The authors say the pandemic changed the nation’s criminal justice system in two major ways.
When people are held in jail, they’re likely to accept quick release – even if it means admitting to something they didn’t do. (Caspar Benson via Getty Images)
By Shi Yan, David M. Zimmerman, Kelly T. Sutherland and Miko M. Wilford
The Conversation
Despite a constitutional right to a jury trial, more than 94 percent of criminal convictions in the United States result from guilty pleas, not jury verdicts. Even innocent people, those who did not commit the crimes of which they are accused, can plead guilty — and they do.
Given the lack of reliable data, it is extremely difficult to estimate what proportion of pleas are from innocent defendants. However, many researchers believe the proportion is significant. So far, the National Registry of Exonerations, a database that records all known exonerations of innocent defendants in the United States after 1989, has identified more than 580 cases in which innocent people chose to plead guilty.
Guilty pleas are a necessity because America simply lacks the attorneys, judges and courtrooms required to try every criminal case. So prosecutors and defense attorneys attempt to negotiate charges and sentences acceptable to both sides – though prosecutors often have much more bargaining power than defense attorneys.
Factors Encouraging Guilty Pleas
Even though prosecutors largely base their charging and bargaining decisions on the assessed strength of available evidence, such assessments are not perfect. While guilty people are more receptive to plea offers, innocent defendants are not immune to the potentially coercive factors that make pleading guilty attractive such as pretrial detention and differences in duration of sentences.
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Prosecutors often offer plea deals with dramatically lower sentences than those likely to be imposed if a jury finds the defendant guilty. In some cases, defendants who opted for a trial instead of pleading guilty have received tenfold sentence increases from the original plea offer, or even life sentences, upon conviction.
This possibility can make a plea offer very attractive, and even create what some have called a “trial penalty” for defendants who refuse to plead guilty.
Even innocent defendants may feel it would be too risky to go to trial. Studies have confirmed that the larger the sentence gap between the plea offer and the likely trial sentence, the higher the likelihood for defendants — both guilty and innocent — to plead guilty.
When defendants are held in jail before trial, they may be more likely to accept a plea deal as well — even if they are innocent. The promise of immediate release, usually through probation or a sentence for time already served behind bars, has been found to increase both true and false guilty plea rates.
With tools like these, the justice system was already skilled at encouraging defendants to plead guilty – even if they were innocent. Then, the coronavirus hit.
Inmates at a Massachusetts jail clean a common room to prevent the spread of the coronavirus. (David L. Ryan/The Boston Globe via Getty Images)
Pleading During a Pandemic
The Covid-19 pandemic changed the nation’s criminal justice system in two major ways.
First, prisons and jails, as places where diverse populations came into very close physical contact, became outbreak hot spots.
And then courts closed or limited their operations, seeking to follow workplace safety rules and social distancing guidelines. Many courts stopped hosting jury trials for months.
These facts further increased the risks of going to trial: Defendants had to wait longer for their day in court, and each day they spent in jail increased their risk of being exposed to the coronavirus. The research on pleas has clearly indicated that when the cost of going to trial increases, guilty pleas increase too.
Sure enough, a survey of 93 defense attorneys found that plea bargaining practices have indeed changed during the pandemic. More than 60 percent of the lawyers surveyed said they thought prosecutors were offering more lenient deals than they would have before the pandemic. At the same time, more than 30 percent of the attorneys had a client who claimed innocence, but nevertheless accepted a plea offer because of concerns related to Covid-19.
To examine whether Covid-19 exacerbated the innocence problem in guilty pleas among a larger sample of potential defendants, we used a computerized simulation platform of legal procedures funded by the National Science Foundation and developed at the University of Massachusetts Lowell. More than 700 U.S. adults agreed to participate in our study, and we randomly assigned them to be either innocent or guilty of stealing a pair of sunglasses. In the simulation, all participants were detained before trial, then offered a plea deal to be immediately released.
Among both guilty and innocent conditions, we further randomly informed half of the participants about the complications related to Covid-19 — that the jail was currently having an outbreak of coronavirus and court dates had been pushed back because of the pandemic.
The results confirmed that both guilty and innocent participants were more likely to plead guilty when warned of the increased complications posed by Covid-19. Further, innocent participants ranked the pandemic as a more important factor in shaping their decision to plead than guilty participants.
As the pandemic wanes, courts and the legal system as a whole are resuming more normal operations. But the fundamental problems with the plea process — excessive trial penalties and pretrial detention — will remain.
Shi Yan is assistant professor of criminology and criminal justice at Arizona State University.
David M. Zimmerman is associate professor of psychology at Missouri State University.
Kelly T. Sutherland is a Ph.D. candidate in applied psychology and prevention science; data manager at the Center for Open Science, University of Massachusetts Lowell.
Miko M. Wilford, Associate Professor of Psychology, University of Massachusetts Lowell
This article is republished from The Conversation under a Creative Commons license. Read the original article.
The views expressed are solely those of the authors and may or may not reflect those of Consortium News.
