August 2, 2021
From Nonsite
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The trial has for a long time dominated the imaginations of those who write on law and narrative. And no wonder: as both a process and a metaphor, the trial conjures up a whole series of familiar narrative tropes associated with the staging of an adversarial dispute and its resolution. The publicity of trials, too, helps to account for their appeal in this regard: as events presumptively open to public, and as vehicles for various forms of legal writing (pleadings, transcripts, decisions), trials readily lend themselves to scrutiny and analysis. The concern with trials has tended to focus more intensively on criminal cases than civil cases, for all the obvious reasons.

Yet as anyone familiar with the American legal system knows, trials account for a tiny proportion of criminal convictions. According to the statistics for 2019, nearly 98% of convictions in the federal system resulted from guilty pleas, and the rate in the state systems appears to be the same.1 Given that the vast majority of defendants who plead out (at least 80%) are eligible for court-appointed attorneys, plea bargaining functions as one of the most significant practices by which the legal system imposes harm on the basis of socioeconomic status and class. Plea bargaining by itself cannot account for the damage and destruction that the legal system inflicts in the U.S. Ubiquitous surveillance, racial profiling, overpolicing, overcriminalization, “drug exceptionalism,” racially and economically discriminatory bail practices and sentencing disparities, the slow and steady erosion of Fourth Amendment protections, and a host of other factors and practices would ensure that even if many more cases went to trial, the same harms would persist, reinforcing continuing mass incarceration. But plea bargaining remains an important factor in the equation, partly because it facilitates some of these other practices, helping them to pass without notice, and partly because the lack of transparency surrounding it encourages some excesses that would be curtailed if they received more attention. For example, lengthy pretrial incarcerations give plea bargaining its teeth. Unlike the trial, the plea-bargaining process does not readily lend itself to analysis in terms of narrative. As conducted at present, this process leaves many fewer traces of the kind that would allow anyone to reconstruct a story about how the negotiations proceeded. Even if the story could be told, it would lack many of the appealing narrative tropes that make trials so engaging—such as a surprise witness or a devastating cross-examination. Yet plea bargaining is a vital element of the criminal justice system, and it deserves more attention from scholars interested in law and culture.

The system of plea bargaining allows prosecutors to exaggerate the strength of their case, even to the point of inventing evidence and witnesses that would not withstand scrutiny if the case went to trial. The result is that people may take a plea deal even when the prosecution has a weak case, or when the person being accused is innocent. In Brady v. United States (1970), which played a crucial role in conferring constitutional legitimacy on the use of plea bargains, the Supreme Court explained that there would be “serious doubts” about the result if prosecutors’ “offers of leniency” in exchange for a guilty plea “substantially increased the likelihood that defendants … would falsely condemn themselves.” But not to fear: “pleas of guilty are voluntarily and intelligently made by competent defendants with adequate advice of counsel, and … there is nothing to question the accuracy and reliability of the defendants’ admissions that they committed the crimes with which they are charged.”2 This assertion was wrong in 1970, and the problem has only grown worse with time. According to the Innocence Project, nearly 12% of those exonerated on the basis of DNA evidence pleaded guilty.3 That figure, of course, captures only some of the innocent defendants who enter guilty pleas.

One of the commonest gambits is for a prosecutor to secure a guilty plea by threatening defendants with various penalties for insisting on a trial—for instance, by promising to seek a vastly more serious penalty at trial (say, fifteen years rather than two), or to bring more serious charges, or to bring charges against other family members. The U.S. Supreme Court has given its blessing to this practice not only in Brady, but also in Bordenkircher v. Hayes (1978). U.S. courts had once looked skeptically on confessions secured by “promise of favor,” but in Bordenkircher, Justice Stewart remarked that deciding to threaten defendants with a “more severe punishment” if they insist on going to trial is simply one of “these difficult choices” that constitutes an “inevitable—and permissible—attribute of any legitimate system which tolerates and encourages the negotiation of pleas.”4

This sort of resigned pragmatism reflects the courts’ realization that plea bargaining has become an essential device in the prosecutor’s arsenal, so essential that the system could not function without it. Justice Kennedy recognized as much when he observed in 2012 that “criminal justice today is for the most part a system of pleas, not a system of trials.”5 Treating such negotiations as akin to the kind of bargaining that goes on between equally matched actors—a negotiation whose “legitimacy” may be taken for granted rather than requiring scrutiny—Stewart implied that all parties to a plea deal are equally capable of gamesmanship. It takes little reflection to see how implausible that assumption is, particularly for racialized defendants who, because of previous experiences with being policed and lack of access to legal information, are at a grave disadvantage in these situations. Thus, it is hardly surprising that Black defendants tend to suffer the most from the plea-bargaining system as it presently operates.

