notes, apparently agreeing with Susan Burton the Victim of the System,

Some of us complain about the steady erosion of our Constitutional Rights – but how can we complain when no one exercises those rights? Use it or lose it. The norm across the country is to waive our constitutional rights, so why shouldn’t we lose them?

Both Norm and Gideon have some valid points. Both discuss the impact on the freedom of individuals who would fight the system — at least their freedom of movement. Both correctly point out that those who choose to fight for their rights will suffer.

It has ever been so. When the first white Americans — I can’t simply say “first Americans” since the first Americans fought both the British and the first white Americans, and they weren’t fighting to establish the U.S., but to protect themselves — fought to establish this country we’ve inherited from them, they suffered. Hell, they didn’t just risk their freedom: they risked their very lives.

But the suggestion of bringing the system to its knees — crashing the system — is not as crazy as my friends make it sound. I advocated a similar position regarding the juvenile court system in my area to change their policy of shackling all juveniles who came to the court. Before I woke up and — in response to a comment a judge made about not allowing me to do in his court what I’d done in others — drew a line in the sand, it did not matter if a juvenile was 10 years old and charged with a misdemeanor: if he came to the juvenile court, he was coming in shackles.

Once I woke up — once I got pissed off about it — we drew a line in the sand. I was not completely alone in this: other attorneys began doing it, too.

And the system came to a screeching halt. Partly because the court’s approach was ass-backwards, as is the norm with our prosecutors in black robes that run them, they continued allowing the sheriff to bring the kids to court in shackles, and we had to have an evidentiary hearing to get them released. This is exactly the opposite of what California law requires, but why the frack should a trial judge in Fresno, California, care what California law says?

At any rate, hearings that might otherwise have lasted between two and five minutes were suddenly taking anywhere from an hour-and-a-half to three hours to resolve. Again, this is because of the ass-backwardness of the judges, who had a policy of allowing the sheriff one hour after a challenge to try to invent a reason that might justify shackling. Add to that the time for the hearing and cases were not moving.

Today, the default policy in Fresno juvenile courts is reversed: juveniles are brought to court without shackles, unless there is some particularized reason such as fighting on the way to court to justify the shackles.

Nor did it take long to get there.

To be fair, there is a difference between what happened in the juvenile court system here in Fresno and what Susan Burton proposes. For one thing, the juveniles were not risking the same thing as those who would have to fight the plea bargaining system. In one of the shackling motions I handled, there were three co-parts (in juvenile court, we use the term “co-participant” instead of “co-defendant,” which is the term in adult courts; it’s supposed to indicate that the juvenile system isn’t as barbaric as the adult system). The attorneys for the other two co-parts refused to join my motion to remove shackles. As I mentioned, it prolonged things. In reality, they had nothing to lose, except their clients’ comfort and trust. But if I had lost, the only danger was that my client, like theirs, would have remained shackled. When I won, my client was unshackled, while theirs remained in shackles because they had not joined the motion, nor objected to the shackles.

But here’s a question to those attorneys who think their clients are better off with plea bargains: do you really have your clients’ informed consent to plead them out?

Informed consent means that you have fully and completely explained to your clients what will happen to them if they accept the plea agreement. You have a responsibility to ensure that they “get it,” too. None of this “here’s the offer from the district attorney if you take it you get to go home now butcannevervoteagainownagunagainrunforpublicoffice buyahousegetagoodjoboranyoftheotherthingsnormalhumanbeingstakeforgrantedinitialeachoftheseboxesandsignthis form” bullshit.

If you really believe what you say, Norm, you have to explain to your clients who will accept plea bargains other than the fabulous misdemeanor offer mentioned in your blog post what it means to be “marred for life as a felon.” (I don’t know if that was supposed to say “marked” or “marred.” Either one works here and “marred” works better, although you don’t normally hear it that way.)

Pay attention, Gideon, and you’ll notice that the idea did not “originate from the mouth of a non-practicing academic: one who operates only in theories and not in the harsh realities of being in the trenches.” It originated from the mouth of a woman who, unlike you, slogged through those trenches and lives with the consequences of it every day of her life. In discussing plea bargains, do you tell your clients the ways they will suffer — as she did — after the custodial portion of their sentence has been served?

How many people would fight, rather than take a plea, if they knew what the rest of their lives would be like because of their decision?

If you don’t explain what will happen after incarceration, you cannot claim to be looking out for your clients’ interests, because you don’t know whether you are, or are not.

My disagreement over whether the idea proposed is crazy — and possibly over what needs to be explained to people considering a plea “bargain” — notwithstanding, Norm and Gideon are right about this much: the risks are horrendous. For one thing, unless a goodly portion of people refuse plea bargains, they will simply suffer an extended incarceration period without any real benefit. Because as Michelle Alexander pointed out to Susan Burton — and as Norm, Gideon, Bobby, me, and thousands of other criminal defense attorneys would agree — well…

“The truth is that government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used,” said Timothy Lynch, director of the criminal justice project at the libertarian Cato Institute. In other words: the system is rigged.

Not only will those who fight back in the absence of an organized and concentrated effort to deliberately overload the system spend more time in prison, they will still suffer the post-incarceration consequences Ms. Burton suffered.

Sadly, the real reason Susan Burton’s suggestion is unlikely to succeed is because too many innocent people have been taught to accept the status quo as unchangeable. This includes those charged with crimes and those who advise them. No longer we, the People — the only appropriate label is “we, the Sheeple.”

This is exactly what the system depends upon. This is exactly what those in power have sought to shape.

And it is all they care about. I do not believe it is an accident that voting is one of the “disabilities” one suffers after a felony conviction. As another academic, Alexandra Natapoff, points out in “Misdemeanors,”[1] there are approximately one million felony convictions in the United States each year. Take away their voting rights and you’ve taken away their ability to fight back as society turns them into a permanently-exploited underclass.

Yet, stop. Think about that. Approximately one million felony convictions each year. And, incidentally, approximately ten-and-a-half-million misdemeanors a year.

Just how fast do you think the system will come crashing down if even a fraction begin to refuse plea bargains?

In the end, the choice is not for timid attorneys to make; the decision on whether or not to accept a plea agreement rests by law, as it should, with the individual client. It may be that, fully informed, a majority of our clients will voluntarily join their ranks, not bothering to fight even what may be unjust charges.

But that’s a choice each client — properly informed — has to make for themselves and not because their defense attorneys are squeamish about the outcome.

  1. Natapoff, Alexandra, Misdemeanors (February 24, 2012). Southern California Law Review, Vol. 85, 2012; Loyola-LA Legal Studies Paper No. 2012-08. Available at SSRN: