Crime & Federalism

I was confused after reading Norm's post on plea bargaining, below.  There he noted that in Connecticut, a person who pleads guilty under the Alford doctrine (named after Alford v. North Carolina, the Alford docrine recognizes that courts may accept the plea of a defendant who asserts his innocence) may later be required to later admit his "guilt."  I had always thought of Alford as a pro-individual rights opinion.  My understanding was that it recognized an innocent person's due process right to plead guilty. Boy, was I wrong.

At issue in Alford  was this: Can an innocent person voluntarily plead guilty to a crime he didn't commit?  The answer, in reality, is of course not.  An person cannot voluntarily plead guilty to a crime he didn't commit anymore than a person can voluntarily hand over his wallet to a mugger.  An innocent person who refuses to plead guilty and is later convicted can face penalties up to ten times greater than if he were convicted of trial.

Yet the Supreme Court held that an innocent person can voluntarily plead guilty to a crime he didn't commit.  Fair enough, I suppose.  If Alford stood for the proposition that a person has a due process liberty right to bargain away his trial rights, then Alford would seem like a reasonable enough opinion.  But that's not what Alford says.  Instead, the Alford Court concluded:

The States in their wisdom may [abolish the Alford doctrine] and may prohibit the practice of accepting pleas to lesser included offenses under any circumstances.

This is a thumb screw.  It gives the state the power to decide whether or not it wants to convict innocent men.  It holds that due process permits, but does not require, Alford pleas.  In other words, Alford gives all of the power to the government.  Of course, Justice White, the hero of civil liberties that he was, notes:

The prohibitions against involuntary or unintelligent pleas should not be relaxed, but neither should an exercise in arid logic render those constitutional guarantees counterproductive and put in jeopardy the very human values they were meant to preserve.

When an evil person shows cries, we call those crocodile tears.  When someone like Justice White (joined, of course, by Warren Burger) uses the rhetoric of human liberty to support a patently pro-government opinion, what should we say of his words?

My post on plea bargaining below reminded me of Judge Ralph Adam Fine's (proper) approach to plea bargaining:

During my nine years as a trial judge, I had several defendants who wanted to plead guilty even though when I then asked them to tell me what they did, responded with stories of innocence. When I asked them why they were trying to plead guilty, they all told me that they had been threatened with harsher penalties if they insisted on going to trial. In rejecting their pleas, I told them that we had enough guilty persons to convict, and that we did not need to dip into the pool of the innocent.

In each of the instances, we went to trial and the defendants were acquitted.

Judge Fine proves that plea bargaining is guilty beyond a reasonable doubt in an excellent article he wrote for the Federalist Society; the article is located here (large .pdf).

Norm's post below reminded me why I loathe plea bargaining.  Plea bargaining convicts the innocent and frees the guilty.

How does it free the guilty?  As Norm noted, his client was charged with rape and kidnapping.  These are very serious offenses, and if Norm's client had indeed committed these crimes, he should have spent a lot of time in prison.  He should not have walked home with a misdemeanor non-slap on the wrist. 

How does it convict the innocent?  It the prosecutor was willing to reduce rape and kidnapping charges to misdemeanor assault, what does that say about the prosecutor's case?  It sure seems like the prosecutor was not very confident that he could meet his constitutional obligation to prove his case beyond a reasonable doubt.  Given that I'm privy to the details of the case, it's my opinion the prosecutor could not have proved his case by a preponderance of the evidence.

Although Norm's client was innocent, he prudently pleaded guilty.  Then why would an innocent person plead guilty?  That's easy.

If Norm's client had gone to trial and lost, he would have been sent to prison for several years and placed on a sex offender registry for the rest of his life.  If Norm's client had won, what would have have gained?  Nothing.

Sure, the client could have claimed he was vindicated, but that isn't worth the paper the jury's verdict is printing on.  Insiders will know that a misdemeanor plea to rape and kidnapping charges is vindication.  Outsiders will always say, even of an acquitted man, "Well, he must have gotten off on some technicality."

When it comes to plea bargaining, an innocent defendant has nothing to gain and everything to lose.  It's a disgusting part of criminal justice system that leads to more wrongful convictions than any crooked cop or incompetently-run crime laboratory.

Plea bargaining is the pits. You wait years for trial, prepare a defense, put on your war paint, walk into court, and then you are offered a deal so sweet you cannot refuse.

Consider the case of X. He was charged with kidnapping and multiple counts of rape. A conviction would yield mandatory time, and plenty of it. But he unwaveringly declares his innocence.

It all started with two adults well past their prime "hooking up" on line. She appeared at X's home, arriving so eager for play that she was not even wearing shoes. Accounts of what happened that evening vary.

When she was stopped by a police officer for eratic driving later in the evening, she cried rape. X gave a statement that she arrived ready, willing, able, and even hot to trot. There was some give and take about the boundaries of this libidinal encoutner. X said she left abruptly after an encounter with, well, er ... a sex toy.

