Prosecutors Holding More Chips Than Defendants

Next year marks the 40th anniversary of the end of the Warren Court. For many, it was the high point of criminal justice in the 20th century. Of the 15 rights related to criminal justice in the federal Bill of Rights, the Warren Court selectively incorporated - either explicitly or implicitly - every one except the Indictment Clause. The right to counsel in Gideon, Miranda warnings, the 4th Amendment exclusionary rule in Mapp v. Ohio - those were heady days for defense attorneys.

And prisons? Win a bar bet on this one. In 1972, Illinois had 50 inmates per every 100,000 in population. This is less than the imprisonment rate in either Denmark, Norway, or Sweden in 2001. So with a low prison population and lots of new rights for all criminal defendants, what could go wrong after the Warren Court?

Plenty.

From 1970 to 2005, the size of America's prison population increased 700 percent - obviously, resulting in an all-time record high for imprisoned Americans. Even worse is the inequality in the prison population. Although African-Americans constitute about 13 percent of the nation's population, they are about one-half of all prisoners. Another way to look at it: the imprisonment rate for Latino males is almost triple that for white males; African-American men are imprisoned at almost seven times the rate of white men.

And this all occurred after the Warren Court presided over the largest expansion of criminal defense rights in American history.

So something's happening here; what it is ain't exactly clear. But one analyst who offers a provocative view of the last four decades in criminal justice in America is Harvard law professor William Stuntz. I would highly recommend two of his articles: Unequal Justice, 121 Harvard Law Review 1969 (2008), and The Political Constitution of Criminal Justice, 119 Harvard Law Review 780 (2006). Stuntz's work is both rich and challenging, so this column will try to describe his ideas in the broadest of brush-strokes.

Essentially, Stuntz examines the hydraulics of the criminal justice system: when you apply pressure at one point, it may create problems at a very different point.

Here's an example. By the end of the Warren Court in 1969, a criminal defendant in state court was holding more rights than he had ever before possessed. Right to counsel, jury trial, Miranda, right to Brady material, the exclusionary rule - think of these as chips possessed by the defendant. By definition, these rights made it more difficult - and expensive - for the State to win criminal trials.

So first, prosecutors needed a legal procedure to win some of those chips; in other words, they needed a legally sanctioned game they could play with the defendant. This was something the Burger Court was pleased to do. Starting in 1970 - the Burger Court's first full year - the court decided a series of cases establishing for the first time that plea bargaining really was a constitutionally proper tactic. (A LEXIS search reveals 70 U.S. Supreme Court cases that contain the term ''plea bargaining''; only two of these cases were decided before the Burger Court.) The highwater mark occurred in 1978 with Bordenkircher v. Hayes, 434 U.S. 357. Paul Hayes was charged with uttering a forged instrument in the amount of $88.30. The range of punishment was two to 10 years in prison, but the prosecutor offered to recommend five years if Hayes pled. The prosecutor also told Hayes that if he did not plead, he would go back to the grand jury and seek an indictment under Kentucky's ''three strikes and you're out'' which would make Hayes eligible for mandatory life. Hayes refused; the prosecutor got the new indictment; Hayes was convicted and received mandatory life. In a 5-4 decision, the court found that it was permissible for the prosecutor to give a defendant this ''choice.''

Essentially, the Supreme Court has simply refused to regulate plea bargaining, even to the extent of declining to require prosecutors to turn over exculpatory Brady material prior to a guilty plea. U.S. v. Ruiz, 536 U.S. 622 (2002). The court has also refused to interfere with prosecutorial discretion in charging. See Wayte v. U.S., 470 U.S. 598 (1985).

Once the game - plea bargaining with broad prosecutorial charging discretion - was established, prosecutors needed chips to play. And both Congress and state legislatures responded by greatly expanding criminal codes and imposing draconian sentencing rules. Legislators did not care whether these crimes and sentences were ever enforced as written. The point was merely to give prosecutors ''bargaining chips'' to encourage defendants to give up their ''chips'' (i.e., procedural rights under the 4th, 5th, and 6th Amendments); to plead guilty; and thus to save the State from the time and expense of a trial.

Stuntz summarizes the legislatures' institution of numerous new crimes with severe sentences: ''Together, they nullify most of the law of criminal procedure and change the character of the substantive law of crimes and sentences. Criminal law and the substantive law of sentencing became not a body of rules that define banned conduct and its consequences, but [simply] a means of extracting guilty pleas and expressing outrage.'' Political Constitution, at 30. So the ironic effect of the Warren Court's expansion of trial rights is that trials are rarer and rarer, while guilty pleas are now the norm.

There's more. Whom should the police enforce the law against? Police, naturally, will attempt to maximize their ''bang for the buck.''

For example, the Fourth Amendment imposes costs on police work. One of the Warren Court's major rulings was to declare that the Fourth Amendment protected ''reasonable expectations of privacy.'' Katz v U.S., 389 U.S. 347 (1967). Thus, people in houses get more protection than people in cars who get more protection than people on the street. Given this, police will be disinclined to try to get warrants to search suspected drug houses in the suburbs when it is easier to go after openair drug markets in the poorer areas of the inner city. The disparity between minorities and whites as to who gets imprisoned for drug and weapons offenses is partly explained by the fact that minorities on the streets are easier to arrest for drug offenses than are whites in suburban houses.

For both urban police trying to increase their arrest numbers and urban prosecutors seeking higher conviction rates, Stuntz calls drug offenses a ''godsend.'' Part of this is the nature of evidence needed to convict. The Warren Court made evidence-gathering more difficult for police. For example, many violent felony prosecutions are dependent on confessions and eyewitness testimony. The Miranda doctrine put more limits on admissibility of confessions; gang violence may well result in the intimidation of key witnesses.

But the beauty of drug and weapons charges is that confessions and eyewitnesses are unnecessary. All it takes is a constitutional stop on the street. So prosecutors and police began to use drug and weapon charges as surrogates - i.e., proxies -for violent crime offenses. They began to prosecute the criminal, not the crime. The idea, of course, goes back to convicting Al Capone for tax evasion. But what is different are the truly draconian punishments for these drug and weapon offenses. And this is another reason we have the highest incarceration rate in history.

So what is the solution? Stuntz admits there is no quick-fix. But one of his recommendations is that there be ''less federal law [and] more federal budget dollars.'' And the dollars should go for more police and fewer prisons. He cites Steven Levitt (of Freakonomics fame) for the proposition that ''a dollar spent on prisons yields an estimated crime reduction that is 20 percent less than a dollar spent on police.'' Stuntz also recommends doing everything possible not only to encourage more jury trials, but to find ways that juries are actually drawn from the neighborhoods spawning the prosecutions. He is very critical of the control that white suburbanites have over inner-city crime in counties such as Cook. He wants a return to local neighborhood control over local neighborhood problems.

Stuntz's work is always provocative, always thought-provoking. The articles discussed in this column can be downloaded free of charge at www.ssrn.com.