Trial distortion and the end of innocence in federal criminal justice.

• Author: Wright, Ronald F.

INTRODUCTION

1. GUILTY PLEAS THAT RESOLVE CASES BUT NOT QUESTIONS A. Federal Guilty Plea Growth Spurts B. Plea Bargain Theories, Looking High and Low 1. Micro-Level Intentions 2. Macro-Level Social Purposes II. ACQUITTALS AS A WARNING A. Federal Acquittal Rates and the Guilty Plea Connection B. Acquittals and the Other Displaced Outcomes C. The Mid-Level Trial Distortion Theory 1. Trial Distortion and Trial Penalties 2. Are Lost Acquittals and Dismissals Trial Distortions? 3. The Accuracy Hypothesis III. WHAT MADE FEDERAL ACQUITTALS DISAPPEAR? A. Case Volume B. Legal Complexity and Defense Counsel in the 1950s and 1960s C. Crime of the Decade D. Sentence Severity and Trial Penalties in the 1990s E. Prosecutor Power as the Leading Acquittal Culprit IV. LEGAL ENVIRONMENTS HOSTILE TO INNOCENCE A. Environmental Audits B. Trials and Tribulations by the Numbers C. The Sentencing Law Nexus CONCLUSION APPENDIX INTRODUCTION

   Listen for a while to crime victims and you will hear both frustration and resignation about plea bargaining, but you will hear no true believers. Some crime victims sound relieved that the plea bargain spares them from the prolonged ordeal of a trial: as one woman put it, "I just want it over with." (1) Others take comfort in the idea that a guilty plea holds the defendant responsible: "It's what we were looking for the last three years.... He admitted that he was involved and played a part." (2) Some note that the plea eliminates any risk of acquittal at trial: "I know there are people out there who do far worse and get off for their crimes." (3)

   Alongside these lukewarm endorsements, there are plenty of comments on the negative side of the ledger. Victims frequently say the punishment that the defendant received after a plea bargain was not what they expected, complaining about "a slap on the wrist." (4) Some question the judgment of prosecutors who are overly driven by a fear of losing or the emotional costs of a trial: "[The prosecutor] told me that if they went to trial and he gets acquitted, she couldn't live with that.... It's not for her to live with. It's for me." (5) For others, the problem with a plea bargain is that it blocks the public from learning the full story of the defendant's crime: "it prevents all the facts from coming out." (6) Worst of all, plea bargaining can pressure some defendants to accept convictions for crimes they did not commit. (7)

   It is little wonder that crime victims demonstrate such contradictory, even confused, reactions to plea bargains. Those of us who study or work in criminal justice full-time are likewise conflicted and confused about the practice, and as a result we have not yet created adequate ways to change plea negotiations for the better.

   Our current discussions of plea bargains offer little hope of improving matters because they take place either at too high or too low a level of abstraction. Sometimes we evaluate plea bargains at the case level. The trial judge asks whether a particular defendant entered a "knowing and voluntary" guilty plea, founded on some "factual basis." (8) Any plea meeting this standard will be legally sound and will meet the approval of most judges and attorneys. Yet this standard that courts use to evaluate guilty pleas at the individual case level is anemic, since the facts supporting guilty pleas can be remarkably thin, and many "knowing" and "voluntary" guilty pleas are nevertheless coercive and unjust.

   At other times, we evaluate plea bargaining at a very high level of abstraction, treating this disposition of criminal cases as a social institution that deserves our embrace, or our acquiescence, or our condemnation as a whole. Perhaps we should think of plea bargaining as a method of making criminal adjudication more efficient; (9) perhaps instead we should consider it a squalid and unnecessary procedural shortcut. (10) In any case, the point of thinking at this highest level of abstraction is to evaluate the impact of all plea bargains on criminal justice and on the social order.

   This vantage point, considering plea bargaining as a social institution, delivers genuine insights about the practice, yet it is also enervating. Because no one will abolish plea bargains entirely from the American criminal courtroom, (11) what we need is a regulatory strategy rather than further insights on the question of abolition. The case-and society-wide levels of analysis have not shown us where to regulate or how to sort the good plea bargains from the bad ones.

