By Suneel Chakravotry
US Criminal Justice System Like a Banana Republic
Did you know that the US federal conviction rate is about the same as a Banana Republic, fascist state, or communist country?
Once the federal government charges a person in the USA, he or she is as good as convicted.
The reason for this is that all the power rests with the government and there are few if any safeguards left to protect the citizen who is accused. Unfortunately, most people are blissfully unaware of this until they find themselves or someone they love facing federal charges. Then, reality hits hard.
This reality is more palatable, I think, in openly repressive countries because no pretense is made that the system is not rigged. The citizen is on notice that if he runs afoul of the government, he will be charged and imprisoned regardless of guilt or innocence.
In the USA, however, there is a pretense that the federal criminal justice system is fair and that the government cannot get away with recklessly charging innocent people, since we have due process, which includes trial by jury, where citizens, not government officials, decide the innocence or guilt of a defendant.
There is a presumption of innocence, proof at trial requiring the high standard of “beyond a reasonable doubt,” the confrontation clause, and a host of other safeguards.
Yet there must be a reason why the USA has more of its citizens in prison than any other country, both in number and as a percentage of its population.
And there must be a reason why the conviction rate is so high in the federal system: 97%.
The reason is that in the federal criminal justice system, most of the traditional due process rights of defendants have been severely eroded or eliminated altogether.
Grand Jury Went From Safeguarding Citizens to a Tool of the Prosecutors
To name just one area where due process has been eroded, the grand jury was originally conceived as a safeguard against government persecution. It was understood that a reckless, overzealous, incompetent, or malicious prosecutor or law enforcement entity might indict too easily, and once a person is indicted he is effectively put through a great and painful ordeal.
The grand jury was designed to consist of citizens who were needed to authorize any indictment, to safeguard against abuse. The grand jury is empowered by law to investigate whether a crime has likely been committed and they have subpoena power and the right to call witnesses.
Only after a grand jury – made up of 16 to 23 private citizens chosen by lot – determine that there is probable cause for the commission of a crime, is the government permitted to arrest a citizen for most species of crimes.
The freedom principle behind this is that before the government could bring a person to trial, it had to be approved by the people, as represented by a grand jury. Then the trial itself would be overseen by a trial jury, made up of 12 citizens who had to authorize the conviction of any defendant. In this way, no citizen would be charged or put in prison without the consent of the people.
While the trial jury still has some of its original intent intact, the grand jury has literally zero left.
Over time, prosecutors at the Department of Justice usurped the role of the grand jury, making rules, procedures and practices that made the grand jury, which was supposed to be a watchdog of the prosecution, into their puppets.
The grand jurors are not informed of their role as investigators, with the right to call witnesses on their own and decide the scope of the investigation, including what evidence they want to see. It was supposed to be that the prosecution would lay out its case to the grand jury and then the grand jury would decide what evidence they wanted to look at further and who they wished to call as witnesses.
Today, the prosecutors make all the decisions including what witnesses to call and what evidence the grand jurors get to hear.
If an individual grand juror asked to exert his or her legal right to investigate beyond what the prosecutor chooses to tell the grand jury, I am fairly certain that the prosecution would seek that juror’s removal, if he or she ever got on the grand jury in the first place.
The judiciary has largely cooperated in this matter of making the grand jury uninformed and obedient to the prosecution. While judges have legal oversight over the grand jury, they rarely monitor grand jury proceedings and it has become built into federal criminal procedure a “presumption of regularity” in grand jury proceedings.
This means that the prosecutors are presumed to be doing the right thing inside the secret grand jury room during the hearings, which the defendant is not permitted to attend, and rarely told about.
The grand jury today is entirely controlled by prosecutors – the very species of government officials that the grand jury was designed to safeguard against.
The federal grand jury system today is a case of the fox watching the henhouse.
If power corrupts, the near-absolute power to indict resting solely in the hands of prosecutors must at times corrupt absolutely.
There are 16 to 23 grand jurors, usually with no sense of why they are there other than they were called for jury duty. The prosecutors know that whatever they present and tell the grand jury, the jurors will believe them and vote accordingly.
When motions are made by the defense after a person has been indicted before judges or magistrates, arguing that the results of the indictment demonstrate that the grand jury was presented either misleading or false information, judges generally do not look at the grand jury minutes to determine the truth. In fact, they almost never look at the grand jury minutes.
