In places as diverse as Anchorage and El Paso, Nassau County and New Orleans, get-tough prosecutors are promising to ban plea bargaining. Too many criminals get off easy, they insist; take away plea bargains, and more will get the punishments they deserve. But these officials may want to consider what happened in the Bronx when prosecutors there tried the same thing. The ban clogged the courts, made for less speedy justice, and may actually have returned more guilty defendants to the street.
Although the very mention of plea bargaining conjures up images of shifty defense lawyers, it was actually a prosecutorial invention borne of pragmatism. By the middle of the nineteenth century, prosecutors, disenchanted with an increasing rate of acquittals, turned away from chancy jury trials and toward plea bargaining, where they could secure convictions for the apparently modest price of easing the charges. By 1860, with the advent of municipally controlled police departments, caseloads had so grown that jury trials were already the exception. In 1971, the U.S. Supreme Court gave the long-standing practice its first official approval, acknowledging that if every case went to jury trial, resources would have to multiply by "many times." Today, more than 90 percent of all cases in criminal courts are disposed of without trial, with 80 percent of all felony indictments ending in guilty pleas.
It's true that numerous scholars and presidential commissions have criticized plea bargaining as "assembly-line" or "bureaucratic" justice. It's also true that defendants are frequently the lucky beneficiaries. To make plea bargaining work judges must offer sentences attractive enough to convince defendants to forfeit their constitutional right to a jury trial and the possibility of being acquitted. Knowing that the system simply cannot try every pending case, defendants have learned to insist on the best deal. Consideration of the prosecution's evidence, the defendant's culpability, or the victim's interests rarely comes into play.
Four years ago in the Bronx, District Attorney Robert Johnson promised to change all that. Decrying the status quo as an "Arab bazaar" where criminals frequently held out for second and sometimes third offers before accepting pleas, he forced every defendant to choose up front: Plead guilty to the most serious charge faced or go to trial. It made for a great sound bite and many officials genuinely welcomed the renewed toughness.
But then defendants started calling Johnson's bluff. With no new courtrooms under construction, no new judges being appointed (the Bronx actually has 9 percent fewer judges than it did in 1992), and no limit on the number of felony arrests, pending cases in the Bronx mounted. At the end of September 1992, just prior to ban's imposition, 2,275 pending felony indictments—or 51 percent of the Bronx total—exceeded the six-month statutory period allotted for a speedy trial. A year later, despite a drop in crime that resulted in 7.5 percent fewer indictments, the number of felony cases pending over six months had risen to 2,820, or 60.5 percent of the total. The proportion of all pending cases over 365 days jumped from 18 percent to 30 percent, while cases pending over 450 days exceeded 18 percent of the total inventory. Today, 60 percent of pending felony indictments in the Bronx remain over six months old.
The aging of cases has had a dramatic effect on pre-trial detention costs. By September 1993, the average days in custody for Bronx defendants increased to over 160 days, while the average for the rest of the city decreased to under 120 days. The number of Bronx defendants detained over one year increased to 423, a proportionate increase of 47 percent over 1992, accounting for almost half of all New York City's one-year or over detainees, at an annual cost of $41,588 each. Today, the Bronx continues to lead all other major NewYork City counties in days in custody.
Has the investment at least translated into stiffer penalties, as promised? Not really. Overcrowding has become such a problem that judges must frequently dismiss charges altogether simply because there's nowhere to keep all the defendants with pending cases. Lockup at Riker's Island is no picnic, but the Bronx has become so well known for acquittals and dismissals—its acquittal rate in jury trials between 1992 and 1996 was 35 to 40 percent, the highest in New York City—that defendants are willing to wait it out.
Besides, the longer defendants languish in jail, the more the prosecution's case erodes as witnesses move and recollections grow fuzzy. This was dramatically apparent in 1993 and 1994 during the height of the plea ban, when the Bronx had the highest rate of dismissals in indicted cases in New York City, between 17 and 18 percent, while guilty pleas plummeted to a low of between 70 and 73 percent.
Even the defendants who plead guilty don't necessarily do more time. In order to relieve the strain on the system, judges have been imposing lighter sentences—often the minimum mandated by law—just to make pleading guilty a more palatable option. According to a September 1994 report by the Division of Criminal Justice Services, average prison sentences in the Bronx were actually shorter than those imposed prior to the ban, even though the percentage of felony convictions to the most serious charges had increased.
It's true state lawmakers could undo some of this by imposing stiffer minimum sentences or insisting on harsher judges, but that would only intensify the judicial overload problem. Conversely, the state could invest more money in the courts or ease the load imposed by mandatory sentences for relatively minor drug offenses—subsequent to 1992, the Bronx has never tried more than 9 percent of all felony cases. For their part, the district attorney and the New York City police could exercise greater discretion in the prosecution of felony arrests, thus reducing pending caseload in order to assure a speedy trial in every indictment. But none of these moves have political support.
That leaves only one alternative to a system-wide meltdown: a return to old-fashioned plea bargaining. Sure enough, it turns out that since 1993 Johnson has quietly allowed between 32 and 38 percent of indictable defendants to bargain charges in lower court before their cases have gone to the grand jury. More recently, since 1995, Johnson has even reintroduced plea bargaining back into the state supreme court. The ban is still technically in effect, but defendants no longer believe it and defense attorneys caution clients against pleading to top counts. "I've seen more exceptions to the policy than I have the policy," says one Legal Aid Society lawyer. At higher levels, too, Johnson has opened back room channels where he will offer package plea bargains to as many as 20 indicted cases at a time, according to supervising defense attorneys.
Of course, even hard-liners may wonder about civil liberties in the new Bronx system. Every day in the basement of the criminal court, one bewildered defendant after another is pulled out of a holding pen and led before a lower-court judge. Defendants are given the opportunity to plead guilty, then and there, to the prosecutor's offer of a lesser charge and the judge's offer of a reduced sentence, which often involves imprisonment of two years or more. If the defendants, many of whom have been arrested only several days earlier and have had no more than one brief meeting with an attorney, decline, the offer is withdrawn and they are indicted and head to trial in supreme court. Pleas happen in rapid succession; defendants frequently have less than a minute to decide. In many instances, police reports are still not available and neither side has had an opportunity to check the credibility of witnesses or consider exculpatory evidence. Inevitably, the process exaggerates preexisting biases about class, race, and ethnicity.
The issue has come full circle. Bronx justice hasn't become particularly swift, stiff, or, for that matter, just. Too many convicted defendants still get off with light sentences, but the system lacks the resources to impose stiffer punishments. Whether well intentioned or not, prosecutors eager to crack down on crime need to realize that they may be powerless to do so—at least if they are acting on their own.