Here’s someone complaining that criminals get tougher sentences from judges after trial than they would in a plea bargain before trial. For some reason (maybe the post-court commute?) this really triggered me. I feel disgusted at the dishonest way this topic is presented by former criminal defense attorney Christina Swarns and angry that well-meaning people continue to be misled by her.
First, she focuses her argument on innocent people. Even using the most generous estimates of those with a political and professional interest in exaggeration, the number of factually innocent people who go to trial is so tiny as to be not worth discussing. I know that will rankle some people who rightly see these cases as a tragedy. But looking at the system as a whole, there are so few actually innocent people as to be statistically insignificant. If we want to write a sob story full of anecdotal evidence, then innocent defendants are out there and exist, but if you want to talk seriously about public policy, then focusing on this group is unserious. Looking at the system as a whole, our procedure is almost laughably defendant-friendly, especially when compared to other countries. As a result, our conviction rates our much lower than our peer countries.
But there are still people that will try to get your clicks, or your time, or your charity dollars by telling stories of the wrongfully convicted. Swarns begins her article with a laughably weak story about a defendant who told her that he was innocent. She was a young, idealistic public defender, and of course she believed him. Left out of her account, as it is left out of most accounts, is the sheer number of people who disagreed with her. She doesn’t mention that a disinterested police officer believed that he was guilty and had evidence of it. A judge reviewed this evidence at the time of arrest and agreed that there was probable cause to believe her client committed the crime. The case was given to a prosecutor, who believed the defendant committed the crime, and that it could be proved beyond a reasonable doubt, and filed the case. Then, another judge heard a preliminary hearing, where the prosecutor and the defense attorney had a chance to put in actual evidence. And this second judge agreed with the first judge, and the officer, and the prosecutor, bringing the total number of disinterested people who have reviewed the evidence 4, and each of them agreed that the defendant was guilty. All of this happened in the case discussed by Swarns. But our young public defender believed her client! And when she tells her story, instead of admitting that the evidence showed his guilt, and that many other experienced people disagreed with her, she omits all this entirely. The only opinion that she thinks you need is hers.
Swarns continues. She put in a lot of work and prepared for trial, but on the day of trial, her client agreed to plead guilty in exchange for a one year sentence. I have been a part of many of these negotiations (maybe you have too?) and they are very realistic. Can the prosecutor prove the case? If he can, what would a judge decide is a just sentence? In Swarns’ case, her client decided that the DA could probably prove the case and that the judge would probably give him a tougher sentence than he was being offered. So he pled guilty. Instead of describing this common-sensical process, Swarns casually implies that the only way that the client would be convicted is racism.
The real world is very different from this description. In the real world, men like Swarns’ clients get away with most of the crimes they commit. Even violent crimes are only reported half of the time, and those reported crimes are only cleared with an arrest half of the time. In communities that are hostile to law enforcement, or that have a “no snitching” culture, these numbers are even lower.
If an arrest is made, and the case is filed by the DA, a violent criminal will come into an environment where there are many more cases than there are resources to prosecute. In other words, the DA’s office is hugely understaffed. The only way that American prosecutors can handle their massive caseloads is to give a discount to a defendant that accepts responsibility early. To be clear, what is happening here is that a defendant is getting less than he deserves simply because your local prosecutor doesn’t have time to take the case to trial.
On the other hand, a defendant has every incentive to go to trial. Virtually every defendant, including Swarns’, is getting a free lawyer. It doesn’t matter to the criminal defendant if they go to trial, they won’t have to pay a dime extra. The free lawyer will do all the work, along with the free defense investigator, and the free secretaries and paralegals needed to support them. There is also usually a free expert witness along the way. Understaffing and high caseloads are why, as Swarns correctly points out, less than 3% of criminal cases go to trial.
In order to settle 97% of cases prosecutors must go easy on guilty defendants. This is a tragedy for crime victims, who are forced to watch as overworked prosecutors sell their dead family members down the road because they don’t have the staff to do a murder trial. It’s a tragedy for anyone who thinks that a justice system should be different than a bazaar where everything is up for negotiation and the real value of something doesn’t matter. And it’s a real tragedy for those people who believe that once the legislature sets a consequence for a crime, that it should be imposed, not whittled away.
In this environment of discounts, bargains, and slaps on the wrist, the trial is the only avenue for actually imposing the consequence intended by the legislature. By the way, if you are a person like Swarns, you probably don’t care whether or not the legislature thinks a crime is worth five years versus four. You probably don’t think about the idea that when a democratically elected group of representatives decides a rule, it should be followed. When they decide a punishment, it should be imposed. Democracy matters, and if we value it, we should not work against it to frustrate the purposes of the legislature and flout their rules. Criminal defense attorneys generally don’t think this way, since their only ethical duty is to get the best possible resolution for the criminal. “Who cares if we voted and decided that spousal battery is illegal? She was cheating on him, so he should get diversion!” They, alone among lawyers, have no ethical duty to be honest. And so they are not honest. And they become so comfortable with dishonesty (or so true-believing in their politics) that they are write articles like this.
Anyway, criminal lawyers know what Swarns wont’ tell you: a sentencing judge is the only place in the courthouse where the defendant is likely to get the sentence he actually deserves. So defendants use their free lawyers and free staff to take a case to trial. Maybe they think they’ll beat it. Maybe they think that the witnesses won’t show up. Maybe they see what’s happening in the courthouse and think that after conviction they will still be able to get just a slap on the wrist. And sometimes they get lucky. But sometimes they get convicted and are surprised when there is an actual consequence for their crimes. So they cry “trial tax” and naive people believe them.
Notes
Swarns signs off her article “With gratitude, Christina Swarns Executive Director, Innocence Project.” The “with gratitude part” really annoys me, even though I know my annoyance is unjustified, because it just reeks of performative morality and attempted ingratiation, and also because I think this person has been lying to you for 1,200 words about her attempt to make you less safe. Or maybe she really is grateful.
DA in CA 