That’s because in law there is a presumption of regularity in the grand jury. This presumption, which contradicts every known principle of checks and balances for every other kind of government official, allows prosecutors to not worry too much about whether their presentation of evidence is fair or if they might be seeking an indictment of an innocent person.
Prosecutors Rise By Conviction Stats Not By Justice Delivered
Since a prosecutor’s career advancement is based in large part on the number of convictions he or she obtains, there is an incentive to get indictments, without too much attention to innocence or guilt, or whether the case is provable beyond a reasonable doubt.
Prosecutors know that almost all defendants, once they are indicted, will take a plea deal. If they happen to indict an innocent person, who refuses to take a plea deal, the prosecutors can always seek to dismiss the case. But in most cases they will simply try the case, for in federal court, the system is very much slanted toward the prosecution.
Still, there is a good reason why dismissals of charges are some four times higher than trials in the federal system. If an innocent person refuses to take a plea deal, and the prosecution realizes they might lose at trial, they dismiss the case.
The prosecutors are therefore incentivized and emboldened to use the grand jury as their playground.
Since the proceedings are always secret, if they cheat or take shortcuts with people’s freedom or justice, no one is likely to ever know.
Should a defense lawyer try to challenge the proceedings in a grand jury in a motion before the judge, because the grand jury hearings are secret, the defense can only argue that based on the charges or the language of the indictment that a fair presentation of the evidence would have led to a different result.
The judge invariably rules against the defendant because without specific evidence that the prosecution acted with malice or error in the grand jury, the “presumption of regularity” applies.
It is a Catch 22 because there is no way to prove evidence was omitted, or altered, because grand jury hearings are secret, and if you cannot prove it, then the presumption of regularity applies.
Prosecutors have control of the grand juries; there are no checks and balances, no monitoring.
Are Prosecutors Morally Superior to Others With Power so They Should Operate in Secret?
Unless you think that by some divine dispensation prosecutors are more ethical and honest than other species of government officials, only with a greater power, the ability to take people’s freedom away, this space in our system of government is deeply flawed.
The grand jury, that was supposed to protect the citizens, has often become a tool to oppress them. It is a farce and charade and everyone in the federal criminal justice system knows it.
In fact, the grand jury is the federal criminal justice system’s dirty little secret. The secret is that the grand jury always does what the prosecution wants, which, of course, is the opposite of its intended purpose. Yet you still hear prosecutors say, “it’s up to the grand jury, not them to decide whether a target will be indicted.”
The Bureau of Justice Statistics from October 1, 2009 to September 30, 2010 revealed that of 162,300 criminal offenses that the government presented to a grand jury in the USA, the grand jury indicted on those offenses all but 11 times.
Only 11 times did they find a person not very likely guilty of a crime, out of 162,300. Could the federal prosecutors be that good – right 99.99% of the time?
Out of 162,300 crimes prosecutors wanted to charge, they only were denied 11 times?
Isn’t it more likely that there were many innocent people charged with crimes because the prosecution chose to present selective evidence, failed to present exculpatory evidence, and were reckless and careless with the truth, in order to get a conviction?
This is the attitude of many prosecutors: when in doubt about a target’s innocence or guilt, indict him anyway and leave it up to the trial jury to sort out the truth.
With this sentiment, one wonders how they are able to sleep at night.
I believe this is the calculus of a sociopath; they know that a trial is a terrible ordeal and that prosecutors should be loath to indict an innocent person, and not be incentivized by career advancement fueled by the number of convictions they spearhead.
Indictment and Trial Is an Ordeal That Makes Innocents Guilty
Though the defendant is said to be presumed innocent prior to conviction, that is not the way it works in real life. Enormous reputational damage is done to that individual the moment he is indicted. His income is often diminished or halted. His business craters. He is fired from his job. Sometimes he is incarcerated pretrial. His assets might be frozen.
If he has any resources and does not qualify for an overworked and low-paid public defender, he usually has to hire lawyers who will, if he chooses to take the case to trial, drain his life savings. And then he faces the potential of a federal trial where the conviction rates are extraordinarily high.
When innocent people are indicted in the federal system, they are most likely going to be convicted. That’s how the system operates.
