Cheap Justice, Bad Law = Broken System

Submitted By: Mike Spindell, Guest Blogger

USDistrictCourtSealMany blogs have been written here that deal with the phony “War on Drugs” and the negative effects it has on society, particularly those lacking resources, or being people of color. This piece is not about the “War on Drugs”, but this ridiculous “war” has actually driven the abuses of our criminal justice system that is my topic today. Because the “War on Drugs” provides context for this subject I’ve included links at the bottom that supply the context behind my opinions here. Human Rights Watch produced a report this week about how most defendants in Federal drug cases are forced to plead guilty under the threat of the imposition of a mandatory sentence. I read an article in Huffington Post referencing this study and it immediately brought to mind two aspects of law enforcement and prosecution today that raise my ire.

The first is the process of plea bargaining, which I believe makes a mockery of our Criminal Justice System. The second is the concept of Mandatory Minimum Sentencing (MMS) which in my opinion leads inevitably to miscarriages of what we would like to call justice. The idea of negotiation, bargaining if you will, is that each of the two sides has the ability to provide enough of value to be able to establish a mutually beneficial contract. Clearly though when it comes to a Prosecutor bargaining with a defendant there is, except in the case of the wealthy/powerful, an unequal negotiation. The Prosecution has the authority and resources of the State backing it up. Most defendants and indeed most people in prisons, have little resources. In the public’s (thus jury’s) mind, most defendants are really guilty until proven innocent, despite the “presumption of innocence” that is supposedly a hallmark of our legal system.  Adding immeasurably to the Prosecution’s resources are “Mandatory Minimum” sentences (MMS). They were instituted by legislators who wanted to appear “tough on crime” and so represent drastic solutions to punishment needs, in order to appear as “tough” as possible. With the trump card of MMS prosecutors are in a position to threaten a defendant to “cop a plea” to avoid a more draconian prison sentence. The Human Rights Watch study shows how these two procedures have become a feature of American Criminal Justice that in my opinion makes a mockery of it.

“Only 3 percent of U.S. drug defendants in federal cases chose to go to trial instead of pleading guilty in 2012, according to a new report from Human Rights Watch.

The small number begins to make sense if you consider the consequences faced by drug defendants convicted in court, argues the report’s author, Jamie Fellner.

“Prosecutors can say, ‘Take these 10 years or, if you get a trial and are convicted, you’re going to look at life,’” said Fellner, an attorney who specializes in criminal justice issues at Human Rights Watch. “That’s a pretty amazing power that unfortunately they are more than willing to wield.”

The effect, she argues, is that prosecutors essentially “force” defendants to plead guilty.

Last year, drug defendants in federal cases who went to trial and lost were sentenced to more than three times as many years in prison as those who took a plea, according to the report’s analysis of data from the United States Sentencing Commission, a government agency.

And the majority of those who did go to trial — 89 percent of them — lost.”

In my opinion the premise that underlies the concept of the “plea bargain” is a faulty one. The justifications used by prosecutors invariably center around the heavy burden of cases they must “clear” and the lack of court resources available. Plea Bargaining is seen as a way of making due with an inadequately funded and staffed judiciary system. It simply doesn’t make sense that a country that takes exceptional pride in its supposed Democracy and Justice, under-funds one of the basic needs of a truly balanced justice system. Why do we have a court system that lacks the funds it needs to provide the right to a fair and speedy trial? How do we look askance at human rights violations in other countries, when in our own human rights are denied to those who would seek a fair and speedy trial, because the country refuses to apply the resources needed to provide a fully operational court system?

