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Three ways prosecutors use coercion in plea bargaining

Plea bargaining is a bedrock of our criminal justice system. Governments simply don't have the money to take every criminal defendant to trial. They rely on the fact that a large proportion of defendants will opt for a plea deal if it means less prison time.

Our criminal justice system assumes from beginning to end, however, that people who agree to plead guilty are actually guilty. They are not given much due process and their appeals are very limited.

Considering both state and federal courts in the U.S., plea bargains account for over 95% of all criminal case resolutions. That percentage practically guarantees there are many innocent people pleading guilty.

Indeed, we know that there are plenty of people who feel coerced into pleading guilty. Consider the case of Lavette M., who got into an altercation with her mother-in-law. Although both women were injured, Lavette was charged with aggravated assault and ordered to pay $250,000 in bail, which she could not afford.

The unaffordable bail meant that she spent 14 months in jail waiting for trial. She wasn't allowed to see or touch her children even once. She lost her job and got sick. She was traumatized in jail. When she was finally released, she wasn't up to fighting, potentially for years, to prove her innocence. She pled guilty so her ordeal would be over.

Unaffordable bail leading to long pretrial detention is one way that people are coerced into pleading guilty even when they have a good chance of being acquitted at trial.

Or consider George A., who was assaulted by prison guards but charged with assaulting a guard. He knew he was innocent, but he was told that if he insisted on a trial, he would face a ten-year minimum sentence, so he pled guilty. Prosecutors never mentioned they had a video of the incident that exonerated him. If he had gone to trial, the prosecutors would have been constitutionally required to turn over the tape.

Threatening a much more serious crime if a defendant insists on trial is often referred to as the "trial penalty." It is also highly coercive.

The third way prosecutors can be coercive is to withhold evidence that weighs on the side of the defendant's innocence until after the plea bargain is made. Courts are currently considering whether doing this is a violation of the prosecutor's legal duty to seek justice.

Your best chance against coercive plea bargaining is a lawyer

If you're charged with a crime, you're facing the full power of a prosecutor. You can't afford to try to bargain on your own. You need an experienced criminal defense attorney to protect your rights.

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