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An interesting thought exercise is “what does the word ‘justice’ mean in this country now?
Begin with OJ justice, and include the Supreme Court’s ruling that money is “democratic” free speech.
And look up the coroner’s report on the George Floyd case.
The U$ legal system is not concerned with actual justice.
The essential and fundamental purpose of the U$ legal system is to protect the status quo of wealth, power, and privilege.
The treatment of hoi paloi, and that is what this article describes, by this system, as anyone reading must readily grasp, is both outrageous and clumsily heavy-handed.
It ought to shame all the officers of courts everywhere in the nation because it reflects an attitude of depraved indifference to what is actually going on.
Such indifference, cannot but beget disrespect for the entire system, premised, as it is, on a totally empty form of law.
It cannot even manage to meet the minimum threshold of basic decency, of societal responsibility, and basic human compassion (spare me the claim that there is and can be no such thing ).
How any attorney, any judge, any officer of the court (or any politician or even the “average” citizen) can believe, for even an instant, that this state of affairs is either just or remotely acceptable, not forgetting that the U$ imprisons more human beings, both in numbers and percentage of population, than any other nation on Earth) is astounding.
Yet more damning still, is how few Officers of the Court, apparently, have voiced concerns sufficient to encourage public awareness and disgust.
Does not an honest and actual Rule of Law require of its practitioners, at the very least, the capacity to recognize failure and injustice?
Do not the political class, the media, and academia have a fundamental responsibility to, at the very least, be aware of such a moral failing, for that is what is being described, especially if the consequence must be borne by those who, unlike the meritorious, well-connected, and well-off for whom the law’s consequence, most often, is a fine, usually of a slap on the wrist proportion?
A two-tiered system of consequence is also an unconscionable moral arrogance.
However, we are not really talking about morality or principle here, are we?
Instead, we witness another aspect of precarity in a legal system premised on money.
Why do I say such an ugly thing?
Because the reality is that the overwhelmingly vast majority of those facing a plea deal in a system without enough judges (but an ever increasing roster of “crimes”, useful in oppressive policing and control) do not have the financial means to avail themselves of the “legal representation” of sufficient caliber that real money can buy.
Perhaps, sometime, some distant day, the role of money (and the issue of standing) might actually be considered and discussed, in terms of what both do to make mock of actual justice.
Just as human beings in the U$ can face bankruptcy resulting from a medical emergency, so too may a legal emergency bring about the same result.
I think it fair, and just, to ask who benefits from the legal and healthcare systems which, despite their brutality, prevail in this society?
Is it the many or is it the few?
Clearly, the legal system is no more likely to fix itself than is the healthcare system.
The elite, and the “meritorious”, appear completely comfortable with both, for neither system threaten their wellbeing as those two systems DO threaten the many.
WHAT GOES?
“As the pandemic wanes, courts and the legal system as a whole are resuming more normal operations. But the fundamental problems with the plea process — excessive trial penalties and pretrial detention — will remain.”
I THOUGHT UNDER OUR CONSTITUTION THERE COULD NOT BE PRETRIAL DETENTION, is that my total misunderstanding of what is what?
No. At the judge’s discretion, you can be held in prison until your trial, which can be for months or even years, unless you can post bail. (Median wait time is 68 days, according to the article linked below.)
Typical bail for a felony is around $10,000. If you can’t come up with the cash, you can pay a bondsman 10% (which you’ll lose), but given that 40% of American familes can’t come up with $400 in an emergency, even that is out of reach for a lot of people.
hXXps://www.prisonfellowship.org/2020/09/the-problems-with-pretrial-detention/
Having just read the wonderful book “Sensing Injustice” by lawyer Michael Tigar and learning of so many cases where the person accused, even if guilty and perhaps “deserving” punishment, was not permitted to present evidence which would reduce the penalty. Innocent people,often with few resources or access to “clever lawyers”, are often convicted, and the bail laws allow them to be incarcerated without any charges, awaiting trial or lack of it, as we see in the article. We note rarely the arrest, conviction and incarceration of white collar criminals or our leaders who make war on others!
Are there other countries using the “plea bargain” system which is obviously grossly unfair ? A jury trial should be a right, but so many lawyers seem involved in helping the very rich become richer, corporations escape justice, that people like Michael Tigar, who work for the underdog, are thin on the ground.
We’re an exceptional nation and we have an exceptionally high percentage of our population incarcerated. Go figure.
Might be somehow related to the exceptional disparities in education, housing, job opportunities, rate of pay, health benefits, psychological and psychosocial adjustment and general perception of personal happiness, probably among various other vagaries of life, as our citizens progress from cradle to grave. But that’s only if you believe in an objective reality grounded in cause and effect.
“Guilty pleas are a necessity because America simply lacks the attorneys, judges and courtrooms required to try every criminal case.”
That’s because we have so many stupid laws that have nothing to do with the maintenance of an orderly society. Take the drug abuse laws as a textbook example. According to Bureau of Prisons statistics, 46% of all inmates were convicted on drug offenses.
The entire criminal justice system needs to be completely reformed.