   A mid-level theory would fit better with the current reality of plea bargaining in the United States and would best mark the road to reform. This sort of theory would allow us to analyze guilty pleas at the system level for each jurisdiction, recognizing that in some places plea bargain practices are relatively benign, while in others there is something amiss in bargain justice.

   This Article develops a "trial distortion" theory as one possible mid-level evaluation of plea negotiation practices in particular systems. According to this theory, criminal courts in a jurisdiction produce too many dysfunctional guilty pleas when those guilty pleas distort the pattern of outcomes that would have resulted from trials. A healthy system would aspire to replicate through its guilty pleas the same pattern of outcomes that trials would have produced. Trial distortion theory calls attention to case outcomes rather than negotiations in progress, and to patterns across cases rather than practices in a single case.

   Acquittals and dismissals play a starring role in the trial distortion story. These are cases that might have resulted in a defendant's freedom, and when a system starts to produce fewer acquittals and fewer dismissals, it triggers a warning light about the truth-finding function of the criminal justice system.

   In some systems, further inquiry might show that a drop in the acquittal rate amounted to a false alarm, revealing no real basis for concern. According to a reassuring line of reasoning that I will call the "accuracy hypothesis," fewer acquittals might simply reveal a system that produces increasingly accurate outcomes. The accuracy might be achieved through a higher quality of cases entering the system, an improvement made possible when prosecutors make more time to screen more carefully the cases referred to them. Perhaps law enforcement agents get better at collecting the evidence needed to win a case. Similarly, downward trends in the acquittal rates might merely reflect better trial preparation and performance by prosecutors, or better negotiating skills among all the attorneys.

   In some other systems, however, a drop in the acquittal rate could point to very real problems with the quality of criminal justice. Lower acquittal rates might show that prosecutors sell difficult cases too cheaply and only take easy cases to trial. On the other hand, lower acquittal rates might indicate that defendants sell too cheaply, either because timid or underfunded defense attorneys cannot or will not challenge the prosecutor's weakest cases, or (the most chilling possibility) because the judge and the prosecutor threaten the defendant with too great a penalty for going to trial. (12)

   It is only possible to choose between these theoretical possibilities--the trial distortion theory and the accuracy hypothesis--by observing particular criminal justice systems at work; accordingly, this Article interprets the patterns of guilty pleas and acquittals in the federal criminal justice system. (13) Acquittals are steadily disappearing from the federal system. Indeed, acquittals are disappearing more quickly than any other outcome, including trial convictions and dismissals, as guilty pleas expand to displace all other outcomes in federal court. The drop in acquittals over the last thirty years flags some serious doubts about the quality of justice in the federal system today. (14)

   A close look at the system tells us that increasing accuracy probably does not explain this trend; unfortunately, the pattern has unfolded because federal prosecutors have accumulated so much power under the sentencing laws that they can punish defendants too severely for going to trial. Federal law must respond to the current distorting form of plea negotiations by restoring counterbalances to prosecutorial bargaining power and by limiting the techniques available to reward defendants for waiving their trials.

   Part I of this Article reviews the underappreciated history of guilty plea rates in the federal criminal justice system. Surprisingly, federal guilty plea rates stayed flat during some periods and even declined significantly during the 1950s and 1960s. After a relentless climb from the early 1970s to the present, however, the most recent numbers show the highest rates of guilty pleas in the history of federal criminal justice. Part II documents how acquittal rates moved down whenever guilty plea rates went up. In fact, since 1971 acquittal rates have dropped faster than other outcomes, such as dismissals or trial convictions.

   What explains the disappearance of acquittals in recent decades? In Part III we look for answers based in the history of federal criminal justice. Shifts in the types of crimes charged explain some of the patterns. The strengthened presence of defense counsel accounts for the declining guilty plea rate in the 1950s and 1960s. However, the most important cause of rising guilty pleas and falling acquittals in recent decades has been a dramatic increase in prosecutorial resources. Surprisingly, federal prosecutors today handle far fewer cases per attorney than they did in the middle of the twentieth century.

   Part IV pursues a deeper inquiry into federal plea practices, concentrating on more recent years. Building on the premise that each of the ninety-four federal judicial districts employs its own plea practices with distinctive side effects, I analyze district-level...