The events surrounding the imprisonment and death of Kalief Browder illustrate the damage created by this system. Charged in 2010 with the theft of a backpack that contained a camera, an iPod, and $700 in cash, the 17-year-old Browder denied any involvement in the crime. Despite having a very weak case, the prosecutors pressed him to plead guilty, offering first a sentence of three and a half years, and later reducing it to an offer of two and a half years. Browder refused these deals, continuing to maintain his innocence. After being imprisoned for nearly three years after his arrest, Browder appeared before a judge who offered him immediate release in exchange for a plea to two misdemeanors, with the sentence limited to the time he had already served. He again refused, and the prosecutor freed him some two months later, a week before the pending charges were due to be dismissed.6 Browder spent about two years of his imprisonment in solitary confinement, and attempted suicide twice during that time. During the two years after he was freed, he made two more suicide attempts; the second time, in 2015, he died.7

Commentators have suggested various reforms to mitigate the damage that flows from plea bargaining in its current form. Jenia Iontcheva Turner has suggested measures to make the system more transparent, by requiring public disclosure of the content of plea deals and the evidentiary basis for the prosecution’s case.8 William Ortman has suggested procedural reforms that would give defendants some of the same rights that a defendant has during a trial, such as the right to confront and cross-examine adverse witnesses, in order to assess the strength of the prosecutor’s case.9 These proposals might help to combat the appalling results of the plea-bargaining system as it presently exists, although experience suggests that any measure designed to improve the system will be met with efforts to circumvent it. At a minimum, however, the proposals for reform will help to focus more attention on the problem—the most important first step in striving for any serious response.

To these suggestions, I add two proposals concerning the role of narrative. “Plea bargaining in the shadow of the trial” is a conventional way of describing the means by which the threat of a riskier and more demanding process typically induces defendants to choose a lower penalty and an expedited process. Just as individuals in the civil context are often said to “bargain in the shadow of the law,” each using the possibility of litigation as a reason for settling their dispute informally, the prosecutor and defendant are said to make a deal with that more formal process serving as the alternative.10 The difference is that civil litigants are likelier to be in relatively equal bargaining positions, and accordingly each one may invoke the threat of the trial to exact a compromise. To be sure, parties in civil litigation may also be in very different positions, with few opportunities to engage in effective bargaining; however, a considerable number of civil disputes involve parties with relatively equal bargaining power (for instance, where both parties are individuals, or both parties are large corporations), as research in this area has shown.11 Criminal cases present a radically different state of affairs. Prosecutors who agree not to bring additional charges, or to seek a longer sentence, are not compromising in a similar fashion (as if there were an objectively correct charge or sentence that they have been persuaded to discount); rather, they are using bargaining chips of their own invention to manage their caseload. Fully aware that they have the resources to take only a few cases to trial, prosecutors start by proposing a heavy sentence associated with a serious felony, introduced for the very purpose of “discounting” it in return for the defendant’s guilty plea to a lesser crime. The defendant has little to propose in return, other than to insist on a trial.

We might use the metaphor of “bargaining in the shadow of the law” in a different sense to say that plea bargaining occurs “in the shadow of narrative”: lacking the visibility and publicity of the courtroom dispute, plea bargaining goes on in a space outside of the trial’s spotlight, and the process lacks most of the features that account for the trial’s narrative salience. On the one hand, the focus on narrative, among scholars of law, literature, and culture, has tended to direct attention away from the vast range of legal practices, devices, and technologies that do not lend themselves so readily to narrative analysis. Scholars like Cornelia Vismann and Cristina Vatulescu have studied the work that files do in directing and framing legal processes; similarly, Sal Nicolazzo has shown how the vagrant pass, a document used to guide the movement of paupers on their way to the place of legal settlement, conceptualizes a kind of legal geography.12 This research is part of a rich vein of work concerned more with the institutional power of legal documents, and their ability to reduce defendants to stereotypes and figures, than with their narrativity. This line of work might also have important implications for plea bargaining, which is at least ostensibly oriented around case files. Just as Vismann, Vatulescu, and Nicolazzo have down how legal forms and files guide the development of a case—sorting information, directing a certain procedure, or mapping the path that a case or party will travel—the files that collect the prosecutor’s evidentiary materials and lay out the options for plea bargaining might be studied in a similar fashion. This approach might complement the proposals by Turner and Ortman, mentioned above, which entail opening up the prosecutor’s files. The result would be to challenge the assumption that legal processes are inherently narrative in nature (as the form of the trial implies), indicating the various non-narrative ways in which legal actors, doctrines, and institutions operate. The lure of narrative has distracted scholars away from a wide range of discriminatory practices that require urgent attention, and that are not readily legible in a narrative form.

