by David M. Reutter

Systematic “lying at plea bargaining allows defendants the opportunity to negotiate fair resolutions to their cases in the face of a deeply unfair system, even as that lying makes way for—and sustains—the problematic system it seeks to avoid,” wrote Thea Johnson, an associate professor at Rutgers Law School, in an article that appeared in the Georgia State University Law Review.

Johnson notes that if plea bargaining were to disappear tomorrow, defendants would lose their means of avoiding “sex offender registration, deportation, severe prison sentences, [ ] fines,” and other consequences of being convicted upon the most severe charge a prosecutor can lodge based upon the facts of the case.

In a 52-page article, Johnson explores how trials constrain lying in criminal proceedings. She then details three classifications of lies during plea bargaining: “lies about facts, lies about laws, and lies about process.” Finally, Johnson “demonstrates how the paradox of lies during plea bargaining, namely that the strategies lawyers have come up with to avoid the injustices of the system are the same strategies that make the system unknowable to those outside of it, thus allowing the core injustice of the criminal justice system to survive.”

“The basic purpose of a trial is the determination of truth.” SCOTUS said in Tehan v. United States, 383 U.S. 406, 416 (1966). Trials were deemed essential to America’s Founding Fathers. In the 1920s, plea bargaining became commonplace, but it was not until 1970 that SCOTUS approved its use.

“Plea bargaining became popular in the early twentieth century for two reasons: first, because it allowed judges and lawyers to hide their own corrupt practices—namely, using bribes to grant defendants a beneficial plea deal—and second, because the normalized use of pleas allowed the courts an efficient means of dealing with the burdens of a rapidly expanding criminal justice system,” wrote Johnson. “As a result, early courts were suspicious of plea bargaining.”

Efficiency in processing criminal cases, however, has been the main factor in allowing America’s criminal justice system to become a “system of pleas.” With overcriminalization came the need for courts to resolve cases without the burden and cost of a trail. “According to the [American Bar Association], more than forty percent of the federal criminal laws enacted since the Civil War have gone on the books since 1970,” wrote Paul J. Larkin, Jr., in a Harvard Law Review article. “The number of federal criminal statutes was one-third larger in 2004 than it was in 1980.”

Since SCOTUS approved plea bargaining in criminal proceedings, trials have virtually disappeared. One Manhattan federal judge said he only recalled one criminal trial in his four years on the bench. In Santa Cruz, California, there were no criminal trials from 2010 until at least 2012. About 95% and 97% of state and federal criminal cases, respectively, are resolved via a plea bargain.

If truth is the basic purpose, that raises a question of what is the purpose of plea bargaining. Johnson said scholars and courts should ask what trial rights should extend to plea bargaining, is plea bargaining done in the shadow of trial, and should the goal of plea bargaining be more than trial avoidance. “[M]ost importantly, should plea bargaining’s basis purpose be the determination of truth?”

She noted that explicit lies are prohibited at trial, and those who are caught lying can be charged with perjury. The rules of evidence exclude unreliable evidence and highlight reliable evidence. Ethical rules require candor by court officers. “Finally, cross-examination is intended to be an ‘engine’ for truth-seeking, allowing adverse parties to root out dishonesty or other flaws in witness testimony.”

Yet, lying in plea bargaining is not only easier, it has become systematic. “This is because the plea process, unlike the trial, is both a flexible instrument for resolving cases and often hidden from public view,” wrote Johnson. Aside from a defendant admitting guilt and the court finding the plea is “knowingly, intelligently, and voluntarily” entered, there are few formal requirements for entering into a plea bargain. As appeals are basically prohibited when a guilty plea is entered by the defendant, the process is further hidden from public scrutiny.

Plea bargains are loosely regulated. Policies of a prosecutor’s office and of individual judges dictate how pleas are handled within jurisdictions. Lax constitutional norms and wide-ranging policies make it “nearly impossible to say how a specific set of charges and a defendant’s particular background will calculate at plea bargaining,” Johnson noted. “Thus, given all this uncertainty and loose regulation, it is no wonder that lying, via plea bargaining, has taken root and thrived in a system that was once built for the determination of truth.”

Johnson’s article turned to exploring her classifications of lying in plea bargaining. The first is lies about facts. She pointed to her previous article, “Fictional Pleas,” to show how plea bargaining allows guilty defendants to plead guilty to crimes they did not commit. [See: CLN, Apr. 2019, p.1.]

That article cited a case involving a defendant who faced a single sex offense. While all of the stakeholders agreed the defendant committed a single act, he was allowed to plead to three separate misdemeanor sex offenses. This allowed him to avoid sex offender registration while the prosecutor was able to obtain a conviction and the desired amount of imprisonment.

“Fact bargaining is perhaps the original form of lying at plea bargaining,” wrote Johnson. This often involves the prosecutor and defendant agreeing to a set of facts after arrest but before an indictment is filed to define the charges the defendant will face. “For instance, the defendant may have been charged at arrest with possessing drugs and a gun, but through the process of fact bargaining, the facts are modified to indicate that the defendant only possessed drugs; the gun disappears.”

“Fact bargaining, like charge bargaining, has been practiced for decades,” according to Johnson. A problem with this type of bargaining is it fails to reflect the true facts of the case. This not only distorts sentencing guideline calculations, it makes it hard for probation officers and prison officials to understand all aspects of the case. Thus, this mode of bargaining not only conceals how the parties reached the agreement, “it stifles the determination of the truth,” Johnson observed.

