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Criminal Defendants Are Shook Boys. Why There Are No Felony Trials.

The famous words of musician, chicken tycoon, and luxuriously bearded American Kenny Rogers:

You've got to know when to hold 'em

Know when to fold 'em

Know when to walk away

And know when to run

Not only the chorus of a country classic, but words of wisdom for any criminal defendant. There comes a time in every criminal case where he must choose whether to plead guilty or gamble by going to trial.

As it turns out, almost every criminal defendant decides to fold ‘em rather than face the government in court. According to the Virginia State Sentencing Commission, 91% of felony cases in circuit court ended in a guilty plea in fiscal year 2018. And that’s not even including felonies that are reduced to misdemeanors by plea agreement. Why are criminal defendants such a bunch of shook ones when it comes to criminal trials?

The simple explanation is that most folks get a better result by pleading guilty and cutting a deal with the government. The basic idea is that in exchange for giving up all their pesky constitutional rights, defendants get a known and more lenient result. The prosecution saves time and resources, judges don’t have to spend days on a single case, and the defendant spends less time in jail/prison. Everyone wins. Right?

What’s gone wrong is that even criminal defendants with strong defenses and/or facing weak cases are scared shitless of going to trial. And they’re scared for good reason. The Virginia Constitution gives the prosecution the right to request a jury trial. And jury trials have proven very unkind to defendants. In fiscal year 2018, 49.8% of jury sentences were above the high end of state sentencing guidelines compared to only 8.7% of judge sentences. In other words, defendants who rolled the dice and went to jury trial were close to 6 times more likely to be sentenced above sentencing guidelines. And as I noted in a previous post, not only do juries sentence over guidelines, they’re the Barry Bonds of smashing sentences over guidelines. The median jury sentence in FY2018 was more than 4 years over the high end of state sentencing guidelines.

Let me give you a specific example that any defense attorney who practices in Virginia Beach knows all too well. A defendant is charged with possession with intent to distribute a schedule I or II substance (things like coke, molly, heroin). As a matter of policy, the prosecutor’s office requests a jury trial in every one of these cases. If the defendant pleads guilty, he’ll likely be sentenced near the low end of his guidelines (something like 1 year if he doesn’t have a terrible record). Let’s say for the sake of my illustration that it’s a really weak case. It’s so weak that we think that we have a 75% chance of a “not guilty” if we go to trial. The decision to plead “not guilty” and go to trial should be easy right?

Nope. If we plead not guilty and lose, the minimum punishment from a jury is 5 years in prison. Minimum. Let’s frame that like it’s a twisted Vegas casino game. You walk into Caesar’s Palace and there’s a giant wheel with one hundred numbers. Each spin of the wheel stops at one number. Numbers 1-75 are winners. Numbers 76-100 are losers. Just for the sake of illustration, let’s say that the value of one year of freedom is $50,000. (It would be a lot more for me. If you gave me a cool million, I think I’d consider going to prison for a year. But we’ll go with $50,000 because there’s some poetic justice in it being roughly the price of one year of incarcerating a person).

If I spin and the wheel hits a number from 1 to 75, I win $50,000 (since I’ve been acquitted and get one year of freedom more than what I would have received under the plea deal). A 75% chance of winning $50,000 sounds great right. The problem is that there’s a twist to this game. If you land on 76-100, you owe the casino $250,000 (the value of 5 years of lost freedom). Is it still a good bet? Let’s do the math. Over the course of 100 spins, probability dictates that you would expect to win 75 times. 75 x $50,000 = $3,750,000. I would expect to lose 25 times. 25 x $250,000 = $6,250,000. That means over 100 spins, I would expect to lose $2.5 million. That’s a totally shit bet. Even with a 75% chance of victory, you should plead guilty every time with those odds. And that example actually drastically understates the risk of going to jury because 5 years is the minimum jury sentence. A more accurate illustration of the risk would be that hitting a losing number means you randomly lose somewhere between $250,000 (the minimum 5 years) and $2,000,000 (the maximum 40 years).

I’ve represented thousands of people charged with felonies. You might not believe it, but most of them are rational actors. When they’re presented with the costs and benefits of going to trial, they weigh the likeliest outcomes, and make a rational choice. And shittily, the rational choice for most people is to plead guilty even when the government’s case sucks.

Should we care that the system is rigged to discourage all but the craziest defendants from going to trial? I think so. Convicting people of crimes they didn’t commit is obviously morally wrong, but it’s also economically disastrous. Incarceration has costs. Big costs. Something on the order of $40,000 to $50,000 per year from the taxpayers to house an inmate. And that doesn’t include any of the indirect costs such as lost wages of incarcerated persons, government support required for the children of incarcerated parents, increased criminality of children with incarcerated parents, among many others.

The prevalence of guilty pleas has received a lot of negative coverage. Some scholarly types have even suggested banning plea agreements. I’m definitely not on board with that idea. Plea bargaining makes perfect sense for many, perhaps most criminal defendants. All I’m advocating for is a system where it’s not suicidal for people to actually have the audacity to plead not guilty. I don’t mean a system with no risks (there will always be risks). Merely a system where the trial tax for losing isn’t 500% to 600%.

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