A (4:13)

Judd, how do plea bargain sentences compare to trial sentences? If a defendant is found guilty, they're.

B (4:20)

Usually one half to one third of what they would get if they went to trial. That's called the trial penalty. The plea bargain is designed from the defendant's standpoint to get him a lower penalty than he would face if he was convicted at trial. It's not to be unexpected that a plea bargain sentence, on average, would be lower than the similar sentences imposed after a trial. So you might be a low level guy in a big drug distribution conspiracy, let's say a cocaine distribution conspiracy. The guy at the top of, say, 14 defendants. That would be a typical case in my court. Yeah, he's a really bad guy, and he distributed tons of cocaine, and he ought to go away for a long time. Down at the bottom is what I might call a schnook, a person who is maybe a courier and transported a few grams of cocaine from one place to another in return for a few hundred dollars. But under the law, all the conspirators are considered collectively for sentencing purposes. And so the conspirators, each of them, face a 40 year mandatory minimum because of the many kilos of cocaine that the conspiracy as a whole had distributed. You now are representing Mr. Schnuck, and you go to the prosecutor and you say, how can you give my guy 40 years? He admits that he was involved in one little transportation of a few grams. And the prosecutor says, yeah, you're right. I'll tell you what, since I don't want to go to trouble going to trial against this guy, if you plead guilty in two weeks, I will give you a 10 year count. To an outsider like me, 10 years sounds an awful lot of time for someone who just transported a few grams of cocaine. But to the guy himself, it's a huge reduction from the 40 years he would face if he went to trial and was convicted as part of this conspiracy. He never thinks he's getting a good deal, but he thinks he is. Getting a deal he can live with, but it's still very harsh.

A (6:40)

One of the objectives of the mandatory sentencing that you talked about that was passed on a bipartisan basis by Congress in the 1980s was consistent sentencing. Did that work? Did sentencing become more consistent? Did it become fairer?

B (6:58)

No. And this is something that is not so well known even to some of my colleagues. What happened was that sentencing, in effect, was transferred from the judge to the prosecutor. In the cases I've just given, the prosecutor is saying, you'll plead to a 10 year count rather than go to trial on a 40 year count. There's no judge who would give that guy more than 10 years for transporting a few ounces of cocaine. Maybe a lot of judges would love to give him much less, but they can't because the law says they must impose these mandatory minimums. Sentencing is really being determined by the prosecutor. Now there are prosecutors and prosecutors even within the same office. You will find relatively tough prosecutors and relatively softer prosecutors. It's the Lyme prosecutor who always makes these decisions. If you're lucky, and Mr. X is the prosecutor, he may give you a five year count in the example I just gave, whereas Mr. Tough Guy may say, I'll give you a ten year count, but only if you plead within the next week, and otherwise it goes up to 20 years. So the prosecutor is determining the sentence. But there's tremendous variation among the prosecutors, and therefore you still have variations in sentencing that are totally irrational. No one knows this because unlike the old days where you could compare the sentences of one judge in one district to another, now there's no data to compare the sentence given by prosecutor Smith with a sentence given by prosecutor Jones. It's all arrived at in oral secret agreements in the prosecutor's office. And no one knows anything other than the bottom line. He's going to plead guilty to a five year count, a 10 year count, a 20 year count, or whatever.

A (9:00)

That is horrifying. If you look at the several million people that are in prisons in the United States, can you talk about what their criminal activity they were convicted of was and what the average sentences are? What do we know about the people in our prisons?

B (9:21)

We know that the United States leads the world by a substantial margin and in the number of people it puts in prison and jails. For the last 20 years, it's been over 2 million every year. That is 25% of all the people in jail and prison in the world. We used to say, when I was growing up, the United States was the leader of the Free world. Well, now we're the leader of the unfree world in the sense of we lock up so many people. The second thing we know is that even when crime rates go down, it doesn't affect that statistic. We still have 2.2 million people locked up year after year. Why is that? Because under these laws, the courts are giving ever longer sentences and an ever greater percentage of people who are charged are sentenced to long periods of time. For example, something like 19% of all presently incarcerated people are doing mandatory life sentences. Many of them not because they committed murder or things like that, but because they committed three felonies. And even though the felonies may not have been individually that major, under rear offender laws, three strikes and you're out, they get mandatory life imprisonment. In terms of what crimes these people are committing, aside from the 10% that are completely innocent and didn't commit any crime, it varies a lot from state to state and from jurisdiction to jurisdiction. In the federal system, it's mostly drug cases, often minor drug cases, but drug cases. That's the biggest part of the federal incarceration. In many states it's minor robberies, burglaries. In some other states it's assaults. We're a big country and there's a lot of variation. So there's no one crime that sticks out, but the overall result is pretty much the same everywhere.

A (11:25)

And how do these sentences compare to other countries?

B (11:30)

We lead the world both on a per capita basis and on a absolute number basis by substantial margin. We're not even close to China or Russia. We're much higher than either of those countries in terms of number of people we lock up. And we've been the leader, I'm sorry to say, for the last 20 years. We're locking up mostly people of color. 60% of that group, even more so people who are poor. That's 80% of that group. And we are ruining their lives. We are ruining their families lives, we are ruining their communities in many respects. By the way, it's very expensive. It could cost $160 billion a year to lock up all those folks. So it's having a devastating effect. If you are a black male, your chances of being arrested sometime in your lifetime are 1 in 3. If you are a black male, your chances of spending time in jail or prison sometime in your lifetime is one out of nine. So these are huge proportions of black male society that are being ripped away from their families, usually at a very important time in their life, taken away from their jobs. And they will Never be able to get the same kind of jobs again. And yes, some of them did commit crimes, but not crimes warranting this kind of punishment.