Then, there are pleas where defendants are actually innocent. At least one study has found 56% of factually innocent individuals were willing to falsely confess to an offense they did not commit to obtain the benefits of the bargain. [See: CLN, June 2021, p.32.]. A bargain is especially appealing to those in pretrial detention.

When formalized before a court, these pleas are known as Alford pleas. In those cases, the defendant accepts a guilty plea while openly proclaiming innocence. The most famous example of an Alford plea involved the “West Memphis Three.” Damien Echols, Jessie Misskelley, Jr., and Jason Baldwin were charged as teenagers of murdering three eight-year-old boys in connection with ritualistic devil worship. Their death sentence was reversed after exonerating evidence was exposed, but the prosecutor threatened a new trial despite the flimsy evidence of their guilt. He offered an Alford plea with immediate release, which the three defendants accepted. While they gained release, the state also avoided a possible civil lawsuit.

Johnson then turned to exploring lies about the law. This involves pleas to crimes that do not exist. She listed a few examples. One involved a Kansas defendant pleading guilty to attempted second-degree unintentional murder. No such crime exists because it is “logically impossible for a person to have the specific intent to commit an unintentional killing.” Yet, the Kansas appellate court approved the plea because due process requirements were met and the defendant enjoyed the benefits of the bargained for sentence.

“Courts have not, however, allowed a defendant to be convicted of a nonexistent crime at trial,” Johnson noted. “Rather, it is only through plea bargaining that a defendant can secure a conviction to a nonexistent crime.”

Finally, there are lies about process. These types of lies “are the grease that keep the wheels turning,” Johnson wrote. “They give the process legitimacy while maintaining the lack of transparency that is a key characteristic of the plea process.”

As noted earlier, the trial court must ascertain that constitutional standards are met before accepting a guilty plea. To assure they are met, defendants often lie during the plea colloquy. They often say “no” when asked if they were subject to threats or improper promises in exchange for the plea.

“These lies are done with the knowledge and approval of the other actors in the courtroom, including the judge, prosecutor and defenses attorney,” Johnson wrote. “In fact, such lies are encouraged so that pleas can be recorded quickly and in accordance with statutory and constitutional mandates.”

“But, of course, defendants are promised all sorts of things, formally and informally, in order to influence their guilty pleas,” asserted Johnson. “These promises cannot, however, be acknowledged on the record if the plea is to stand constitutional muster.” Johnson noted the frequency of Alford pleas and how those cases supposedly have a factual basis despite the fact the defendant protests innocence while pleading guilty at the same time.

The article then moved to exploring the paradox of plea bargaining. Johnson noted that each of the classifications of lies described has “a beneficial purpose,” for they allow stakeholders “to negotiate just resolutions in individual cases.” The virtues that flow from the lies in plea bargains “also obscure the system from public view.”

If lying during plea bargaining ended tomorrow and the system became more transparent and accountable, individual defendants would likely be harmed. They “would suffer dire consequences, such as deportation for minor charges or a forced trial rather than a mandatory minimum sentence.” Yet, “lying at plea bargaining is the result of a series of interlocking, mandatory laws and rules that many stakeholders believe are deeply unfair and should be reformed. Thus, lying at plea bargaining is both a means of avoiding injustice and a force prohibiting meaningful reformation of laws and rules that produce such injustice,” Johnson acknowledged.

Lying at plea bargaining allows the defendant to avoid outcomes that could not be achieved without the lies. The problem, however, is that the lies “allow stakeholders to work around the increasing size and scope of the criminal justice system.” With each passing year, the criminal justice system has a massive increase in the number of inputs from the increase in crimes, criminal punishments, and civil consequences.

The lies change the outputs. “For example, if the parties lie at plea bargaining, the defendant may plead to assault rather than a sexual offense,” Johnson wrote.

The result of systematic lying goes beyond the defendant avoiding mandatory sex offender registration by circumventing the law related to his conduct. It allows legal actors to “recalibrate the system when formal change is not forthcoming,” said Julia Simon-Kerr in her article titled “Systematic Lying.” Thus, “alert[ing] us to the existence of a string and collective dissonance between moral beliefs and legal prescriptions.”

Johnson said that systematic lying in plea bargaining “makes it possible to change the outcome of the system without changing the fundamentals of the system.” She also noted that lying allows prosecutors “to avoid mandatory outcomes, either in the interests of justice or not, while also not pushing back on legislatures, the grantors of their power.”

The benefits of lying during plea bargaining comes at a cost. “In the end, lying in plea bargaining distorts our view of how and why the criminal system punishes individuals, because lying alters the fundamental input mechanics of the system while also concealing the alterations themselves,” Johnson asserted.

Johnson pointed to a reform effort in Ohio that sought to require a factual record be developed and put on the record at plea bargaining. The Ohio State Public Offender argued that lawyers need the flexibility to mitigate draconian laws under which they operate, and the proposal would have inhibited flexibility and harmed real defendants.

Therein is the heart of the dilemma for reformers. While one reformer may demand less flexibility and transparency, another will correctly argue that transparency, paradoxically, will harm real people. This, Johnson asserted, “demonstrate[s] that the conversation about reform must focus on total overhaul of the system, not piecemeal correction.” Both reformers, she said, are correct.

The current state of affairs “poses a reformer’s dilemma—should one seek truth through transparency or rough justice through unlimited plea bargaining?” asked Johnson. She pointed to a third option: “a reimagining of what the criminal legal system could and should look like.”  

Source: “Truth, Lies, and the Paradox of Plea Bargaining,” Georgia State University Law Review.

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