Yet we also need more narratives about plea bargaining—individualized narratives about what actually happens during the process and the results it brings. Such accounts—and the information they could provide about the process—cannot by themselves respond to a systematic problem of such vast proportions, but like the proposals for reform, they can help to bring new attention to the problem. Over the last fifteen years, Foundation Press has published a very successful series of books exploring “stories” within various fields of law, such as Administrative Law Stories, Federal Courts Stories, and Election Law Stories. These volumes, directed at law students and used to supplement the cases assigned in a course in the relevant area, offer to tell “the story behind the case,” both to lend colorful detail to precedent-setting decisions, and to clarify instances in which the facts as reported in the decision differ from those that actually animated the dispute. I list some of the more improbable examples to show how readily the notion of a story can find application in almost any substantive area of law, and also to point to the limits of narrative that this approach takes for granted. There is no volume of Plea Bargaining Stories because it has seemed obvious that so few stories can be told, that this process is not amenable to storytelling. Most of the backstories presented in the “Law’s Stories” seek to find colorful or sympathetic details that the official case report may have excluded. By contrast, many of those who fall victim to the machinery of plea bargains tend not to conform to conventional ideas about sympathetic protagonists—because they have records of past arrests, or have been previously accused of violent crimes, or are in some other way “known to the police.” In this respect, the Browder story is not entirely representative of most people who are incarcerated as a result of plea bargaining—which may explain why the story was able to gain traction in the way it did.

Yet even less conventionally sympathetic examples of the victims of plea bargaining are amenable to storytelling, even if it requires different resources from the ones that figure in most other volumes in the “Law’s Stories” series. While the plea-bargaining process does not offer the same materials for narrative analysis that a published decision does, this lack of attention has also been possible because so few stories about the process have been widely shared. Stories like Kalief Browder’s should be known more widely. Even as scholars look past the attractions of narrative to consider a wider array of techniques and approaches for studying the law’s operations, we also need to make the problem of plea bargaining more concrete through the use of narrative examples. Revealing the damage that it does by pointing to particular instances might also help to bring about the transparency and the procedural reforms that scholars have been advocating.

Notes

2.&  Brady v. United States, 397 U.S. 742, 758 (1970).
3.&  Innocence Project, “DNA Exonerations in the United States,” https://innocenceproject.org/dna-exonerations-in-the-united-states/. See also Carlos Berdejó, “Criminalizing Race: Racial Disparities in Plea-Bargaining,” Boston College Law Review 59, no. 4 (2018): 1187–1249; Christi Metcalfe and Ted Chiricos, “Race, Plea, and Charge Reduction: An Assessment of Racial Disparities in the Plea Process,” Justice Quarterly 35, no. 2 (2018): 223–53.
4.&  Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). Internal quotation marks and citations omitted.
5.&  Lafler v. Cooper, 566 U.S. 156, 169 (2012).
7.&  Taylor Lewis, “Kalief Browder Penned Essay on Solitary Confinement One Month Before Committing Suicide,” Essence, June 24, 2015, https://www.essence.com/news/kalief-browder-essay-solitary-confinement-month-committing-suicide/. See also Jennifer Gonnerman, “Kalief Browder, 1993–2015,” New Yorker, June 7, 2015, http://www.newyorker.com/news/news-desk/kalief-browder-1993-2015.
8.&  See, e.g., Jenia Iontcheva Turner, “Transparency in Plea Bargaining,” Notre Dame Law Review 96, no. 3 (2021): 973–1023.
9.&  See, e.g., William Ortman, “Confrontation in the Age of Plea Bargaining,” Columbia Law Review 121, no. 2 (2021): 451–507.
10.&  See, e.g., Robert Cooter, Stephen Marks, and Robert Mnookin, “Bargaining in the Shadow of the Law: A Testable Model of Strategic Behavior,” Journal of Legal Studies 11, no. 2 (1982): 225–51; Jeffrey Standen, “Plea Bargaining in the Shadow of the Guidelines,” California  Law  Review 81, no. 6 (1993): 1471–1538.
11.&  See Cooter et al., “Bargaining in the Shadow of the Law.”
12.&  Cornelia Vismann, Files: Law and Media Technology (Stanford: Stanford University Press, 2008); Cristina Vatulescu, Police Aesthetics: Literature, Film, and the Secret Police in Soviet Times (Stanford: Stanford University Press, 2010); Sal Nicolazzo, Vagrant Figures: Law, Literature, and the Origins of the Police (New Haven: Yale University Press, 2021).



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