The Plea

Several years ago, Frontline offered viewers an incredible look inside the plea bargaining process by documenting the stories of several individuals confronting the difficult choice of whether to accept a plea offer. They each faced different charges in various parts of the country, but the dilemma was the same. The program was entitled The Plea.

It is the centerpiece of America's judicial process: the right to a trial by jury system that places a defendant's fate in the hands of a jury of one's peers. But it may surprise many to learn that nearly 95 percent of all cases resulting in felony convictions never reach a jury. Instead, they are settled through plea bargains in which a defendant agrees to plead guilty in exchange for a reduced sentence.

"The real American justice system is unlike anything depicted on Law & Order and Court TV," says producer Ofra Bikel. "I know I was stunned when I realized that only about 5 percent of all felony convictions result from jury trials. The rest are settled by plea bargains. And these deals aren't always to the defendant's advantage."

"The Plea" tells several stories -- different people, different charges, different parts of the country, all with one thing in common: the difficult dilemma of confronting a plea.

One particularly interesting story was that of Erma Faye Stewart, who learned first hand the collateral consequences of pleading guilty, a topic often overlooked by those deciding down which path to venture.

Critics, however, contend that the push to resolve cases through plea bargains jeopardizes the constitutional rights of defendants, who may be pressured to admit their guilt whether they are guilty or not. In Erma Faye Stewart's case, for example, she says her defense attorney encouraged her to accept a plea bargain when she was arrested in a major drug sweep based upon information provided by a police informant who was later deemed not credible. The 30-year-old mother of two steadfastly maintained her innocence, but says her court-appointed defense attorney didn't want to hear it.

"He was, like, pushing me to [plead guilty and] take the probation -- he wasn't on my side at all," says Stewart, who tells FRONTLINE that after spending 25 nights in a crowded jail cell, she decided to follow her attorney's advice. "Even though I wasn't guilty, I was willing to plead guilty because I had to go home to my kids. My son was sick."

After accepting the plea bargain and 10 years' probation, Stewart was freed. What she didn't know was that under the terms of her probation, she would be required to pay a monthly fee to her probation officer. Her felony conviction also meant that the single mother was banned from the federal food stamps program. Within three years of pleading guilty to a crime she says she didn't commit, Erma Faye Stewart had fallen behind in her probation payments and been evicted from her home.

"One reason that a lot of people plead guilty is because they're told they can go home that day, because they will get probation," says Steve Bright, a defense attorney and law professor who serves as director of the Southern Center for Human Rights. "What they usually don't take into account is that they are being set up to fail."

The program's website also offers materials and links regarding plea bargaining. These materials include commentary from Professors Stephen Schulhofer and Albert Alschuler on the question, "Can the system be fixed?"

Law professors Stephen Schulhofer and Albert Alschuler believe there is a way to ensure the defendant doesn't forego getting a public hearing while at the same time cutting down on the onerous costs of giving every defendant a jury trial. "The simple solution," says Schulhofer, "is to discourage plea bargaining by giving defendants an incentive to give up the jury only, and take their case to a trial before a
judge."

Philadelphia's trial system largely has worked this way for decades says Schulhofer. "What happens is that well over 50 percent of the cases are tried before a single judge. About 5 percent of the cases go to a jury trial. And again, defendants know and lawyers know from experience that juries tend to react in certain ways to certain cases and that effects how judges will decide cases without a jury. A judge knows that a jury wouldn't convict in a certain type of case, he has to take that into account, or no defendant would accept a trial before that judge. At the same time the system can give slightly lower sentences, the gap obviously doesn't have to be as great because the defendant isn't giving up as much. This system has worked in practice very effectively for many, many years, so it's not an imaginary idea, and it essentially solves 99 or 100 percent of the problems we've been discussing."

Alschuler believes there are three ways to fix the system. "Plan A is just spend the money. We're one of the richest nations on the planet, and we've decided we can't afford to give criminal defendants their day in court? There's got to be something wrong with that picture, but the problem is that our trials are so over-proceduralized that maybe we can't afford to do that. … Plan B would be to simplify our trial procedures, and thereby make trials more available to defendants who want them. We don't need these prolonged jury selection procedures. We don't need the complicated rules of evidence; there are lots of other ways we could simplify criminal trials."

And Alschuler's Plan C is the city of Philadelphia's model -- a trial before the judge alone. "Why did that happen? Well, because in Philadelphia, as everywhere else, a defendant who asks for a jury and was convicted got a very tough sentence. But if a defendant asks for a trial before the bench, his sentence was not likely to be tougher than a guilty plea sentence. So guilty pleas were very low. The defendant was tried before a court in a relatively expeditious proceeding, typically taking only a half an hour for an ordinary street crime. That's a troublesome practice for some of the same reasons that plea bargaining is troublesome -- I mean, you've got a right in the Constitution to a jury trial. … But at the same time, this is a system where the defendant does have his say before an impartial third party, and he does not give up his chances of acquittal. …"

This program is well worth watching on-line, and the additional materials provided on the program's website provide excellent additional resources.