Truth, Lies and Plea Bargaining

Why would defendants plead guilty to a crime they haven’t committed?.

Often it’s to ensure fairer and more responsive treatment at the hands of a justice system that otherwise offers them few other options, says a Rutgers University law professor.

In a forthcoming paper in the Georgia State University Law Review, Thea Johnson argues that lying is at the heart of a plea bargaining process that “allows defendants the opportunity to negotiate fair resolutions to their cases in the face of a deeply unfair system.”

But at the same time, Johnson adds, lying “makes way for — and sustains — the problematic system it seeks to avoid.”

The “paradox” of lying to achieve fairer treatment can’t be resolved by simply making the system more transparent, Johnson asserted.

“If lying at plea bargaining disappeared tomorrow, many defendants would suffer dire consequences, such as deportation for minor charges or being subjected to outrageous mandatory minimum sentences,” she wrote. “These defendants would lose their ability to avoid the injustices of the system.”

Effectively, the plea bargaining that occurs daily in courtrooms across the country helps the justice system perpetuate systemic inequalities, she wrote. It depends on deception to “sidestep the law without changing the law.”

In some examples cited in the paper, a Virginia defendant in Virginia charged with transporting marijuana pleaded guilty to trafficking a different type of drug altogether; a New York defendant charged with animal cruelty pleaded guilty to trespassing even though no trespassing was involved.

Most bizarrely, in 2007, a Kansas court allowed a defendant to plead guilty to “attempted second-degree unintentional murder” even though the court acknowledged that “no such crime existed.”

In each case, the guilty pleas helped the defendants obtain a lesser punishment on conviction or avoid a trial.

Such cases degrade trust in the system, Johnson argued.

“Plea bargaining became popular in the early 20^th 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 courts an efficient means of dealing with the burdens of a rapidly expanding criminal system,” the paper said.

Plea bargains basically require the defendant to relinquish the right to challenge future problems with the case — including that they had “lousy counsel.”

To that end, individual prosecutors, despite office policies, may have their own sense of what justice entails, and therefore have their own “internal rules” for plea bargaining that include lying.

‘A Taxonomy of Lying’

Johnson describes a taxonomy of lying, noting that she does not mean to identify any of them as either “good” or “bad,” but rather, to showcase how the plea bargains regularly result in lies.

According to Johnson, three types of lies are used during plea bargaining: lies about facts, lies about law, and lies about process. Each type has a long-term corrosive impact on the justice system, even if defendants use them to mitigate court processes that otherwise harm their case.

Lies about facts are used by parties to manipulate evidence in a case. For example, a collection of evidence about a single felony offense will be broken down into separate misdemeanor offenses labeled as separate “acts.” Even though a judge, prosecutor and defendant agree it was only one criminal act, the multiple misdemeanors would be honored to lessen the penalty, yet still get a semblance of justice.

Lies about law involve lawyers twisting statutes until they no longer represent the original law.

For example, prosecutors will argue that someone committed a crime that doesn’t fit the definition of an existing crime, and so the defendant will plead guilty to a crime that, on paper, doesn’t exist so that they can set the terms. In Kansas, a court found a defendant could plea to an attempted “second-degree unintentional murder” even though Kansas doesn’t recognize the crime.

Lies about process involve making a guilty plea, but the realities of how and why they decided to plead guilty are hidden from the public. For example, defendants will lie during colloquies, a series of questioning from the judge. They will also have to say they entered the plea without any coercion, offering, or exchange, which often times may not be the truth, Johnson details.

“Examining this paradox leads to the conclusion that conversations about reform must focus on total overhaul of the system, not piecemeal correction,” Johnson adds. “Something closer to abolition than alteration is the appropriate response to a system so entangled that lying is the only way to reach a just resolution.”

Future Visions for Reform

Johnson details areas for reform that could make meaningful and impactful change, taking into consideration that attempts to make the system more transparent and accountable would likely harm individual defendants.

For starters, Johnson understands that many scholars point to progressive prosecutors for answers, noting that their discretion to help defendants can be used for good. To that end, Johnson says while they can be transparent and help individuals and construct fair pleas, they cannot change the law.

Since mandatory minimum sentences are the most likely thing to lead to plea bargaining, Johnson explains that it’s also an area that must be touched by reform as it’s been largely avoid. Similarly to how areas have been avoided by reformists, the same areas have been avoided by data collectors as well, leading Johnson to write that more research must be done.

Moreover, studies have found that Black defendants fare more poorly than white defendants when analyzing plea bargaining deals and offerings.

Overall, Johnson argues that in order for the plea-bargaining system to make way for sustained and fair justice resolutions, many of the “interlocking and mandatory laws” need to change.

“Reform efforts that fail to address the interlocking nature of substantive criminal law, procedural law, sentencing law and collateral consequences is unlikely to create a more just criminal legal system,” Johnson concludes.

“To fix these problems, the entire system needs to be reworked and reimagined… lying is a symptom not of some hidden disease within the body of system; rather, the disease is the system and an exploration of lying at plea bargaining shows just how all-encompassing the illness is.”

Thea Johnson is an associate professor of law at the Rutgers University School of Law. Johnson’s concerns include the development of criminal adversarial systems with an eye towards how lawyers and policymakers can improve the fairness of the criminal justice system.

The full paper can be accessed here.

 Andrea Cipriano is a TCR staff writer.