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Dramatic Increase in Percentage of Criminal Cases Being Plea Bargained

by Matt Clarke

Over the course of the past few decades there has been a significant increase in the percentage of criminal cases being plea bargained and a corresponding decrease in cases that are taken to trial.

According to many legal experts, the driving force behind this change is an increase in prosecutorial power. Through the use of mandatory minimums and other sentencing enhancements, the power to sentence convicted defendants is passing from judges to prosecutors as legislators continue to pass laws that remove judges’ sentencing discretion but allow prosecutors to decide whether to charge defendants under harsh or more lenient statutes. The effect of these changes has been to increase the risk exposure of defendants going to trial, which creates a greater coercive effect for them to agree to plea bargains.

“Judges have lost discretion, and that discretion has accumulated in the hands of prosecutors, who now have the ultimate ability to shape the outcome,” stated University of Utah law professor Paul Cassell, who was formerly a conservative federal judge and prosecutor. “With mandatory minimums and other sentencing enhancements out there, prosecutors can often dictate the sentence that will be imposed.”

“We now have an incredible concentration of power in the hands of prosecutors,” noted former Assistant U.S. Attorney Richard E. Myers II, an associate professor of law at the University of North Carolina. He added that the scales of justice have been tipped so heavily in the prosecution’s favor that, “in the wrong hands, the criminal justice system can be held hostage.”

According to some experts this has already occurred, resulting in a dramatic reduction in the percentage of cases being tried by a jury. Since 1977 the ratio of federal criminal defendants who opt for a jury trial has decreased from one in four cases (25%) to one in thirty-two (about 3%).

The federal statistics are somewhat skewed by an increase in immigration cases for which trials are rare, but even state felony prosecutions – which do not involve immigration issues – show a substantial decrease in the percentage of criminal cases that go to trial.
According to the National Center for State Courts, 8% of all state felony cases resulted in trials in 1976. By 2009 that percentage had fallen to 2.3%. The Center also found that, while caseloads tripled, the number of jury trials increased only slightly and the number of cases in which judges determine guilt or innocence declined sharply over the same time period.

Those statistics were based on data from nine states which account for about a third of the nation’s population. Most of the nine states have mandatory minimum laws, sentencing guidelines or had enacted tougher sentencing laws. The U.S. Department of Justice’s Bureau of Justice Statistics determined that the ratio of plea bargains to trials doubled between 1986 and 2006 based upon partial state-felony prosecution data in a nationwide survey.

The federal data also indicated a sharp reduction in the percentage of cases that were dismissed or ended in acquittals. In 2009, nine of ten cases resulted in a plea bargain while one in twelve ended in dismissal. From 1979 to 2009, the acquittal rate dropped from one acquittal per 22 guilty pleas to one in 212 guilty pleas.

Ronald Wright, a Wake Forest University law professor and former federal prosecutor, believes that the steep decline in acquittals is caused, at least in part, because criminal defendants who might have winnable cases or are even innocent believe the risk of going to trial is too great, and thus are coerced into accepting plea bargains.

Another factor that contributes to the increase in plea bargains is lengthy stints in jail for pre-trial detainees who can-not afford to make bond, who accept pleas in order to escape oppressive jail conditions. [See: PLN, Nov. 2012, p.1]. Additionally, overworked public defenders have an incentive to encourage defendants to take plea deals as a means of handling their large caseloads.

Florida is one state where the coercive nature of harsher sentencing laws is especially apparent. In the 1990s, the Sunshine State greatly toughened its felony sentences. As a result, defendants who exercise their constitutional right to a jury trial can receive prison terms of up to 20 times those given to defendants who plead guilty. The reason for this disparity is that prosecutors often dismiss more serious charges that carry longer sentences as part of the plea bargaining process.

This huge sentencing gap in plea bargained cases versus those that go to trial has led one prominent Florida criminal defense lawyer to pull out a calculator when speaking with a new client, to demonstrate the increased risk of going to trial.

“They think I’m ready to charge them a fee, but I’m not,” said Denis M. deVlaming. “I tell them in Florida, it’s justice by mathematics.”

Worse still, judges and prosecutors tend to become upset if a defendant maintains his or her innocence and demands a trial. This is especially true due to cuts to the courts’ and district attorney offices’ budgets, which makes judges and prosecutors increasingly determined to avoid costly, time-consuming trials. Of course defendants are not supposed to be penalized for exercising their constitutional right to a jury trial even in difficult budgetary times. Nonetheless, it happens.

“There are some judges who will punish you for going to trial,” acknowledged Bill Cervone, the state attorney in Gainesville, Florida and former head of the Florida Prosecuting Attorneys Association. “Legally, you cannot impose a longer sentence on someone because they exercised their right to trial. Factually, there are ways to do it.”

John L. Kane, Jr., a U.S. District Court Judge in Colorado, agreed. “How many times is a mandatory sentence used as a chip in order to coerce a plea? They don’t keep records,” he said. “That’s what the public doesn’t see, and where the statistics become meaningless.”

One example is that of Orville Wollard of Polk County, Florida, who fired a handgun into the wall of his house to scare his daughter’s boyfriend into leaving. Wollard claimed that he was merely protecting his family from the boyfriend, whom he said was a violent drug dealer who had repeatedly threatened them. He also denied any intent to hurt the boyfriend. Therefore, he refused a plea bargain for five years of probation, and demanded a jury trial.

In 2009, Wollard was convicted of aggravated assault. Because the crime involved the discharge of a firearm he received a mandatory minimum sentence of 20 years. In a sentencing hearing statement, Wollard said he felt like he was living in “some banana republic.” The judge sympathized, saying that were if not for the mandatory minimum he would impose a different sentence, but that he was “duty bound” to impose 20 years in prison.

A more recent example is that of Marissa Alexander, 31, who was prosecuted in Jacksonville, Florida for firing a warning shot into a wall during an altercation with her husband, who had a history of domestic violence. She went to trial, was found guilty of aggravated assault and on May 11, 2012 received a mandatory minimum 20-year sentence under Florida’s 10-20-life law. She had been offered a three-year plea bargain, which she rejected because she believed she was innocent.

That’s a harsh price to pay for exercising one’s constitutional right to a trial, and a price that more and more defendants are forgoing in favor of plea bargains.

Sources: New York Times,,,

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