Per capita, America incarcerates the highest number of people in the world — by far. Incarceration, while it may be warranted, has an enormously negative effect on families and communities. People are swept up into the criminal justice system and taken away, sometimes for decades or a lifetime. Meanwhile, those left behind are forced to pick up the pieces.

The Pew Research Center recently revealed that, in 2018, less than 2% of federal criminal cases ever went to trial. That leaves over 98% that were resolved via plea bargain. At the state level, an average of 94% of defendants opt for trial.

Yet we know that at least some of these people are actually innocent. According to the National Registry of Exonerations, about 15% of the more than 2,400 exonerations registered since 1989 involved guilty pleas. But why would someone plead guilty when they know they’re innocent?

When negotiating plea bargains, prosecutors can be unduly coercive. Prosecutors have a number of hardball tactics at their disposal, and many are using them to close cases, no matter what:

  • Charge stacking (charging someone with multiple, duplicative crimes, resulting in the threat of multiple criminal convictions for the same incident)
  • Mandatory minimum sentences (charging someone with an offense where the legislature has taken away judges’ discretion to base sentences on justice)
  • Stacked sentences (making sure sentences run consecutively, rather than concurrently)
  • The “trial penalty” (threatening to seek a much harsher sentence if the defendant opts for trial than they would receive if they pled guilty)
  • Threats to investigate or charge friends and family members
  • Requesting bail higher than the defendant can afford, meaning they will be held in jail before trial)

Keeping people in pretrial detention is especially coercive. Even though the person is legally considered innocent until proven guilty, they are put in a position of punishment. Most often, pretrial detention causes the defendant to lose their job and housing. Sometimes, they are threatened with the loss of their parental rights. Many, many people have pled guilty to crimes they didn’t commit because they couldn’t afford to wait in jail until trial.

The status quo for most prosecutors is to use any tool in the toolbox to ensure a conviction with the highest possible sentence. The status quo is leaving us with mass incarceration and thousands of innocent people behind bars.

What could prosecutors do differently?

In an ideal world, every prosecutor would work solely for justice, not to win cases at any cost. They would pursue reasonable charges that matched the defendant’s actual behavior without stretching the law. They would ask for reasonable sentences in every case. They would respect the constitutional guarantee of being treated as innocent before trial.

To cut back on mass incarceration, prosecutors could and should refrain from coercive plea-bargaining tactics because we know that they result in innocent people going to prison. They would divert more defendants into court diversion programs where they could get help for addiction and mental health issues instead of paying a high price for a minor offense. They could promote a public health response instead of a law enforcement response in most drug cases.

If you have been arrested, you need help. You can’t afford to accept a coercive plea bargain, and you can’t afford to be held in jail indefinitely before trial. Don’t hesitate to get a criminal defense attorney involved at the first opportunity.