In order for the “plea bargain” to be an effective tool for prosecutions by the government there has to be something behind the prosecutions threat that will strike terror into the heart of even an innocent defendant and cause them agree to plead guilty to charges where they might not be guilty. In the ever increasing spate of “conspiracy” cases the prosecution also gets leverage to get one of the presumed “conspirators” to turn on their companions. Conspiracy prosecutions have been around for a long time and have historically been used by the government deal with groups the powers that be consider noxious. Most laws that have expanded the reach of criminal conspiracy prosecutions, such as the RICO laws , have been used by prosecutions to also attack political groups, corporate entities and even the Roman Catholic Church. Like many other laws that in my opinion demean our Constitution the RICO laws were first signed into law in 1970, with the express purpose of dealing with organized crime, specifically drug dealers. While conspiracy prosecutions have been around for a far longer time and were used in our history to attack “radical” political groups and the nascent Labor Movement, RICO became conspiracy on steroids. It would be helpful here to see the definition of conspiracy:

“An agreement between two or more people to commit an illegal act, along with an intent to achieve the agreement’s goal.  Most U.S. jurisdictions also require an overt act toward furthering the agreement.  An overt act is a statutory requirement, not a constitutional one. See Whitfield v. United States, 453 U.S. 209 (2005). The illegal act is the conspiracy’s “target offense.”

Today, conspiracy prosecutions in many jurisdictions don’t even require that the “conspired act” is committed, only that there was a “conspiracy” to commit it and that a step was taken to actually further the plan. American history has shown that conspiracy prosecutions have turned on a group of people talking about committing a violent act and one of them purchasing something that could have advanced the plan. One of the most famous conspiracy prosecutions in our history ended with the executions of Julius and Ethel Rosenberg during the “Cold War”. Where Ethel the wife was executed even though there was little evidence she was a party to the alleged conspiracy.

Back to my main point though, since conspiracy charges are only one of the “tools” used by prosecutors to obtain “plea bargains.” By far the most effective “club” wielded by prosecutors today is Mandatory Minimum Sentencing.

“The percentage of defendants in 2012 who fought their charges is likely an all-time low. In 1980, the first year for which the report reviewed the relevant data, the percentage of federal drug defendants who pleaded guilty was slightly more than 60 percent, and it has risen steadily since then.

The advent of mandatory-minimum sentencing laws in the mid-80s is largely responsible for the steady increase in guilty pleas, according to Fellner. Such laws required judges to impose harsh, predetermined sentences on people convicted of the distribution and, in some circumstances, possession of illicit drugs, while giving prosecutors the ability to offer defendants smaller sentences as part of a deal.

“If you can get someone to acknowledge guilt without the burden and expense of a trial, without having to marshal witnesses and line up witnesses, and without risking an acquittal, why not?” said Fellner. “You don’t have the cost of a trial, it doesn’t take the time and resources, and it increases the notches on your belt of how many convictions you’ve gotten.”

But in reality, the government lacks the resources needed to try everyone who is charged with a drug offense, said Steven Jansen, the vice president and chief operating officer of the Association of Prosecuting Attorneys, a professional group based in Washington.

“Justice would almost stand still if we took the majority of our cases to trial,” he said.”

The United States has the highest incarceration rate in the entire world. You can follow this link to see the list by country:

The evidence clearly shows that this incarceration rate is due to the failed “War on Drugs” and the burden of those laws fall most heavily on the poor and people of color. In my view this is a sorry state of affairs for a country that we used to take pride in as the bastion of freedom. This degradation of our Criminal Justice System has come about because of a confluence of factors that range from a Prohibition Agent seeking continued employment : ; to the rise of a “Police State” mentality in our Justice System: ; and to America’s lasting legacy of slavery, racism: .  Added to those factors is the fact that being a prosecutor has often been a stepping stone to higher political office, especially if one can get cases that show the prosecutor as being “tough on crime”, as in this case:  Finally too, as with most things in this country, it comes down to the profit to be made by the privatization of the prison system and the need to ensure that our prisons meet their bed count quota :  However, underlying all of this and driving this system is in my opinion one major factor.

In our country we seem to want justice on the cheap. Historically, our court systems have been underfunded and understaffed. We as a nation pride ourselves on our justice, yet we consistently refuse to fund the very basis of our Justice System, our Courts. I don’t have to present any evidence for the reader to understand that the idea of obtaining a fair and speedy trial doesn’t represent the reality in America. This is true whether in criminal or in civil cases. Why is this so?

