“Tens of thousands of poor people go to jail every year without ever talking to a lawyer, and those who do meet with a lawyer for a drug offense often spend only a few minutes discussing their case and options before making a decision that will profoundly affect the rest of their lives.” p. 106
“[A] Louisiana man…was convicted of second-degree murder and sentenced to like in prison without the possibility of parole after meeting with a public defender for just eleven minutes before trial.” p. 108
We left off last week in the middle of Chapter 2 with a mention of forfeiture, in which property used in or resulting from a crime is seized (and kept) by law enforcement. Laws passed in the mid-1980s expanded forfeiture, leading to confiscation of property regardless of wrongdoing. The availability of forfeiture also led to corruption—the use of pretextual stops or even planting evidence in order to seize valuable property.
The Civil Asset Forfeiture Reform Act of 2000 made some improvements but didn’t go far enough, according to Prof. Alexander. For example, family members of someone who commits a crime can lose shared property. The reforms left family members and other innocents with little recourse. Hiring an attorney to fight the forfeiture is too costly, often more than the value of the confiscated property. But the greatest failure of the 2000 law, says Prof. Alexander, is that it left the profit motive for law enforcement intact.
Having surveyed problems in arrests and searches, Alexander then switches to post-arrest issues. Fundamental to problems in the post-arrest proceedings is the woefully underfunded public defender system. Funding for and quality of public defenders varies widely across states and municipalities, but it does not come close to matching the support for and number of prosecutors. Eligibility for a public defender varies too. Alexander offers the example of Wisconsin, where anyone earning more than the shockingly low amount of $3000 per year is ineligible.
Plea bargaining is another area riddled with problems that lead to mass incarceration. Prosecutors hold all the cards and have nearly unlimited discretion. A typical result is overcharging—a prosecutor charges a defendant with a range of crimes, many of which could perhaps not be proved in court, in order to get the defendant to plead to one or more of the lesser crimes and/or provide information in exchange for dropping the more severe charges. This brings the discussion to the severity of sentences, which Prof. Alexander urges is too extreme. In particular, she points to decades-long sentences for non-violent crimes and three-strikes laws that impose very long or life sentences for minor, non-violent crimes. In this, the U.S. diverges sharply from other developed countries and from its own history (“…prior to the Drug Reform Act of 1986, the longest sentence Congress had ever imposed for possession of any drug in any amount was one year” p. 113). Even our judges have protested the cruelty of extreme mandatory minimums.
Chapter 2 closes with a discussion of how the felon status lingers long after incarceration is over. People with a criminal record are locked out of mainstream society and economy, often permanently. Many are rearrested, often for minor parole violations, and many are returned to prison.
Around 95% of all criminal convictions (98% of federal and 94% of state) result from a plea bargain. Is this a sign of a criminal justice system that is working efficiently and cost effectively or one that is so severely strained that it has to resort to questionable tactics just to keep functioning?
Are there ways we could allow for plea bargaining but protect the innocent from ending up in the untenable situation of having to plead?