The Promise
Sixth Amendment
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
One of the principles of American life that we tout most loudly is that every person is equal before the law.
Blind lady justice is ubiquitous. As it turns out justice is not.
The Fraud
Only 2% of Federal criminal defendants went to trial in 2018. This is down from 8% in 1998. The situation in state courts is not very different. Some counties have not had a criminal trial in a decade. The American Bar Association’s 2023 Plea Bargain Task Force Report1 provides 14 principles that should be followed to address this obvious fraud. As you read through these “principles” you will readily discover the unfortunate practices that are in continuous use by prosecutors.
Principle 1 – A vibrant and active docket of criminal trials and pre- and post-trial litigation is essential to promote transparency, accountability, justice, and legitimacy in the criminal justice system.
Principle 2 – Guilty pleas should not result from the use of impermissively coercive incentives or incentives that overbear the will of the defendant.
Principle 3 – In general, while some difference between the sentence offered prior to trial and the sentence received after trial is permissible, a substantial difference undermines the integrity of the criminal system and reflects a penalty for exercising one’s right to trial. This differential, often referred to as the trial penalty, should be eliminated.
Principle 4 – Charges should not be selected or amended with the purpose of creating a sentencing differential, sentencing enhancement, punishment or collateral consequence to induce a defendant to plead guilty or to punish defendants for exercising their rights, including the right to trial.
Principle 5 – The criminal justice system should recognize that plea bargaining induces defendants to plead guilty for various reasons, some of which have little or nothing to do with factual and legal guilt. In the current system, innocent people sometimes plead guilty to crimes they did not commit.
Principle 6 – A defendant should have a right to qualified counsel in any criminal adjudication before the defendant enters a guilty plea. Counsel should be afforded a meaningful opportunity to satisfy their duty to investigate the case without risk of penalty to their client.
Principle 7 – There should be robust and transparent procedures at the plea phase to ensure that the defendant’s plea is knowing and voluntary, free from impermissible coercion, and that the defendant understands the consequences of their decision to plead guilty.
Principle 8 – The use of bail or pretrial detention to induce guilty pleas should be eliminated.
Principle 9 – Defendants should receive all available discovery, including exculpatory materials, prior to entry of a guilty plea, and should have sufficient time to review such discovery before being required to accept or reject a plea offer.
Principle 10 – Although guilty pleas necessarily involve the waiver of certain trial rights, there are rights that defendants should never be required to waive in a plea agreement.
Principle 11 – An adequate understanding of the collateral consequences that may flow from a guilty plea is necessary to ensure the guilty plea is knowing and voluntary.
Principle 12 – Law students, lawyers, and judges should receive training on the use and practice of plea bargaining consistent with the findings and recommendations of this Report.
Principle 13 – Court systems, sentencing commissions, and other criminal justice stakeholders, including prosecutor offices and public defenders, should collect data about the plea process and each individual plea, including the history of plea offers in a case. Data collection should be used to assess and monitor racial and other biases in the plea process.
Principle 14 – At every stage of the criminal process, there should be robust oversight by all actors in the criminal system to monitor the plea process for accuracy and integrity, to ensure the system operates consistent with the Principles in this Report, and to promote transparency, accountability, justice, and legitimacy in the criminal system.
New York state passed a law several years ago establishing a Commission on Prosecutorial Conduct. A first in the nation action. This may bring a bit of oversight to the actions of prosecutors. Unfortunately, the commission that was signed into law in 2018 has yet to get off the ground.
Public Defenders
Strangely nothing in this list addresses actual access to a lawyer. 
In a country where over 90% of the population has effectively received no pay raise for 40 years and a Federal Reserve survey shows that a third of adults can’t cover an unexpected $400 bill2 access to legal representation is obviously very limited. State funding for legal aid, public defenders, varies widely and is supported in a very fragmentary fashion by volunteers, “pro bono” lawyers, and other organizations. I was unable to find summary data on the level of support for public defenders.
Here are a few sample studies.
The American Bar Association “THE NEW MEXICO PROJECT: An Analysis of the New Mexico Public Defense System and Attorney Workload Standards3
American Bar Association “The Louisiana Project: A Study of the Louisiana Public Defender System and Attorney Workload Standards” 4
As of October 31, 2016, the Louisiana public defense system employed 363 FTE public defenders. Therefore, the Delphi Method’s process indicates the Louisiana public defense system is currently deficient 1,406 FTE attorneys. Alternatively, based on Delphi Method’s results and analysis presented herein, the Louisiana public defense system currently only has the capacity to handle 21 percent of the workload in compliance with the Delphi Panel’s consensus opinions.
Pre-Trial Jail
As was noted in an earlier post, The State of Mass Incarceration – 2022, 445,000 people are in jail without having been tried. Pre-trial detention and the cash bail system in action. A deepening of the fraud that is our justice system.
Footnotes
- https://www.americanbar.org/content/dam/aba/publications/criminaljustice/plea-bargain-tf-report.pdf
- https://www.federalreserve.gov/publications/2022-economic-well-being-of-us-households-in-2021-dealing-with-unexpected-expenses.htm
- https://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls-sclaid-nm-moss-adams-exec-summ.pdf
- https://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_louisiana_project_report.pdf
