Plea Bargaining

Law, Race, The Economy

I was watching last night’s Frontline on The Plea (you can watch it online starting Monday), and I was struck between the similarity between how they described the process by which one man pled guilty to murder charges and an article I had read earlier on car salesman.

Here’s how we were supposed to get the first pencil from the tower. After the customer test-drove the car we brought them into a sales office and offered them coffee or a Coke to relax them. Then we filled in the information about the car on the 4-square. We then picked up the phone and called the tower. Michael held his hand like a phone receiver with his thumb and little finger sticking out. You say, Yes sir. I have the Jones family here with me and they have just driven a beautiful new whatever model, stock number blah blah blah.’ Then you say, Is it still available?’ Of course you know it is. But you want to create a sense of urgency. So you pause, then say to the customer, Great news! The car’s still available!’ Then the tower will give you the first pencil. Write it in each of the boxes.”

But here’s the beauty of this system,” Michael said, these numbers aren’t coming from you — you’re still the good guy. They’re coming from someone on the other end of the phone. The enemy.”

Michael returned to his scenario. OK, so when you give these numbers to the customer you say, Here’s a pretty good deal for you.’ But Mr. Customer says, Oh man! Michael, I told you I can only put down $3,000.’ So you cross out the $6,000 you wrote and put down $5,750. You say to the customer, Is that more what you had in mind?’ And you nod as you say this. Try to get them agreeing with you.”

Here is the story of Charles Gampero, Jr.:

Gampero’s family hired a lawyer and on Nov. 2, 1995, they all arrived at the courthouse ready to go to trial. What the Gampero family didn’t know was that a few weeks before, the prosecutor had called the father of the victim to tell him that there were problems with the case and asked him how he felt about a plea bargain. The victim’s father agreed to a plea that Gampero would be sentenced for a minimum of seven to 21 years instead of going to trial.

Ignorant of all that, the family met the judge, Francis Egitto, who had served on the bench 30 years and went by the nickname Maximum Frank.” That day, the family was told the prosecution was offering a deal of eight and a third to 25 years if their son pleaded guilty to manslaughter. The judge told the family that he would try to get a better deal of seven to 21 years (which was in fact the same deal which was already agreed upon by the victim’s father and the prosecutor).

The judge warned that if Gampero didn’t take the plea and the jury found him guilty, he would give him the maximum sentence of 25 to life.

In the interview with the family they actually describe Maximum Frank” going back to make a phone call” and coming back with a better” deal — just like the used car salesman. It turns out that this similarity is not accidental.

While this case is exceptional in that it is a murder case, it is no different from most cases in that it never went to trial:

In the state courts that handle most of the criminal caseload, 95% of felony convictions occur without jury trial; 91% are plea bargained; 4% occur at bench trial.

It seems that money is a major reason why so many people are encouraged to take a plea, and the financial costs are something that they themselves are often unaware of when they make the decision. Read this excerpt from an interview with law professor Stephen Bright:

One reason that a lot of people plead guilty is because they’re told they can go home that day because they’ll get probation. What they usually don’t take into account is that they’re being set up to fail. They’re going to be told to report every month to a probation officer, or maybe every two weeks. They probably aren’t told that that’s going to cost them $40, or some fee depending on where they are, every time they come. They may be told they have to go to classes. They’re not going to be told, probably, that they have to pay for those classes every time they go. They’ll be fined, and more likely than not the fine will be more than they can afford.

So before long they’re going to be behind in their payments and then they probably won’t go to see the probation officer because they don’t have the money that they’re supposed to pay and then a warrant is issued for their arrest and then they’re sent to prison for violating their probation. So in the short term it looks great to the person; what they haven’t realized is that now there are all these responsibilities that they have, which, because of their poverty and their financial inability to pay, they really don’t have any serious hope of meeting.

Q: Why do they have to pay?

It’s a relatively recent phenomenon, charging people to be on probation. At one time probation officers worked for the state and their goal was to help deal with whatever problem got this person into the criminal justice system. Now in lots of places we have private probation companies, which basically are just for-profit businesses, which are collecting fees from people every time they come by and meet a probation officer, and then maybe conducting classes and charging for those classes, or renting out ankle bracelets that monitor the person’s movements and so forth. All of that is generating income for this company, but it probably is not dealing with whatever behavior brought the person into the court.

Q: Who pays for that?

Unfortunately, too often it’s paid for by the defendants, and illegally, because the Supreme Court of the United States has said you can’t lock people up just simply because they can’t afford to pay, but the courts never inquire into that.

At the time people are put on probation, there’s no inquiry into how much money they make, what they can afford to pay. At the time they come back in because they haven’t paid, in most courts there’s no hearing to find out that the baby had to go to the hospital and somebody lost their job, that some other emergency in the family kept them from making the payment. It’s just a question of, You owed this much money and you didn’t pay it.” And slam, off you go to jail. The hope a lot of times is that the family will somehow mortgage the house, sell the car, do something to come up with the money so that the person can get back out on the streets again. But we’re really running debtor’s prisons as a result of this because a lot of families can’t come up with the money.

Q: Is it really all about money?

I think it’s very much about money. And I think one of the corrupting influences in our courts is that many localities depend upon the courts as a major source of revenue. … When the courts are in pursuit of profit, that’s in conflict with being in the pursuit of justice. …

Take the case of Erma Faye Stewart, who was arrested on drug charges based on the word of a confidential informant who later would be proven unreliable.” In those cases which went to trial, the charges were dropped, but Erma Faye’s lawyer encouraged her to plead guilt:

Three years after she pleaded guilty in order to go home and take care of her children, she is destitute. Because of the plea, she is not eligible for food stamps for herself or federal grant money for education. She can’t vote until two years after she completes her 10-year probation. And she has been evicted from her public housing for not paying rent. Her children sleep in various homes and she spends her nights outside the housing project, waiting for the the morning when she can go to work as a cook — a job that pays $5.25 an hour. She owes a $1,000 fine, court costs and late probation fees which she has been pressured to pay. They see it like, as long as I have a job, I can pay them,” says Erma Faye. I already told them, I’m having a hard time, buying my son medicine. I have to have his medicine for his asthma. They don’t really care about that. All they want is, you know, the money.”