About 95 percent of criminal convictions are a result of plea negotiations between prosecutors and defense attorneys. The process by which these deals are reached constitute a system of “underground justice,” that too often shortchanges defendants—and is overdue for reform.
That’s the central argument of a new book by William R. Kelly, Ph.D., director of the Center for Criminology and Criminal Justice Research at the University of Texas at Austin, and one of the country’s leading criminologists. The book, “Confronting Underground Justice: Reinventing Plea Bargaining for Effective Criminal Justice Reform,” was written with U.S. District Judge Robert Pitman.
In a conversation with The Crime Report, Kelly explains how plea bargaining has effectively distorted the notion of equitable justice, why it often leads to recidivism, and offers an innovative alternative to a practice that is more concerned with moving cases quickly than addressing individual issues of defendants. The conversation has been slightly edited for space.
The Crime Report: What is underground justice?
William R. Kelly: That particular reference pertains to plea negotiations, which are not conducted in the light of day. It’s basically conducted through the underground—in prosecutors’ offices, in hallways, and on cellphones.
TCR: You suggest there’s a close connection between the prevalence of plea negotiations and getting tough on crime.
Kelly: The U.S. has had it for many, many, many decades—it’s not something new to the tough- on-crime era. But it played a fundamental role in how we got to where we are today in terms of our focus on criminal conviction and punishment. Plea negotiation is a fast track to criminal conviction and punishment. Punishment is really the currency of plea negotiation. It is what’s being negotiated, whether it’s time in prison, time on probation, etc. It facilitates the growth of tough on crime policies.
TCR: A plea deal is supposed to be a negotiation that satisfies both parties—the prosecution and the defendant—but most times these plea deals aren’t favorable to the defendant. You discussed in the book how even innocent people take plea deals. How does this happen?
Kelly: It happens because there are a variety of strategies commonly used for motivating plea deals: threats of greater punishment, restrictions on evidence, use of tactics during negotiation that might persuade someone to confess to something. The Fifth Amendment basically says confessions are fine as long as they are voluntary, but the courts haven’t been clear about what voluntary means. When someone is threatened with greater punishment, it’s hard to imagine that they feel completely free and open in making a decision.
There are situations—we don’t know how many—where individuals find themselves in a particular situation where the government claims they have certain evidence, and pleading to a crime they didn’t commit may be people’s best option. And again, we don’t know how often this happens because the whole negotiation happens underground. It’s not in the bright light of the courtroom.
TCR: And many defendants aren’t aware of the collateral consequences.
Kelly: This raises a number of issues. One is longer term: what are the consequences of criminal conviction? What are the consequences of being incarcerated? On the other end of that, we know there are phenomenal problems with housing and employment, social services and a whole lot of other things—where someone can live and work.
It also raises issues during the pleas process itself. The majority of individuals in the criminal justice system have at least one mental health problem, and we know that a vast majority of incarcerated people have substance abuse problems. The government is required to prove two things to convict somebody of a crime: One is the criminal act itself, and the other is something referred to as criminal intent.
However, that issue—the criminal intent—is rarely raised during the plea negotiation process. The goal here is to get somebody to confess to a crime. Once that’s done, the process is done. The only thing left to do is decide how much punishment they get. So, it raises issues there about how well can criminal defendants negotiate in a process that requires at least some sense of judgement exercised by the defendant, presumably assisted by adequate counsel. And that raises other issues regarding how much time and resources public defenders have.
TCR: How would our criminal justice system and our prisons look if more defendants rejected plea deals to go to trial instead?
Kelly: We wouldn’t recognize our criminal justice system because it would fall in on itself. We don’t have the resources really. We don’t have the judges, the courtrooms, the staff and the time to really conduct anymore criminal trials. We can play the if game, but the reality is that it can never happen. The vast majority of criminal convictions—misdemeanors and felonies—are plea negotiated. And one of the key reasons for that is that it’s a quick and efficient way to expedite cases. We don’t have the resources to do much else.
But if it did happen, I think we would be looking at harsher punishment for people convicted of crimes.
TCR: Is there a place for plea negotiations in our society?
Kelly: Absolutely. The original intention was that the plea deal should be used when there was no disagreement about the evidence. The whole point was that this was for cases where the evidence is clear and there was no room to argue for innocence. If both parties agree, then why should they waste resources on a trial? That’s what it was designed to do. I think we far exceeded that. Ninety-five percent of all criminal convictions happen in that manner, and I suspect there are concerns with evidence in many of those cases.
TCR: Is there a connection between the prevalence of plea deals and recidivism?
Kelly: Yes. The whole point of the book is that we need to take a much closer look at the individuals who are going through the criminal justice system to get a sense of what brings them there in the first place and employ strategies for addressing those issues. Plea negotiations runs in just the opposite direction. It is the fundamental tool for moving many cases as quickly as possible. What that gets us is a primarily punishable-focus set of outcomes that do nothing to reduce recidivism. Plea negotiations certainly promote high recidivism because it’s not designed in the way we currently use it to do anything about it.