Part of the reason for that – and it is another example of why the US federal system is not much different than a totalitarian regime – is that the policy of federal prosecutors is to overcharge a defendant in order to encourage a plea bargain.
In other words, the prosecution, who have not been monitored in the grand jury room, will lead the grand jury to charge any crimes they want. They can pile on more charges since the federal law permits the prosecutors to bring cases to trial without proving they have an airtight case.
If the case does go to trial, say with 10 charges, and only one of them sticks, they get their conviction stats. So what harm is there in overcharging a defendant?
A defendant might be indicted for crimes that come with penalties of 20 years in prison. However, if the prosecution were to charge him only for those crimes they felt they could prove beyond a reasonable doubt, he might only be charged with crimes that would come with a three-year prison sentence.
The prosecutors know that with a three-year potential prison sentence, the defendant would risk a trial.
However, facing 20 years on a raft of charges, sometimes the very same act charged several different times, the defendant will probably take a plea deal where he might get somewhere between a 3-5 year sentence.
Should the defendant, even an innocent one, roll the dice and depend on his innocence being understood by a jury of 12 people?
Or realizing that he might face some 20 years in prison, should the innocent man take the three years offered to him in a plea deal and limit his exposure?
If he looks at the stats in federal criminal trials, he might choose the plea deal route, realizing the system is slanted towards the prosecution.
On the one hand, he might win at trial and not go to prison. But if they have overcharged him – say with nine of ten charges – and the plea deal is offering him a chance to admit to only one charge, at trial, the defendant has to run the table and get a complete acquittal on every charge.
If he gets convicted for just one charge, he will wind up going to prison for just as long or longer than the plea deal offered.
I suspect that some juries, feeling that a defendant is innocent, acquit him of most charges, but they convict him on one, just to throw a bone to the prosecutors. The result is that prosecutors are overjoyed. They got a conviction and the defendant loses. He is going to prison. Winning nine out of 10 charges is a loss for the defendant.
And if most of the charges are sustained, he will likely regret not taking the plea deal. If he had taken a plea deal, he might have saved 17 years of his life.
Innocents Take Plea Deals
There is an astonishing statistic that among incarcerated exonerees cleared by DNA evidence: Some 11 percent of these innocent men and women took plea deals. That means that rather than risk a long sentence, they took a plea deal despite being innocent.
This suggests that many people who take plea deals are innocent.
English jurist William Blackstone said, “Better that ten guilty persons escape than one innocent suffer.”
There is another reason why innocent people take plea deals, even when they know they are innocent. If one goes to federal trial, and loses, the federal prison sentences are longer than similar crimes charged by at the state level.
Some charges that in state courts come with one or two years in prison, can have 20 year maximums in federal sentences.
Therefore, going to trial can lead to a “trial penalty”.
According to the National Association of Criminal Defense Lawyers, the ‘trial penalty’ refers to the substantial difference between the sentence offered in a plea offer prior to trial versus the sentence a defendant receives after trial. This penalty is now so severe and pervasive that it has virtually eliminated the constitutional right to a trial. To avoid the penalty, accused persons must surrender many other fundamental rights which are essential to a fair justice system.”
It has also been mentioned by legal experts and scholars that some judges sentence a defendant more harshly if they go to trial, versus if they took a plea deal, because the trial defendant took up the resources of the court.
On top of that, a defendant who takes a plea deal gets a reduction in his or her sentencing guidelines for accepting responsibility for their crimes. A person is likely to go to prison for a much longer time if he goes to trial and is convicted than if he takes a plea deal regardless of innocence.
Since the risks are grave if a defendant goes to trial, very few go to trial. Today, in the federal system we have the “the vanishing trial.”
This means that when the prosecution decides a citizen is a criminal, he or she is almost certainly going to be convicted and usually convicted through a plea deal, in order to eliminate the risk of a much longer prison sentence if he or she went to trial and lost.
Here is some of Gramlich’s report:
Nearly 80,000 people were defendants in federal criminal cases in fiscal 2018, but just 2% of them went to trial. The overwhelming majority (90%) pleaded guilty instead, while the remaining 8% had their cases dismissed, according to a Pew Research Center analysis of data collected by the federal judiciary.