So we are ready for trial. Consent is the defense. The judge urges a deal and the state relents. A suspended sentence, a misdemeanor charge, no sex offender registry, no sex offender treatment, not even a plea to a sex offense. The next best thing to an acquittal.

The client balks. He is innocent. But X is also cautious and knows not to gamble with what he cannot afford to lose -- his liberty.

The court conducts a plea canvas. Has anyone forced you, the judge asks? X stumbles. He feels extorted all right. Extorted by a lie. The canvas continues and the plea is accepted.

The court finally enters orders as to seized property. Computers go back to my client. Clothing, destroyed. And what of the dildo?

"We donate it the victim for use as she sees fit," I say. Both court and prosecutor show me scorn and order it destroyed.

I know, I know, I shouldn't have said that. But my client needed something to make the plea feel like a victory.

Plea bargaining is one of the criminal law's dirty little secrets. The public doesn't see it. Indeed, the public is barred from the judicial chambers in which deals are cut. But not so advocates for victims. Consider the following case.

My client was trolling the Internet one night for companionship. A woman responded, and faster than you'd think, she hopped in her car and agreed to a little, er, tete-a-tetes, to take place at my client's home. Two middle aged strangers behind closed doors.

Well, the evening progressed in a manner not so remarkable. Wine, talk, and then a little hanky panky. The presence of a dildo only heightened the anticipation. And then she panicked, and fled from the client's home; disheveled, a little woozy, and driving eratically. When stopped by a cop she explained, of course, that she had just been raped. My client was arrested and now faces charges of sexual assault in the first degree.

This is what defense lawyers call a defendable case. The obvious issue is consent. Everyone knows it, including the judge and prosecutor.

The judge suggests my client plead to a sex assault misdemeanor with a suspended sentence. I'm listening. Then the victim's advocate pipes up. "The victim wants sex offender registration," she says. "Is she gonna register, too?" I ask. "She sounds like a whack job." The advocate is amused, but no more.

I make clear my client's position. No registration. And then I ask the obvious question: What's the victim's advocate doing in chambers? Victims have a right to be heard under our state constitution. Does that mean they get a right to plea bargain? Or that we have to heed the demands pouring forth from hearts full of pain and hatred?

It's crazy, this kowtowing to victims. More than a century ago we abandoned private prosecutions in favor of something more professional. Now we are giving the courthouses back to rage.

We're taking this case to trial. It's scary. Things can go wrong in any trial. But somewhere along the way I'll be sure to ask this woman just what she thought was doing when she swapped emails and arrived at my client's home late one evening. I won't take "selling Avon" for an answer.

The MSM and blogosphere are buzzing over Kozlowski's and other white collar defendant's sentences.  They are arguing that these sentences are too harsh.  In making these arguments, they're missing the most important reason for stiff sentences.  The sentences must be harsh, though not to deter or punish.  Rather, the sentences must be harsh to keep white collar defendants from going to trial.

All trials carry the trial tax.  If a defendant demands a jury trial, he will receive a much harsher sentence than if he plea bargained away his rights.  As one judge told me: "I tell the defendants that if they order the full menu, they pay the full price."  Plea bargaining is unconstitutional, but it is how over 95% of cases are resolved.  Plea bargaining is needed, and thus tolerated.  We failed to heed C.S. Lewis, who quoting Milton, wrote: "'Useful,' and 'necessity' was always 'the tyrant's plea'."

If there weren't harsh sentences, white collar defendants would go to trial, since they'd have nothing to lose.  And since they can afford top-flight counsel, they'd often win.  It is unacceptable for white collar defendants to escape the trial tax.  Sentences like those in the Kozlowski case will remind defendants to think twice before going to trial.

Dissenting in Locke v. Davey, Justice Scalia wrote:

When the State makes a public benefit generally available, that benefit becomes part of the baseline against which burdens on religion are measured; and when the State withholds that benefit from some individuals solely on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax.

This got me thinking about plea bargaining.  Let's substitute a few words:

When the State makes a [charging of criminal offenses] generally [applicable], that [decision] becomes part of the baseline against which burdens on [the exercise of Sixth Amendment rights] are measured; and when the State withholds that benefit from some individuals solely on the basis of [a defendant's assertion of his constitutional right to a jury trial], it violates the [Sixth Amendment] no less than if it had imposed [additional penalities].

The scholarship in Davey and plea bargaining practices seem apposite.  Prosecutors do follow charging and sentencing guidelines.  These guidelines (and the subsequent sentences judges impose) are modified only when the defendant asserts his right to a trial by jury.  Thus, under Scalia's Davey dissent, plea bargaining practices could be proved unconstitutional if a defendant could establish that x-number of similarly-situated defendants were charged with certain crimes (and sentenced to y-term of years) where as a defendant who asserted his jury trial rights was charged more harshly, or sentenced to a longer prison term.

Of course, I doubt Scalia wants Davey's wine poured into plea bargaining's bottle.  But his approach to what is a burden under the Free Exercise Clause should be instructive in our analysis of what is a burden under the Sixth Amendment's jury trial guarantee.