Crime, Trials

Let's 'Sweatt' The Technique: The Atlantic Looks At Plea Bargaining

There are problems with the overwhelming prevalence of plea bargaining.

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God bless Emily Yoffe. She has a gift for illustrating complicated issues through the lens of a particular person’s story. She did that to famous effect in her Slate article on the dishonesty of The Hunting Ground, and she’s done it again in a recent article in The Atlantic.

This time, instead of talking about campus sexual assault, she’s talking about plea bargains and the central role that they play in the American criminal justice system.

Much of what she writes might not be new to regular readers of this column or those who closely follow the criminal justice system. But that’s probably not most of the Atlantic’s readers. What is so compelling is the way she tells the story of why one woman in Nashville (Shanta Sweatt, whose name is Straight Outta Dickens) decided to take a plea to something that she probably didn’t do — possessing a small amount of marijuana, which appears to be roughly on a par with child molestation under Tennessee law — just so she could avoid the well-known trial penalty and the risk of losing her sons:

The prosecutor reduced the charge from a felony to a Class A misdemeanor and offered Sweatt a six-month suspended sentence (meaning she wouldn’t have to serve any of it) with no probation. Her paraphernalia charge was dismissed, and her conviction would result in a fine and fees that totaled $1,396.15. Upon hearing the news, Sweatt embraced Eyster and wept with joy. Then she stood before the judge and pleaded guilty to a crime she says she did not commit.

This, of course, is something that innocent people do every day in the justice system but we don’t like to talk about at cocktail parties. (I have always wondered if judges really believe that this happens; sometimes I suspect that they have convinced themselves that it doesn’t.)

And pause for a second on that monetary penalty: $1,396.15. Imagine how much money that is to someone in Sweatt’s position. What, pray tell, is the point of making a poor woman pay that kind of money? I was an AUSA in DC for 5 ½ years and never once saw or even heard of a judge impose a financial penalty like that.

Tempting as it may be, I am not going to use this column as yet another opportunity to complain about overzealous prosecutors. I suspect many prosecutors, or at least the best ones, will tell you that there are problems with the overwhelming prevalence of plea bargaining. (Or at least admit it to themselves when no one is watching.)

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One of the best things about this article, in fact, is its discussion of how both the prosecutors and the defense attorneys in Nashville realize that there is a problem with the system they are a part of. For example, it talks about one Tennessee law that mandates suspension of your driver’s license if you don’t pay certain bills:

Both Glenn Funk, who must enforce this law, and Dawn Deaner, the head of the public defender’s office, agree that it’s absurd, in part because the scheme is almost perfectly designed to prevent the outcome it seeks. If people stop driving when their licenses are suspended, they may no longer be able to reliably get to work, which means they risk losing their jobs and going deeper into debt. As a result, many people whose licenses have been suspended drive anyway, putting themselves in constant jeopardy of racking up misdemeanor convictions.

This pick-pick-pick of misdemeanor convictions can end up having serious consequences down the road:

It is common for defendants charged with such minor infractions to represent themselves, even if they don’t understand the consequences of pleading guilty, and even if there might be some mitigating circumstances that an attorney could argue on their behalf. Plead guilty to enough suspended-license misdemeanors, and a subsequent charge can be a felony.

So what’s the solution? It’s hard to say. It’s a bit facile to say that we should do away with plea bargaining and take everything to trial. I do remember, however, guest-lecturing at a fancy law school once and hearing a genius 1L propose that the best way to solve this problem would be doubling the budget of the federal judiciary. (I believe my response to him may have used the word “fairyland.”)

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Here is one idea that’s mentioned in the piece by Stephanos Bibas, a well-known criminal law professor at Penn who was recently nominated to the Third Circuit:

Bibas wants a “consumer-protection model.” Shoppers, he told me, have more safeguards when making a credit-card purchase than defendants do when pleading guilty. He wants pleas to clearly explain several things: exactly what defendants are pleading to, what obligations (classes, probation) defendants are incurring, what the consequences of their failing to follow through would be, and what potential effects a guilty plea could have on their lives. He has also suggested a “cooling off” period before a defendant takes a plea in serious cases.

Another simpler idea would be to force the government to produce exculpatory and impeachment evidence during plea negotiations. The government hates this idea, because it makes more work for the government and is not currently required by law. (There is literally no other reason. Seriously.) But requiring such disclosures would go a long way towards evening what is currently an extremely warped playing field.

And the last idea is simply this: convince judges not to impose the trial penalty. Whether you call it a “imposing a trial penalty” or “not giving credit for accepting responsibility,” the result is the same — plead and get easier treatment, or go to trial and risk getting crushed. Remove the trial penalty, and you will encourage genuinely innocent people to take their chances with a jury of their peers. Some prosecutors may call that armageddon; I call it a good start.

Finally, if you’d like to donate to a GoFundMe page created to help Shanta Sweatt get back on her feet, you can do so here. Thank you, Emily Yoffe, for telling us her story.

Justin Dillon is a partner at KaiserDillon PLLC in Washington, DC, where he focuses on white-collar criminal defense and campus disciplinary matters. Before joining the firm, he worked as an Assistant United States Attorney in Washington, DC, and at the Civil Rights Division of the Justice Department. His email is jdillon@kaiserdillon.com.

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