Every resident of or frequent visitor to the United States should rejoice at the Supreme Court’s decision last week expanding the rights of defendants to effective counsel in plea-bargain negotiations. As Justice Anthony Kennedy wrote in the majority opinion, the country no longer has a “trial system,” but rather a system in which “the negotiation of a plea bargain, [instead of] the unfolding of a trial, is almost always the critical point for a defendant.” In federal cases, 97 percent of convictions — and in state cases, 94 percent of convictions — are the result of plea bargains.
Justice Kennedy, perhaps without realizing it, turned over the rock that hides the ghastly infirmity of the whole American criminal-justice system when he emphasized that the plea bargain is “the critical point for a defendant.” He didn’t say, “for a convicted defendant,” or “for a guilty defendant” — and thus implicitly recognized that over 90 percent of those charged are convicted. The sluggishness of the Supreme Court to grasp the implications of this makes the gently downward movement of molasses and even that of fresh cement seem like the rush of the Niagara River toward the falls, but at some point the high court is going to have to come to grips with this degeneration of American justice into virtual Star Chambers.
The United States has 5 percent of the world’s population, 25 percent of the world’s incarcerated people, and 50 percent of the world’s lawyers. Ninety percent of its criminal cases are determined by accused people forgoing their constitutionally guaranteed right to trial in favor of an agreed sentence. It was accepted by the Supreme Court in the cases decided last week that defendants frequently receive inept advice. It is also frequently the case that the government spuriously seizes the assets of defendants as ill-gotten gains — on the basis of fraudulent affidavits in ex parte actions — so that the defendants can’t engage the counsel of their choice, and then stays those proceedings while the criminal case is decided without the presence of a serious defense counsel.
It is also usually the case that the public defender, provided in response to the much-mythologized Gideon v. Wainwright case of 1963, is an underfunded and docile dupe of the prosecutors, who is paid according to the number of clients he represents and not his performance, thus incentivizing minimal service and maximum turnover. And it is very often also the case that whatever is agreed between the prosecutor and the defense counsel is not followed by prosecutors after the plea is entered, or is ignored by the judges, most of whom are unregenerate ex-prosecutors.
The most rigorous legal scholars could ransack the learned legal journals of this country and find almost no references to, much less expressions of concern about, the fact that in 40 years the number of convictions that are the result of a trial has sharply declined to a pitiful one in 33, while the U.S. has gone from the mid-point of incarcerations per capita among prosperous democracies to six to twelve times as many as Australia, Canada, France, Germany, Japan, or the United Kingdom.
All these judges, especially Samuel Alito, an ex-prosecutor, and Elena Kagan, a former solicitor general, know perfectly well how the system works. They know that when prosecutors target someone, they interview everyone close to the target or to the events being examined and threaten them with the full weight of their powers unless they have a miraculous recollection of inculpatory evidence against the target. They know that the prospective witnesses may have a score of interviews with prosecutors, leaping higher and higher in what they remember and forget, like dogs training for a competitive obstacle course, until an adequately useful version of events is agreed, and an immunity or reduced sentence is granted.