A (13:01)

If somebody has drugs, let's say 2 ounces of marijuana, what kind of sentence would they get in the United States as compared to another country? Or if they break and enter a home? How would a US Sentence compare to other countries?

B (13:19)

US Sentences are usually much higher than most Western countries. The sentences on paper in China are even harsher than our sentences. Lots of death sentences on paper. But the number of people who are actually locked up in China or executed in China is much smaller than in the United States. But taking countries like Germany, France, the Scandinavian countries like that, their average sentences are typically about one third to one quarter of what ours are. Wow.

A (13:52)

So much less. The sentences are very different between the US And Western countries and even the US And China or Russia. But how do the justice systems themselves compare? Do other countries have this plea bargain arrangement, or are they trial by judge or trial by jury?

B (14:12)

The jury system is pretty much unique these days to the United States and to countries that come out of the Anglo American system. So they were former British colonies or things like that. Most countries don't have a jury system. I think that's a shame. The jury system is a terrific system. The trouble is we've now devised a system where no one ever gets a jury trial because they never get to trial. But in most countries other than those that were once part of the British Empire, a judge makes the decision. I think the biggest difference is that judges are much more powerful in many countries than they are in the United States. When it comes to the criminal justice system. There are no mandatory minimum in most of these countries. There are no career offender statutes in most of these countries. The judge often plays a investigative role at the outset of a case. Something that is completely foreign to the American system.

A (15:13)

And what can we do to improve our criminal justice system?

B (15:16)

It would be terrific to do away with all mandatory minimum laws, all career offender laws, but even more so to reduce the penalties involves. The second thing that should happen is more attention should be paid to why it is that people don't want to go to trial even when they're innocent, because of wrongful convictions, with bad evidence, because of a cynicism about the system, because of feeling that the lawyer's not really representing them. That is all changeable. Most of it could be changed with money and greater resources. A third thing, a more subtle thing, is to moderate the position, the attitudes of prosecutors. Now, I have another specific Proposal we don't think is going to come to be. But in my ideal world, it would happen, which is that every prosecutor would spend six months out of every three years being a criminal defense lawyer for indigent defendants in another district, another district, so there'd be no conflicts. They would see things from both sides. Having seen it both as a prosecutor and as a defense, I think it makes a huge difference in how fair you are when you can see both sides. It would also cause prosecutors to be much more careful in taking the evidence provided to them by the police. The police are 99% of the cases honest. There are some rotten apples, but that's not what I'm talking about. I'm talking about the fact that they only see one side of things and they only report one side of things. And therefore the prosecutor is getting a skewed view, which could be counteracted by the prosecutor saying, how about that other suspect?

A (17:07)

Before I ask you for your three key takeaways, is there anything else you'd like to discuss that you haven't touched upon?

B (17:14)

Yes, real briefly. We've talked so much about the criminal justice system, but it should be of equal concern to people that everyday folks can't get into court and can't have a lawyer if they're dragged into court, even in everyday civil matters. So the statistics are that 20 years ago, if you were an individual who was either bringing a case as a plaintiff or were forced into a case as a defendant, you had a lawyer in almost every case. Now, two thirds of those people don't have lawyers in housing court and family court, which are the two courts where the most people get involved on civil matters. In some states, not all. In some states is as much as 90% of the individuals don't have lawyers. Statistics, again, are overwhelming. If you have a lawyer, you do much better, as you would expect. And if you don't have a lawyer, there are many reasons why this has come about. Lawyers have priced themselves out of that market. Their market has become the market of corporations and rich folks. There has been a decline in things like labor unions, which used to supply lawyers to their membership. There's been a push supported by the Supreme Court, to force cases to go to arbitration rather than to go to the court. Even though in an arbitration you don't have a jury, you don't have due process, you don't even have often the rules of evidence, there's been increasing similar deference to sending matters to administrative agencies rather than into the courts. And there again, the courts have tended to say, yep, that's fine. We give great deference to what is decided by a so called administrative law judge who was some typically selected by the head of the agency and who not surprisingly decides for the agency in 90% of the cases. Without multiplying their other causes as well, there is a real lack of access to the civil justice system on the part of everyday individuals.

A (19:22)

Last question. What are the three key takeaways you'd like to leave the audience with today?

B (19:29)

The first is that none of these problems are beyond being fixed. There's nothing inevitable about any of this. The second thing is to fix a change in attitude of the American public. One of the reasons for those very harsh criminal laws is that most voters are big supporters of law and order and it's not because they're inherently unfair people. It's just because they read about the crimes and they don't read much about the mass incarceration and the harsh penalties and all the other things. It's a question of educating the American people. That may sound an awfully poly Adish view, but I think that is at the heart of changing the system. And the third, if you really want to know what is going on in the system, you got to read my book.

A (20:31)

Thank you Jet. This has been great. I did enjoy your book.

B (20:35)

Thank you.

A (20:36)

If you're enjoying the podcast, and I really hope you are, please review us on Apple Podcasts or Spotify or wherever you get your podcasts. It really helps get the word out. If you're interested, you can also sign up for the Three Takeaways newsletter at 3takeaways.com, where you can also leave listened to previous episodes. You can also follow us on LinkedIn, X Instagram and Facebook. I'm Lynn Thoman and this is three Takeaways. Thanks for listening.