My belief is that our courts are undermanned and underfunded because it suits the needs of those in power. Those with vast wealth in our country rarely are brought to trial and when they are somehow the system works quicker on their behalf. Many Americans can’t even imagine that they would ever be criminally prosecuted and so pay little attention to the justice system, except when a sensational trial drives their attention. Therefore no politician ever got elected campaigning for more money for the courts. This is not some secret that I’ve discovered, but as you can see from the quotes above the delays in our justice system are not only spoken of as facts, but are used for justifications to shortcut its workings. Obviously, my solution to this is to put the money necessary into our courts. Beyond that though I believe it is time to end the insane “War on Drugs”, which is really a “War” on the poor and people of color. I believe that we should get rid of Mandatory Minimum Sentencing because it is not a deterrent and is an abomination of justice. I believe RICO should either be reformed or repealed as being beyond the intent of our Founding Fathers in the Constitution. I further believe that the offices of those who would be our prosecutors should be removed as “stepping stones” for higher political office. Prosecution can be a noble profession, but to be so must attract those of nobler intent, which in my opinions has become a rarity today. What do you think?

36 thoughts on “Cheap Justice, Bad Law = Broken System”

  1. When we say raise taxes on the wealthy – what does that mean ? Are we talking about income or promise of income not taxed ?
    Please reconize the difference. !!! The tax code does & the self-reliant blue collar worker also. Thanks.

  2. The poor go to jail for crimes, the rich just pay a fine and admit no wrong doings…..A high priced lawyer will tell you every time, can you afford to be not guilty?

  3. Wow! This post covers a lot of turf. Where do I start?

    Plea bargaining is the epitome of the necessary evil. In theory, every person accused of a crime should have a jury selected from the community decide what, if anything, the accused did. No defendant should feel compelled to plead guilty for any reason other than he knows he is guilty. While no innocent person should plead guilty, conversely, no guilty person should be allowed to plea away the gravity of his offense by copping to something less than what he really did.

    The world of criminal justice is not a perfect one. Theories give way to practicalities. If everyone went to trial, not only would costs accelerate dramatically but the length of time it took to bring a defendant to trial would also rise dramatically. For defendants incarcerated pretrial, this would mean lengthier incarcerations before a determination of guilt. This offends those of us who believe in the presumption of innocence. For defendants released to the community, this would mean an increase of crime committed by those released by the courts awaiting trial. This offends those of us who get ripped off by a guy who may have committed an offense but has been let go to await his trial.

    Approximately 5-10% of criminal defendants go to trial, less for misdemeanors, more for felonies. If everyone of the 90-95% who currently do not go to trial, did, in fact, go to trial, that would mean 10-20 times as many prosecutors, defense counsel, judges, law clerks, paralegals, bailiffs, sheriffs, courtroom clerks and, maybe most importantly, citizens summoned for jury duty. It would also mean 10-20 times the number of courtrooms, supporting facilities, electric bills, heating and cooling bills, water bills, etc. This is a bit of an exaggeration, but you get the idea. If you want the perfect world, you’ve got to pay for it. Reach real deep into your wallets fellow citizens.

    Next point, mandatory-minimum sentences exist because the public, acting through its elected representatives, has determined that some judges do not render justice in their sentences. Ironically, though, mandatory-minimum sentences do not reduce discretion. Discretion is a constant. Mandatory-minimum sentences merely shift the discretion from the judge to the prosecutor. Instead of having the judge determine to give the defendant a lower sentence, the prosecutor has the discretion of giving the defendant a lower sentence by offering a cop to an offense not covered by the mandatory-minimum. As this post points out, the mandatory-minimum strongly favors the prosecution. However, so do maximum sentences and nobody complains about them. In fact, maximum sentences have the same coercing effect as the mandatory-minimums.

    As one former client said to me when agreeing to accept a plea to a 90 day charge in return for dismissal of a 3 year offense, “You mean, if I take the cop, that pig faced bastard in there can’t give me more than 90 days? Oh! I’ll take that.”

