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.
Some of the justices are knowledgeable about foreign law, and know that, in every other serious jurisdiction in the world, no evidence procured as it is in the American plea bargain would be admissible, and the prosecutors responsible for it would be disbarred. The Supreme Court itself, in the infamous Thompson case of 2011, determined that even where prosecutors willfully withheld exculpatory evidence about a long-term denizen of death row, there were no legal sanctions against them. It was up to the bar, the court held, to discipline such people if it wished. The Supreme Court also knows that huge numbers of people are convicted of dry conspiracies, in which there is no contraband, no money, and no particular event, and which usually feature uncorroborated and carefully orchestrated denunciations. The procedure of revolutionary France’s Committee of Public Safety was scarcely more of a burlesque of due process.
In the federal prison system today, a majority of people are drug small-fry; perhaps a fifth of these are Latin American peasants or fishermen who were denounced by prearrangement by more prominent drug-trading countrymen, who then pay the families of the voluntary felons generously and receive sentence reductions for identifying other culprits. (The practice is declining now, but it worked for everyone: The low-security-prison conditions aren’t harsh by the standards of the new convicts’ former lives; the arresting officers are rewarded; and the prison industry, where inmates are the commodity, is enlarged.)
A surprisingly high number of federal prisoners are convicted of the fabricated crime of downloading designated child pornography, without having created or distributed it. However objectively disgusting this material may be to most people, those who download it in their own interest alone do not belong in correctional institutions where they are frequently abused by other inmates. In 40 years, the number of people in mental institutions in the U.S. has declined by 90 percent, and not because of a great leap forward in the country’s mental hygiene. They are now in the prison system, and they don’t belong there either.
Approximately 10 percent of federal inmates are completely innocent, but were convicted because, as Justice Kennedy implied, almost everybody is convicted. (In Canada, only 65 percent of prosecutions lead to convictions. Though there are often guilty pleas, there are very few plea bargains and only 40 percent of convictions lead to custodial sentences.)
At least 80 percent of American prisoners are grossly over-sentenced. The Supreme Court knows this, but shows scant concern for this human side of criminal justice. There are 48 million Americans with a “record” — even if it was only a DUI 20 years ago — and they are very often durably scarred by it. The sentences are not only excessive; they are just the beginning. Millions of people who have been convicted can’t vote, and tens of millions are not eligible for some sophisticated trades. They are stigmatized and ostracized. All emphasis in American prisons is on punishment, retribution, and disparagement, and almost none is on rehabilitation. In order to feed the prison industry, public and private, there is endless pressure for more crime legislation, longer sentences, more restrictively supervised release, and the greatest possible likelihood that those released will be flopped back into the system. The living conditions of a large number of the 2.5 million prisoners, especially in the state prisons, metropolitan detention centers, and county jails, are inexcusable.
The Supreme Court knows that grand juries are rubber stamps for prosecutors, that prosecutors conduct media lynchings of defendants, that justice is not prompt, and that bail is often far from reasonable — all in direct violation of the Bill of Rights.
They know that American criminal justice is in tatters and that prosecutors are a rogue state-within-a-state, but because their relaxed work regime — with its life tenure, large staffs, and four-month vacations — gets a pass from the media (unlike the imperfections of the legislative and executive branches), they just plod on, decade after decade, drinking their own bathwater. Last week, on plea bargains, by the narrowest of margins (5-4), they did the right thing. But in the course of doing so, Justice Kennedy for the majority revealed the high court’s tolerant awareness that American criminal justice is essentially a process of prosecutorial target selection and target practice. Most of the rest is window dressing. This is not tolerable in a society of laws and it is gnawing at the moral soul of the nation.