In 1978, a small time crook accused of forging a check for $88 was told that if he refused to take a five-year plea bargain, the prosecutor would re-indict him as a “habitual offender.” He refused the deal and was ultimately convicted and sentenced to life. This is an example of coercive plea bargaining, in which the defendant is offered a relatively light sentence to plead guilty, or a vastly more punitive sentence if they dare to exercise their constitutional right to a jury trial and lose. Recently, in another example, prosecutors in the “Varsity Blues” college admission scandal that netted a number of Hollywood celebrities, defendants were offered two months if they plead guilty, but threatened with 20-year prison sentences if they lost at trial.
Coercive plea bargaining has many faces. Prosecutors regularly stack multiple charges, more than the conduct merits, in order to get the defendant to plead to a single lesser charge, or risk being found guilty on all charges and imprisoned for a much longer period. This is also used in conjunction with legislatively-ordered mandatory-minimum sentences.
In Massachusetts, the DA asked the Supreme Judicial Court to vacate 64 guilty pleas after the state drug lab was caught falsifying test results. All of the individuals plead guilty “without having actually possessed controlled substances and have, for more than a decade, suffered the consequences of a criminal record after serving their sentences.” They were each coerced into taking a plea deal rather than risk lengthy mandatory-minimum sentences “without knowledge of evidence of their innocence or the gross misconduct in the Hinton Lab.”
Another tool at prosecutor disposal is holding people in jail with unaffordable bail. It can take months or even years to see trial. Data from Brooklyn Defender Services in New York found that their incarcerated clients were nine times more likely to plead guilty than those who had been released.
Finally, innocent people are regularly coerced into condemning themselves because prosecutors threaten to indict someone the defendant cares about if they don’t take a plea deal. One such example is Viken Keuylian, who plead guilty to wire fraud because his sister was threatened with indictment. Only after a civil lawsuit was filed was it discovered that the prosecutors had made a mistake.
These guilty bargains can also represent corruption and even allow the defendant more leniency than he deserves. This usually occurs because the accused holds a position of power or has a lot of money at his disposal. Serial child molester Jeffrey Epstein, for example, received a slap on the wrist, in exchange for a guilty plea, and the court agreed not to prosecute any of this co-conspirators.
Prosecutorial misconduct is only uncovered when the defendant decides to take the case to trial. In 2008, Senator Ted Stevens of Alaska refused to plead guilty to one felony charge with no jail time, and was instead indicted on seven felony counts. The star witness against him then recanted his testimony and an FBI whistleblower disclosed a pattern of systematic cheating by prosecutors in a 500 page document called the Schuelke Report. Ultimately, the Justice Department asked the judge to dismiss the indictment, but none of the misconduct or exculpatory evidence might ever have been revealed if he had taken a plea.
In 2017, the case against Cliven Bundy for inciting violence against federal officials unraveled after a judge determined prosecutors withheld documents and misstated facts. In 2018, a jury acquitted the wife of the Orlando nightclub shooter after the defense showed that her confession to the FBI that she had helped ‘case’ the club was contradicted by her cell phones geolocation data. The prosecution was legally obligated to share that beneficial evidence with the defense but they did not, earning a scolding from the trial judge. It is impossible to say how many prosecutors commit misconduct because so few prosecutions go to trial.
Coercive plea bargains have turned our criminal justice system into a mass incarceration machine and with as few as 2% of federal cases and 6% of state cases actually seeing trial, prosecutorial misconduct is rarely detected. Even the innocent can be coerced into confessing their guilt if enough pressure is applied, and that is a problem in America, where every person deserves equal access to justice.