We Do Not Understand Our Criminal Courts

From today’s New York Times:

“…more than 35,000 people in New York City are jailed each year because they cannot make bail…[p]eople held in jail are more likely to plead guilty, two University of Pennsylvania studies show, not because they are more likely to be guilty but because that is often the surest way to get home more quickly…”. 8/7/2017 NYT Criminal Defendants Kept in the Dark

This phenomenon – pleading guilty not because one is guilty, but instead to avoid risking a long jail sentence that would destroy one’s life – is actually a reality of pre-trial detention in this country in all 50 states.

In at least 10 states, allowing evidence to be sprung upon defendants just prior to trial, as described vividly in today’s New York Times article, is particularly Kafka-esque. But it is actually just a microcosm of the plea bargaining system in place today throughout the United States of America.

The average person – even the typical progressive – is unaware of key aspects of this plea bargaining system, in part because television does a poor job depicting obstacles faced by the accused.

For example, for the mainly poor who are held on bail, conditions for those who plead guilty actually IMPROVE within jails once one has given up the right to trial. This provides a perverse incentive to plead guilty. This is true in most Massachusetts prisons.

Massachusetts used to have a DE NOVO system, that allowed a preliminary trial before a judge prior to a jury trial. This system not only more closely resembled what the average citizen believes our criminal justice system is supposed to be: a system in which one is innocent until proven guilty, it is also far more likely to unearth the truth.

This is because instead of simply relying on the facts as provided in the police report, which is what ultimately occurs in most cases today, the Commonwealth was required to test allegations, with real evidence, in a procedurally simple (and generally much briefer) judge trial, in which there was a chance to air both sides properly in open court.

At the time of the abolition of this two-step De Novo system, opponents said the system was too expensive, and it was wrong to give a defendant ‘two bites at the apple’.

What has happened, however, is that now nearly 98% of cases result in some variety of guilty plea in open court, either outright or what is called a continuation without a finding, or C.W.O.F. This requires the defendant to make a full admission to the version of events written down by a police officer, no matter the inaccuracies in the report, or lose the opportunity to recieve this C.W.O.F.

Speaking of Kafka, during each and every change of plea, the judge is required to read a colloquy which states in part, “has anyone forced you, pressured you, or offered you anything in return for making this admission?”

This is absurd. The entire system is structured to provide incentives for the defendant to change their plea to this C.W.O.F. Instead of facing a jail sentence or probation, the defendant has the opportunity to see their case dismissed at the end of an open period, usually a year.

Today, police and the prosecutors have fewer incentives to deep-six dubious cases, but this is not counted as waste. Yet in its wisdom, the Massachusetts legislature of the 1980s Reagan-era did count the alleged cost of the brief De Novo judge trials as waste.

There is deafening silence from progressives about bringing back the De Novo system. Maybe that should change.

Maybe it is time once again to put the blindfold back onto the symbol of justice, and to renew our pursuit of equal justice under law in our criminal justice trial system.

Maybe it is time to renew the progressive reform agenda of the late 19th, through the mid-20th century, in place of blind efficiency.