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  • Writer's pictureK.M. Bell

How Prosecutors Stack the Deck to Fill Prisons

Across the country, jails and prisons are packed with people who accepted a plea deal. There’s one huge problem with this: for decades, prosecutors have been stacking the deck to secure plea deals even when their case against a person is shoddy.

Let’s break down why and how this happens.

What is a plea deal?

A plea deal or plea bargain is an agreement between the prosecutor and the person accused of a crime. The prosecutor usually offers fewer charges and/or a shorter sentence in exchange for the accused person agreeing to admit guilt. This means that the state never has to go to trial and prove that the accused person is guilty of a crime.

More than 95 percent of criminal convictions in the United States are the result of a plea deal instead of a trial.

While a plea deal requires the accused person to say they are guilty, in practice people sometimes plead guilty even if they are innocent or if the state does not have the evidence to secure a conviction. People do this to avoid the risk of a very long sentence if they lose at trial – the “trial penalty” - or because they are being held in filthy, dangerous jails awaiting trial and just want to go home. Just imagine if you were being held in a crowded jail ransacked by COVID, separated from your family and at risk of losing your job, and the prosecutor said you could go home today if you just admit you did it. What would you do?

Even worse, if a person pleads guilty, they almost always do so before important hearings, in which the court determines if police violated their constitutional rights. This shields police from being held accountable for misconduct and eliminates an important incentive for police officers to follow the rules.

Because the deck is stacked in favor of the prosecutor, the system of plea bargaining is almost always coercive.

Why is plea bargaining coercive?

Prosecutors have many coercive tools they can use to get people to plead guilty, even if they are innocent or if the state’s case won’t hold up in court. You might think prosecutors are not allowed to use their power in this way. But most of the coercive tools prosecutors use are legal. These tools include:

· Mandatory minimum sentencing, which allows prosecutors to threaten much longer prison sentences should someone demand their constitutional right to a trial(known as the “trial penalty").

· Seeking a high cash bail that the accused person cannot afford, which keeps them in jail pretrial even though they are legally innocent.

· Charge-stacking, which allows prosecutors to file multiple charges based on the same alleged crime, more charges than are needed.

Prosecutors might also use tactics that cross the line into misconduct. However, they are rarely, if ever, held accountable for that misconduct. Some examples include:

· Refusing to give the defense evidence as required by court rules, making it nearly impossible for the accused person or their lawyer to understand the case against them.

· Failing to give the defense evidence that could help the accused person’s case– often referred to as “Brady material”.

What is the impact?

Coercive plea-bargaining leads to far more people being convicted and sent to prison, including innocent people, and for far too long.

As noted above, plea deals can prevent the accused person from challenging police misconduct in their case and often limits or even prevents courts from reviewing their convictions afterward.

Even if a person avoids prison time by accepting a plea deal, they are left with a criminal record forever, leading to barriers to finding housing, employment, and even getting student loans.

What can be done?

Every coerced plea bargain is a choice made by a prosecutor, and the top prosecutor in each county in Arizona is elected by the people. Know where your county attorney stands on coercive plea bargaining. If you don’t agree with their approach, ensure you or your loved ones are registered to vote before the next county attorney elections in 2024.

You can join our fight to hold prosecutors accountable here:

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