The American criminal justice system is a farce. In recent posts I have described why the war on drugs is doomed to fail. The reason is the drug war uses performance metrics like we have at our jobs, which does nothing to address the underlying causes of drug use. It treats the symptoms but does nothing to cure the disease.
Even if law enforcement somehow stopped using arrests as a measure of productivity the entire justice system is lousy with similar yardsticks to measure job performance. Just as a police officer with the most busts rises through the ranks the fastest, it’s the same for prosecutors. A prosecutor in the US is judged by performance indicators like number of dismissals, average case processing time, use of sentencing options, and most of all: Conviction rate. Just as police face constant pressure to close cases, prosecutors face constant pressure to keep conviction rates high. Bonuses, promotions, and reelections depend on a prosecutor’s ability to score convictions. This creates an environment where serving justice or sending a guilty person to jail frequently matters way less than convicting someone and clearing the case.
The most powerful tool prosecutors have to rack up convictions is the plea bargain. The Sixth Amendment guarantees every person the right to a trial by one’s peers, but at the federal level jury trials have basically gone extinct. In 2015 a mere 1.6 percent of federal defendants had their cases decided by a jury – 97 percent were resolved through plea bargain. The practice is only slightly less common in the states. As the New York Review of Books said,
“While corresponding statistics for the fifty states combined are not available, it is a rare state where plea bargains do not similarly account for the resolution of at least 95 percent of the felony cases that are not dismissed.”
Plea bargains are the primary reason for some truly astonishing conviction rates. In 2015 federal prosecutors won conviction 99.8 percent of the time - 126,802 convicted and only 258 acquitted. That year was not an anomaly. The federal conviction rate was 99.76 percent in 2014 and 99.75 percent in 2013. To be charged with a federal crime is to almost certainly be convicted. At what point is it fair to ask if the American justice system might be rigged against criminal defendants? A 0.25 percent acquittal rate seems a fair place to start.
Plea bargaining is not in the US Constitution. The plea bargain is seen by some as an essential safety valve in an overloaded justice system. If every person accused of a crime in this country insisted on a jury trial the judiciary would grind to a halt. The American justice system simply could not handle the strain. Giving prosecutors the ability to offer a criminal defendant a smaller penalty in exchange for a guilty plea is seen as absolutely essential. Typically, a prosecutor offers to trade the original charge for a lesser one or promises a shorter prison sentence if the defendant agrees to take that guilty plea. Everybody wins, right?
Unfortunately, a series of bipartisan “tough on crime” laws have conspired to create a huge power imbalance between prosecutors and their quarry. A combination of mandatory minimum sentences and sentencing guidelines create a potent weapon used to threaten defendants into submission. Mandatory minimum sentences, set by Congress, mandate the fewest years possible for a given crime no matter what the judge thinks is sensible. For example, until 2022 selling 28 grams of crack (just shy of one ounce, the weight of 5 US quarters or a matchbox-size cube of cheddar cheese) was a five- year sentence. In a federal case, if a weapon is involved another 5 years will be tacked on sequentially for a total of 10 years, minimum. If there are two weapons that’s another 25 years for the second weapons count added to the end of the 10 years for a grand total of 35, minimum. It could go much higher but 35 years is the shortest amount of time a defendant could serve if convicted on those three counts. A judge has no power to choose a shorter sentence even if they want to. The Federal Sentencing Guideline Manual is a set of standardized calculations judges use to determine sentences based on the circumstances of a case. Is the defendant a first-time offender? What was the quantity of drugs involved? Armed with a detailed knowledge of the sentencing guidelines a prosecutor has the ability to shape how the case is presented to the judge and what charges are brought. Because of this the prosecutor can basically dictate the sentence at the outset which is a huge advantage in plea bargain negotiations. In the case of one ounce of crack and two weapons a prosecutor might offer to drop the second weapons charge and seek only a 10-year minimum sentence in exchange for a guilty plea. However, if the accused wants to challenge in court the prosecutor threatens to seek a maximum sentence – up to life imprisonment – if the defendant loses. Most people take the deal.
Fifteen year-old Lakeith Smith was confronted by police with a five of his friends late one night in 2015 and accused of breaking and entering at two Alabama homes. At some point his buddy A’Donte Washington allegedly went for a gun and police plugged him four times, killing him. Nobody contests the fact that it was the police who shot and killed Washington, but because of Alabama’s accomplice law Smith was not only tried as an adult but charged with felony murder. As Smith’s defense attorney pointed out “Lakeith was a 15-year-old child, scared to death. He did not participate in the act that caused the death of A’Donte. He never shot anybody.” Knowing that he had nothing to do with police killing his friend, Smith declined the prosecutor’s offer of 25 years for a guilty plea. Smith rolled the dice on a trial – and in less than 90 minutes the jury handed down a guilty verdict.
This case got some national attention because of what happened as Smith waited for his sentence. Perhaps reeling from the ridiculousness of his situation Smith muttered “I don’t have time for this” while he waited in court. That was the wrong thing to say in front of Judge Sibley Reynolds. Holding back his rage Judge Reynolds called Smith forward saying, “You got plenty of time for this… When I called the case earlier you said you ain’t got time for this, so I didn’t know if you had time for this now?” Smith laughed in response and said he didn’t realize the judge had overheard him. Following this display of apparent unrepentance Smith was sentenced to 65 years in prison: 30 years for Washington’s murder, another 35 for charges related to burglary, to be served consecutively. Prosecutor CJ Robinson remarked “We are very pleased with this sentence.” Others pointed out how strange it was for Smith to be convicted for his friend’s death when it wasn’t even legally considered a murder. According to the grand jury Washington’s death was ruled “justifiable homicide.” None of the unnamed police officers who gunned Washington down were prosecuted. As chief executive of the Campaign for Youth Justice Marcy Mistreet told The Guardian “It just speaks to the excessive power that prosecutors have in our system to even seek these kinds of charges.”
This is part 3 of a 5 part series on how capitalist production theories have infiltrated our criminal justice system, making American criminal justice a complete farce. In my next post we'll examine how easy it is for the innocent to get convicted along with the guilty.
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Let’s make them pay.
This is PART ONE of the series.
This is PART TWO of the series.
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