Most defendants who did go to trial, meanwhile, were found guilty, either by a jury or judge. (Defendants can waive their right to a jury trial if they wish.)
Put another way, only 320 of 79,704 total federal defendants – fewer than 1% – went to trial and won their cases, at least in the form of an acquittal, according to the Administrative Office of the U.S. Courts. These statistics include all defendants charged in U.S. district courts with felonies and serious misdemeanors, as well as some defendants charged with petty offenses.
Trial rates are low regardless of the types of charges faced by federal defendants, but there are some variations across offense types. Fewer than 1% of federal defendants charged with immigration offenses (89 of 25,575) went to trial in fiscal 2018. The same was true of 2% of those charged with drug offenses (499 of 21,771) and 4% of those charged with property offenses (419 of 10,045).
The trial rate was slightly higher for those charged with violent offenses (7%, or 192 of 2,879).
Among the small share and number of federal defendants who went to trial in fiscal 2018, those who opted for a bench trial – that is, one in which the verdict is handed down by a judge – fared better than those who opted for a jury trial. Around four-in-ten defendants who faced a bench trial (38%) were acquitted, compared with just 14% of those who faced a jury trial. Even so, bench trials are far less common than jury trials in the federal system: In fiscal 2018, only 12% of defendants who went to trial had their cases decided by a judge, while 88% had their cases decided by a jury.
Fewer Trials, More Guilty Pleas
Trials have been relatively rare in the federal criminal justice system for decades, but they have become even less common over time. The share of defendants who went to trial fell from 7% in fiscal 1998 to 2% two decades later. In absolute terms, the number of defendants who went to trial plummeted from 4,710 in 1998 to 1,879 in 2018, even though the overall number of defendants in federal cases increased substantially during that span.
As trials have become rarer, guilty pleas have become more common. The share of federal criminal defendants who entered guilty pleas rose from 82% in 1998 to 90% two decades later. Guilty pleas rose in absolute numbers, too, from 55,913 in 1998 to 71,550 in 2018.
Not surprisingly, the decline in trials and rise in guilty pleas has corresponded with a decline in the number of Americans being called to serve on federal juries.
Experts have offered a range of explanations for the long decline in criminal trials. Among the most common is what critics refer to as the “trial penalty”: Individuals who choose to exercise their constitutional right to trial can face much higher sentences if they invoke the right to trial and lose, according to a 2018 report by the National Association of Criminal Defense Lawyers.
Prosecutors have the real power in the federal criminal justice system.
Prosecutors Have the Advantage
What about getting a fair trial? If the defendant is innocent he should have the opportunity to show that to a jury.
It is not so simple. While it appears that there are many good, fair-minded federal judges, the rules of federal practice have shifted over time to give an advantage to the prosecution.
One of the biggest advantages, which often flabbergast defendants when they learn about it, is that the prosecution gets to open and close the case.
It is obvious that the prosecution needs to make the opening statement to the jury to introduce their case. The defense then makes its opening statement to explain their defense.
Then the prosecution calls witnesses and the defense cross-examines When the prosecution rests, the defense has an option to put on a case. If they do, they call witnesses and the prosecution cross-examines them.
After the defense rests, the prosecution makes a closing statement to the jury where they tell the jury what it should conclude from the evidence presented during trial.
It is fair enough as far as it goes. Following the prosecution’s closing, the defense makes its closing statement, presenting the case in a light most favorable to the defendant.
And that is where you would think it should end: The prosecution had the first word and the defense had the last.
But the federal system permits the prosecution to make a second concluding argument, after the defense’s final argument the prosecution is basically granted a second closing argument, where the prosecution can dispute all of the defense’s arguments.
This will be the last words from the lawyers on either side for the jury to consider. Prosecution first and last [and as some say, always] in federal trials.
Primacy and Recency Granted to Prosecution at Trial
Those who understand primacy and recency know this gives a tremendous advantage to the prosecution. The jury’s first and last impression of the contending parties are the words of the prosecution.
The serial-position effect, the tendency of a person to recall the first and last things they heard best, and the middle the worst, is in full bloom.
Studies have shown that most people have pretty good recall of things they heard last and most recently. It is information in the middle that people tend to struggle with.
