“90% of criminal cases in the United States end in a guilty plea”
Plea bargaining is a flawed and possibly a coercive process that goes beyond just guilt and innocence, but it can have positive results, according to attorney Rachel Rossi in an Op-Ed in the Los Angeles Sentinel.
More than 90% of criminal cases in the United States end in a guilty plea, cited Rossi. She is a former candidate for Los Angeles district attorney and a former federal and county public defender.
“Our justice system is far from perfect,” Rossi wrote in the Nov.5, 2020 article. “And plea bargaining has many flaws that reflect the larger problems within the system and society at large.
“But in the right hands, prosecutorial discretion provides the power to scale back on mass incarceration, promote public safety, and ensure restorative and just outcomes,” she added.
Unlike courtroom TV and movie dramas, a guilty plea occurs when someone faces a real risk of losing their job, housing or their children to foster care.
“Under these circumstances, there is a strong incentive to plead guilty if it comes with the promise to go home soon,” said Rossi. “It’s not surprising, then, that studies have shown pretrial detention increases a person’s likelihood of pleading guilty by 46%.”
With hundreds of cases scheduled a day, judges, district attorneys and defense lawyers can become incentivized to find a resolution to the cases. Los Angeles has approximately 7,500 people in its County Jail on any given day for pre-trial lock up, according to the article.
“There is precious little time to determine what results will adequately ensure public safety, respect the interests and wishes of victims, and be consistent with the facts,” said Rossi. “Every actor in the criminal justice system is faced with incredible pressure to keep cases moving and get them resolved,” said Rossi.
Innocent people sometimes plead guilty under this type of structural process.
“In nearly 11% of the nation’s DNA exoneration cases, innocent people entered guilty pleas,” said Rossi. “And these are just the cases where DNA made it possible to overturn a conviction; researchers do not know how many innocent people have in fact pleaded guilty,” she added.
Statistics show that creating a diverse group of prosecutors decreases the likelihood of racial disparities in sentencing, said Rossi. However, 95% of elected prosecutors in the U.S. are White, which can result in a disproportionately higher rate of Blacks going to prison than Whites in the plea deals, she noted.
Plea bargaining can help bring humanity into the justice system process, a reason to not do away with the procedure entirely.
“It can allow a prosecutor to look at a person and situation and decide whether treatment, programs, employment or other outcomes would better ensure public safety,” said Rossi. “For an example, a person experiencing a significant mental health crisis who yells out a threat could be charged with a felony ‘strike’ offense and face years of prison time.
“By virtue of the plea bargaining process, a prosecutor has the power to charge the individual with a misdemeanor instead, to pursue alternatives to incarceration as a sentence or….refer the person to mental health treatment,” she added.
