Why Is It OK For Prosecutors To Get Guilty Pleas By Threatening To Torture?

The Outside the Beltway blog doesn’t put it quite that way in this great post, “How the Drug War Disappeared the Jury Trial,” but I think it is an apt description of what is going on.

For example, when United States Army veteran Ronald Thompson fired two warning shots into the ground, he intended to scare off his friend’s grandson, who was attempting to enter her home after she denied him entry. He never imagined his actions would leave him facing decades in prison.

He was charged “with four counts of aggravated assault with a firearm” under Florida’s 10-20-Life mandatory minimum gun law. Prosecutors used the minimum twenty years in prison he faced to try to avoid a trial by asking him to accept three years in prison. While the deal remained on the table throughout the trial, he was ultimately convicted and sentenced to twenty years in prison.

Ronald Thompson’s case, and so many others, reveals that prosecutors don’t think that twenty-year sentences for shooting into the ground constitute justice. Why else would the plea bargain stay on the table.

The case is an example of the trial penalty in action. Utilized by prosecutors to scare accused citizens into pleading guilty, the trial penalty threatens severe sentencing outcomes if found guilty at trial compared to the plea. And the the last thirty plus years have shown that it works.

This is what I mean by threatening torture. The prosecutor discourages a jury trial by using his power to present the possibility of a relatively light sentence, but threatens much more pain and horror if he rejects the plea offer and loses at trial.

Prior to 1980, the percentage of cases resolved by guilty pleas was anything but consistent. But since then the trend has risen sharply from seventy-seven percent to, according to a recent Supreme Court case opinion, “[n]inety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.”

By passing laws with fixed-minimum sentences for almost all crimes, legislatures, beginning largely in the 1980′s, removed discretion over offender sentencing from judges and handed prosecutors the power to determine which sentence a defendant will receive. Judges have no power to override the mandatory prison terms these laws carry, regardless of the individual circumstances of each case. This is especially troubling because of the overly punitive penalties these laws carry. Even worse, when a case does goes to trial, the jury doesn’t even know how much time a defendant faces.

So judges are reduced to the role of umpire in the game, but they have no way to intervene when the accused is facing penalties that are wildly unjust. Juries cannot even practice their right to nullify the law because they are not told what penalties the accused faces.

This entire situation is toxic. It needs to be unwound. And conservatives need to lead the way in opposing these minimum sentencing rules.