With the prosecution going first and last, it helps the jury to side with the prosecution. That’s likely one of the reasons why there are so few acquittals. The system is designed to favor convictions, which in turn favor plea bargains.
Propinquity, Another Advantage of the Prosecution
Another advantage the prosecution gets at trial is that they usually sit at a table which is closer to the jury than the defense.
In this way the prosecution can be seen more easily by the jurors, and their gestures and expressions are more visible to jurors. Sometimes they can be overheard by jurors conferring with each other.
And when, for instance, a prosecutor sitting at the prosecution’s table happens to roll her eyes when the defense is asking questions, and a juror happens to see it, they might have a certain impression that might not otherwise be available if they were not sitting so close.
It is easier to make eye contact with the jury at a close distance. Sometimes prosecutors are overheard by jurors just when they would want to be overheard, a subtle way to influence the jury with information they would not be permitted to introduce without objection from the defense.
Sometimes the jurors sit so close to the prosecution they can smell the perfume or cologne of the prosecutors. Meanwhile, the defendant is sitting far away, in effect as if he were hiding from the jury.
Visuals can have a significant impact on subconscious perception. For example, studies have found that when the camera angle in an interrogation focuses more on the suspect, they are more likely to be believed. In cases where they are obscured from view, they are less likely to be believed.
Closeness brings familiarity and distance breeds suspicion. It is a subtle edge the prosecution has and they know it.
Prosecutors Know the Judges
Another advantage prosecutors have is that they interact with the judges more frequently than defense lawyers. The judges see prosecutors constantly since they have fairly heavy caseloads and there is a limited number of judges.
The judges therefore have numerous cases with prosecutors at all times. The judges might know many of the defense attorneys but they don’t always have cases with them.
If there are, for instance, 100 prosecutors and 10 judges, there is likely to be 1000 defense lawyers.
This creates a system where judges and prosecutors know each other better than defense lawyers and judges. This is a powerful advantage since the tone of prosecutors is respectful and friendly to judges and when people know each other, and work together, they tend to try to help each other. It is human nature.
On top of that, many judges were former prosecutors. While that might not mean that the judge will be biased toward those who stood in his shoes once, it is not an advantage to the defendant. And there are some judges who side with the prosecutors so much that they might be called prosecutors in robes.
If an innocent defendant gets a highly pro-prosecution judge, they have almost no chance at a federal trial and if convicted they will be punished severely.
Prison Industry Helps Drive the System
It is understandable how this abandonment of justice can occur over time.
First of all, much of this is driven by the huge prison industry in the US, which is the largest in the world. That industry needs a constant flow of customers [defendants who are convicted]. Everyone in the system understands this.
Even in the federal system, where it is easy to indict and convict innocent people, most defendants are probably guilty.
With a majority of criminals and a need to get them into prison expeditiously, it is easy enough to not look too closely at the process of weeding out the innocent, since that is enormously time-consuming and expensive.
It would make the judges’ jobs harder; the prosecutors would have a slower track to acquire the conviction stats they need for career advancement; and the Bureau of Prisons, which is run by the same department as the federal prosecutors, [The Attorney General of the USA] they would be hampered by having far less people in prison, which would cause huge shortfalls in the BOP budget.
People just have to be convicted.
Defense Lawyers Can Profit Too
Most defense lawyers won’t complain too much. By having most of their clients take plea deals they can represent many more clients than they could if more clients went to trial.
A trial takes weeks for a defense attorney to prepare for and eliminates practically every other consideration for any other client during the trial itself.
System Needs Innocent People to Be Convicted and Sent to Prison
The system leans toward, and tacitly accepts, that a certain percentage of innocents must be convicted in order to feed the enormous and insatiable prosecution-run prison industry’s needs, ensure career advancement of prosecutors, enhance the income of defense attorneys, and permit a more leisurely and stress-free job for judges.
It has been said that if even a small number of people refused to take plea deals – say the same 10 percent who are innocent yet who took plea deals – the courts would be so clogged and overburdened, it would take years to untangle.
In the interest of judicial expediency, it seems to be acceptable that innocent people go to prison via plea deals rather than go through the rigorous effort of too many trials.
On top of that, if the system is skewed towards prosecutors, with a heavy trial penalty, that diminishes the appetite for innocent people to risk going to trial.
We will be getting into this more fully in future posts.