George Zimmerman’s acquittal for the shooting of Trayvon Martin has sparked public outcries of racism. Whatever one’s belief about the trial’s outcome, the problematic reality that African Americans are disproportionately overrepresented in the criminal justice system — in arrests, prosecutions, convictions and victimization — is beyond dispute. In fact, one in three black men can expect to be incarcerated in their lifetime.
But the Zimmerman trial also illustrates other systemic issues plaguing our criminal justice system, such as unbridled prosecutorial discretion and rampant plea bargaining, that drive mass incarceration in the United States.
Unlike George Zimmerman, the vast majority of people never get a full airing of the facts culminating in prosecution and convictions. Ninety four percent of all criminal convictions in state courts are the result of plea bargains; the comparable number in the federal system is 97 percent.
In addition, most defendants lack the resources of a George Zimmerman and cannot afford the expense or time for a criminal trial, where defense attorney fees can cost more than $160,000 on average.
Without proper funding, defendants must rely on public defenders, many of whom are overburdened with hundreds of cases and forced to rely on prosecutors to investigate each case. Defendants in such circumstances are pressured to plead guilty to a “lesser” charge, and begin serving their sentence immediately, rather than spend time in pre-trial detention and take the risk of being found guilty of a more severe charge at trial. The defendant’s response may be pragmatic, but it has nothing to do with the central tenet of the criminal justice system: whether the government can prove its allegations beyond a reasonable doubt. Neither a judge nor a jury makes any determination of guilt; prosecutors do not have to prove their case.
Plea bargains give prosecutors enormous advantages. Prosecutors can “stack” charges, alleging a series of crimes with penalties of varying severity. Plea bargaining determines which crime from the prosecution’s menu the defendant will plead guilty. While charging Zimmerman with serious offenses for shooting an unarmed teenage boy makes sense, prosecutors all too often trump up charges against defendants.
Furthermore, because of the absence of judicial discretion in many sentencing regimes, the plea bargain determines the time the defendant will spend behind bars as well. Indeed, Pew reported in 2012 that the average prison length has increased by 36 percent since 1990, even as plea bargaining has increased. Longer prison terms significantly contribute to the size of prison populations.
The widespread adoption of mandatory minimum sentences for certain crimes also compounds the problem. For example, federal prosecutors pursue mandatory minimum charges in 76 percent of all powder cocaine cases, even though less than 10 percent of these offenders led or managed a drug business. Mandatory minimum penalties increase sentences without regard to the character of the offender or the circumstances of the offense.
The criminal justice system does not have to operate this way. Reforming the system does not mean allowing those guilty of major crimes to roam free, and it does not mean jeopardizing public safety.
The tragic death of Trayvon Martin has renewed calls for reforms to our criminal justice system. Reforming the system means restoring fairness to an imbalanced structure. Limiting the use of plea bargaining and introducing meaningful checks on prosecutorial discretion would go a long way in balancing our system and reducing mass incarceration.
Photo by Michael Fleshman.