Special Report: The Crime Debate

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.

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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.

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