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Except For That, Of Course

The silliest part of any guilty plea is the part when the court asks if anyone has threatened or coerced the defendant into pleading guilty.

People are inclined to say no when it’s obviously the answer the judge wants to hear no matter what the circumstances happen to be. The desire to please is intense enough when the person asking the incriminating question has a badge and gun, but it’s even more powerful when the person asking sits high above the fray wearing a robe and keeps getting called “your honor” by everyone in the room.

Several of my clients have given an admirable hell yes and briefly tried to elaborate before being cut off by others suddenly made aware of the absurdity of the question. I respect the clients for it, but it never works out. We all pretend that criminal defendants plead out of a sense of responsibility, as it’s important to maintain the illusion that the system has some integrity, but the truth is that people rarely plead guilty because they acknowledge they did wrong and want to take their cruel but usual lumps. We want to believe the tortured confessions. We want to trust guilty pleas too.

People who take the plea because they’re guilty and feel a sense of duty to admit it are not just rare. They are also almost always insane, incapable of noticing that we’ve all agreed that nobody is supposed to admit to being forced or coerced even though everyone was.

Take the guy I represented who wouldn’t plead not guilty to assault at what we in Arizona call a “not guilty arraignment” because he did in fact do it, for instance. He’d stabbed a guy for no reason because he was totally insane and was denied mental health treatment by the state because he was too crazy to fill out paperwork I barely understood and would’ve struggled to complete, then after realizing what he’d done chased the guy around with the knife screaming “I’m so sorry, please stop running and let me apologize.” He was doing that when the police arrested him.

Crazy? I sure thought so, but the doctors appointed from the list of doctors who don’t think too many people are too crazy to be sent to prison disagreed. The client explained to the doctors that my job was to say not guilty, the prosecutor’s job was to say guilty, and the judge’s job was to sit in a chair, so he obviously understood what was going on, the doctors said. He eventually pled guilty after being found competent, but it was after getting an offer.

The point is to plead because you have an offer that provides some benefit, not because of your conscience. No decent human being could think that most defendants deserve what they’d actually have to get losing at trial. In Arizona, at least. When asked about coercion, that client told the judge he was in fact coerced because everyone told him that things would be worse if he didn’t plead. The judge gave some weak explanation about how that isn’t really coercion, and the client eventually caved in and acknowledged he wasn’t coerced even though he was. Everyone pretended everything was just fine. I wondered if he might have been the only sane person at the hearing.

Another problem is that it’s difficult to plead because of your conscience when you aren’t totally sure what you did wrong, and most people don’t really understand the elements of most offenses in the first place. The elements of many crimes are so intricate most prosecutors don’t understand them. Juries don’t understand them either. Did the defendant most likely do something wrong? Guilty! Why not admit to doing something you don’t understand and get off easy rather than go through with a trial for something you don’t understand and get way more time?

Think about how we’d view a similar coercive colloquy in a police interview room. An innocent guy is sitting in a tiny, brightly lit cell after months of waiting and is told he could admit and spend ten years in a similar cage or deny and die in the same cage. Was he coerced? Threatened? Move it to a courtroom. A guard stands by, a prosecutor foams at the mouth for the maximum, a well-intentioned defense lawyer says things could get much worse, and a judge applies pressure to plead because pleas are quick, trials take time, and dockets are too full in the first place. What’s the result?

As it stands right now, almost every plea is coerced. Almost every plea is the result of threats. If powerless little old me goes on the record in every hearing and screams at my clients to plead guilty because they’re goners otherwise, the pleas are fine. If powerful little prosecutors go on the record and scream about clients getting freedom or else a cage or life in a cage or else death, the pleas are fine.

If a cop hold a gun to a client’s head and makes them sign a confession, it might be a problem. It casts doubt on whether they’re admitting to something of their own free will, and it should. When the system as a whole effectively does the same, however, it’s hunky dory.

The last lie, the one we all believe, is the game where we make the obviously coerced defendant claim he wasn’t coerced. It’s the worst part of it all, really, and we ignore it because we just don’t have the resources or the desire to do it right. A plea to avoid the cage is fine because we’ve got more cages than we need and somebody has to fill them.

The system pretends to avoid coercion by confusing or reprogramming the coerced after we’ve already invested in a conviction. We convince them they aren’t coerced, but they all are. There is no truth. There are incentives, however; incentives to confirm what we think we know and mandatory sentencing laws to discourage people from challenging it.

The courts tirelessly fight to make it look voluntary because we couldn’t keep it up otherwise. We’ve avoided the coercion that doesn’t impede our efficiency, but we’ve ignored the biggest coercion of all.

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One Response to "Except For That, Of Course"

  1. […] wrote before about how silly it is to pretend at the change of plea hearing that the defendant wasn’t […]

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