TCR: For this project, you interviewed prosecutors. Were you surprised to find that many prosecutors didn’t believe reducing recidivism was their job?
Kelly: Yes and no. I was dumbfounded when I heard it. I certainly expected it because that’s what the system looks like, but the fact that they actually said that—I was shocked. But what they’re concerned with is keeping their heads above their caseload. So, moving as many cases as possible is really the name of the game, and anything that interrupts that is seen as counterproductive.
TCR: You and Robert Pitman proposed having a neutral mediator in the courtroom to help ensure that plea negotiations are fair to both parties. Please explain.
There are two primary policy recommendations. One is procedural- or due process-focused—that’s what the plea mediator focuses on. The other one focuses on recidivism reduction.
We identified a long list of issues, concerns and problems with plea negotiations, many of which draw into question fairness or equity. The state has the upper hand in plea negotiations. The prosecutor lays out the terms of the plea deal, and there’s all kinds of evidentiary issues. There are all kinds of voluntary confession issues. There are representation and access to counsel issues.
So, what we propose is to add another element to the court system, and that’s someone to operate as an independent, neutral third party to oversee the plea negotiation process and whose primary concern is to enhance the due process protection that the constitution and supreme court case law provide to criminal defendants. It might be helpful to have another set of eyes and a voice engaged in the process of plea negotiations, so it’s not just the prosecutor, the defendant and the defense council.
An obvious question is “isn’t that what judges supposed to be doing?” In theory, yes. Judges typically will make sure that plea negotiation was arrived properly, that someone was not promised something in exchange. But judges don’t really have the time to do it all. Their dockets are just as bad as the prosecutors’ casebook. Therefore, I don’t think it’s realistic to expect judges to engage in this plea negotiation process. That’s why we think it’s important to have this third-party set of eyes to oversee the process.
TCR: And who do you recommend for these mediator roles? Could it be an ordinary community member?
Kelly: This would not be a community-member kind of role. It would have to be someone who has expertise in criminal law and criminal procedure because they have to be aware of the issues with plea negotiations. They need to know what a voluntary confession looks like and what is adequate representation and counsel.
TCR: Who’s your audience for this book. Who should read it?
Kelly: The book is for anyone, but particularly for judges, prosecutors, and defense counsels. We talked to them, and they are the ones who are most in a position to change how things are done. The goal of this book is to identify fundamental changes to the criminal justice system, particular to this up-front phase of criminal pretrial proceedings. The whole point here is to examine the roles played by judges, prosecutors, defense counsels and pretrial folks and understand what needs to change among all those parties to reduce victimization, reduce recidivism and save lots of money.
The point I made in all the books I’ve written on this topic is that criminal justice reform is local. We’re talking about roughly 3,100 counties in the U.S, hundreds and hundreds and hundreds of local prosecutors who can change how they go about doing business to more effectively reduce recidivism
TCR: As you just mentioned, a lot, if not all, of your books deal with changing the status quo.
Kelly: Not too many people out there believe the criminal justice system is doing a good job. If you look at recidivism rates of 85 percent and the direct loss of billions of dollars each year—no matter what metric you want to use, you really can’t spin this into a positive situation. So, based on that premise, the obvious question is “Where the hell do we go from there?”
There have been efforts focusing on addressing slices of issues within the criminal justice system, like reducing incarceration, etc. I agree with all that, but what we really need to do is take a more holistic approach. And also, the more I wrote about criminal justice reform, the more it became obvious to me that the most important place to invest criminal justice reform resources is at this pretrial stage and particularly in the prosecutor’s office.
Again, plea negotiations are not designed to identify people who have a mental health problem. They are not designed to identify someone who had a traumatic brain injury, neuro-cognitive impairment; and they aren’t designed to address someone who has a substance abuse disorder.
*Simply convicting and sending someone to prison who has a mental health problem will not change that; it will only make it worse. That’s one of the key reasons why we have high recidivism. We don’t really engage in the reasons why people engage in crime. A part of that is because prosecutors are lawyers. They’re not behaviorists. They’re not psychiatrist. They’re not psychologist. They’re lawyers: they know the law and they know caseload demand.
So, in addition to the plea mediator, we propose the concept of the expert panel—psychologists, psychiatrists and clinical social workers who can screen and assess and diagnose individuals when they come through the criminal justice system. This in turn provide prosecutors with much better information so they can decide what to do with a particular individual on a case-by-case basis.
TCR: What’s next for you? Do you have any more projects coming out?
Kelly: I have already started a new project. In the last three of four years, we’ve seen the election of reform-oriented or progressive prosecutors—Larry Krasner in Philadelphia and Kim Foxx in Chicago, for example. In this next project, I’m interviewing these folks to explore two main questions: what factors play into their election and what happens once they get into office? How do they define reform? How are they implementing change and what kind of barriers do they run into?
J. Gabriel Ware is a TCR News Intern. Readers’ comments are welcome.