Posted on
November 3, 2014 in
In 2013, while 8 percent of all federal criminal charges were dismissed (either because of a mistake in fact or law or because the defendant had decided to cooperate), more than 97 percent of the remainder were resolved through plea bargains, and fewer than 3 percent went to trial. The plea bargains largely determined the sentences imposed.
While corresponding statistics for the fifty states combined are not available, it is a rare state where plea bargains do not similarly account for the resolution of at least 95 percent of the felony cases that are not dismissed; and again, the plea bargains usually determine the sentences, sometimes as a matter of law and otherwise as a matter of practice. Furthermore, in both the state and federal systems, the power to determine the terms of the plea bargain is, as a practical matter, lodged largely in the prosecutor, with the defense counsel having little say and the judge even less.
Jed S. Rakoff, Why Innocent People Plead Guilty.
What do the numbers look like in Harris County? From November 2013 to October 2014 there were 31,076 felony cases disposed of (excluding probation-revocation cases) in the county. ((Numbers are from the Office of Court Administration.)) Of those, 5,501 were dismissed. Of the 25,575 undismissed felony cases, 25,205 (98.6%) were resolved with guilty pleas (which might have included plea bargains or might have been “open” pleas with no agreed punishment).
But Rakoff’s chosen statistic—percent of undismissed cases that are tried—doesn’t tell the whole story. Of the 5,871 (18.9%) of cases that didn’t end in guilty pleas in Harris County, 5,582 (95.1% of non-pleas, 18% of all dispositions) were wins for the defense—mostly dismissals, ((Though some of those dismissals don’t count for much, since they were consideration for pleas to other charges.)) but 81 acquittals.
Rakoff implicitly writes off those dismissed cases as inconsequential. They are not. There are 22 courts trying felonies in Harris County. If each of them tried a case to a jury a week with two weeks off a year they could try 1,100 cases. This is a theoretical maximum—that trial pace would crush most judges. If 5,871 defendants refuse to plead guilty in a year, at least 4,771 of their cases will be dismissed because of sheer numbers.
When occasionally some naive young lawyer proposes that the defense bar shut down the system, he doesn’t realize that we are already doing it; as long as at least 1,100 people are refusing to plead guilty, each additional defendant who doesn’t plead forces the State to dismiss someone’s case. It might not be that defendant’s case, but something has to give.
Almost every case I’ve ever had dismissed was dismissed after my client rejected a plea offer and I had prepared for trial. Many of them were dismissed on the eve of trial, or with a jury in the hall. The 5,501 dismissals in Harris County were not “because of a mistake in law or fact or because the defendant had decided to cooperate,” as Rakoff describes dismissals in federal court. Sure, in a few of them the State had decided that they had gotten it wrong—charged the wrong guy, or the right guy with the wrong thing—but most of those cases were dismissed because the defendant refused to plead guilty and the State decided that its time would be better spent elsewhere.
Rakoff’s experience is in federal court, where small numbers of cases are dismissed, and where the sentencing guidelines, by rewarding early guilty pleas, discourage defense brinkmanship and encourage government brinkmanship. It’s easy and convenient to write off those few dismissals as prosecutors doing what the law or facts require, or rewarding cooperators. Closer to earth, where most criminal prosecutions actually take place, ((In 2012 the Department of Justice filed charges against 85,621 defendants nationwide—fewer than were filed in L.A. County and Harris County combined)) the dynamic can be quite different. Not that the federal system doesn’t need reform to remove the concentration of power from the hands of petty functionaries, but the picture drawn in federal court does not represent the rest of the country. The dynamic is different in Harris County, at least.
Harris County isn’t a solid analogue to federal courts. But even if it was, the point you make, that the courts would be swamped if defendants refused to plead and demanded a trial, thus forcing dismissals en masse, doesn’t scale. It would work for a while, but the system would adjust and accommodate the tactic, whether with more judges and courtrooms, shorter trials and ever-diminished effective due process, or in ways we can’t imagine now.
The adage, “be careful what you ask for as you just might get it” comes to mind. The one thing that seems remarkably unlikely is that it won’t be worse than what we have now.
If the system could convict more people with “more judges and courtrooms, shorter trials and ever-diminished effective due process, or in ways we can’t imagine now” then why doesn’t it do so now? There must be some forces — political opposition to increased incarceration, judicial support for due process, budget constraints, I don’t know — that keeps the system from growing even worse than it is. If plea bargaining was reduced, the system might adapt to try to maintain the incarceration rate (or whatever it’s doing) but it seems likely that the constraining forces would prevent it from fully returning to its former state.
Inertia. If it ain’t broke, don’t fix it. Plus, you give the system too much credit, as if anyone thinks too much about it if they don’t have to.
But then, if we awake a sleeping giant, it will react.
Dear Scott,
I thought you should know that some illiterate asshole is commenting using your name.
Love,
Mark
Dammit, do something about that bastard then!
I’m ignorant: does “dismissed” always imply “with prejudice”?
No. Rarely. But dismissal is at the whim of the State, so it’s unusual for the State to dismiss a felony and then refile.
[…] Let’s say you manage to emerge from your interrogation panic-induced-false-confession-free. If you’re among the lucky percentile of people who can afford a defense lawyer, good for you! You’ll likely see your day in court. For everyone else, you’ll be assigned a public defender who isn’t given enough time to prepare a case and knows significantly less about your case than the prosecution. These attorneys often don’t even think they can win, so they may not even try. Instead, they’ll do their damnedest to convince you to plead guilty in exchange for a lighter sentence — and 97 percent of people do. […]
[…] wrote on this topic some years ago, here. My sense then was that the slow death of the jury trial in federal criminal cases did not reflect […]