    Next point, if you disagree with the concept of a mandatory-minimum sentence, consider this scenario: a man rapes and murders a two year old child. Is there a sentence below which, if imposed you would find a miscarriage of justice had occurred? If you answer “yes” to this question, you are actually in favor of mandatory-minimum sentences, the only issues are what crimes warrant a mandatory-minimum and what the mandatory-minimum should be.

    Last point, it is a half truth to state that long prison terms are handed out to persons convicted of possession of narcotics. No one gets heavy time for simple possession of narcotics. Long prison terms are given to those convicted on possession with intent to distribute narcotics. That’s different.

    Wow! This reply covers a lot of turf.

  4. Well said Mike S. The MMS’ didn’t need public support to be passed. As you suggested, the legislation was passed to make legislators look tough in the so-called war on drugs.

  5. “They were passed as a result of public outrage when hearing of some high profile cases for which ridiculously low sentences being handed out for some substantially heinous crimes”


    The above can be described as putting the cart before the horse. “Public Outrage” was certainly ginned up over certain high profile cases, however, the history of MMS’ is tied in with drug offenses. The proponents of MMS’ were certainly people trying to establish a reputation as being “tough on crime.”

  6. Funny. I don’t see any blame placed on those who are most intimate with the justice system – lawyers. Who are those who usually pass laws? Legislators that are generally lawyers. Who ‘represents’ an arrested person? Lawyers. Who bargains for likely sentences? Lawyers. Who ‘represents’ the citizenry? Lawyers. Who has most influence in Congress and other law writing bodies? Lawyers. While each individual lawyer does their best within a broken and often corrupt judicial system, if they all stood in unison and said “Enough of this!” the system would begin to change. But until those highly influential guardians of justice do something to help move the process forward, nothing will happen that’s good.

    And as was mentioned above, the private prison system needs fresh blood on a regular basis to keep those profits rolling. These corporate cretins are in the hip pocket of prosecutors and legislators who need campaign money. When profit depends on the number of prisoners behind bars, the system of punishment is truly broken…..

    1. It is the nature of those who government

      Additionally, the Prisons were full even before privatization. It’ bad laws that are filling up our prisons. Prison budgets were based on the number of prisoners. The companies providing food, electricity, telephone service, clothing, etc. have always be a part of the problem. It’s no different the military industrial complex,big pharma or the companies like EDS who furnished the computer systems to the government. Ross Perot was CEO.

  7. While I do concur with you in that I have a problem with MMSes, The claim that they were passed “to make it appear as though the legislation was ‘tough on crime'” is substantially disingenuous.

    They were passed as a result of public outrage when hearing of some high profile cases for which ridiculously low sentences being handed out for some substantially heinous crimes — men getting a year or so for raping a woman, a couple years for a blatantly pointless and unnecessary murder.

    If those outrages had not been happening, there would have been no public support for MMSes.

    And who, exactly, was it handing out these ridiculous sentences? You figure it out.

    And if you want to fix this problem, it’s really pretty damned simple — Make the public once more widely aware of their full rights and responsibilities as jurors, that they can and do have the power to nullify laws whose application they believe unjust. This will put Prosecutors on notice that if they attempt to screw someone simply for not surrendering their right to trial, they are taking a risk of their own that they won’t come away with a single thing. And a number of MMS convictions rejected will signal to the legislators that they need to at least put it more at the prosecutor’s, and the judge’s, discretion as to whether or not MMSes will be applied. Give them the power to say they will or won’t seek the MMS (I’m sure, as an attorney, you can find a way to justify this, by making different classifications of laws) PRIOR to the trial and then the jury will be more willing to consider convictions.

  8. James Knauer 1, December 7, 2013 at 11:25 am

    Hint: stop declaring war on problems and instead fix them.

    I like that.

    War was the magical be-all and cure-all of feudal society.

    It did not work in that olde dark age.

    It does not and will not work in the modern dark age either (American Feudalism – 6).

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