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Does rejecting a plea deal mean a longer sentence?

Felicity Huffman & Lori Loughlin. Credit - Associated Press

Yes, according to data and academics who study the issue.

For example, the average sentence for defendants who pleaded not guilty but were later convicted of unlawful possession of drugs was SEVEN TIMES LONGER tha

n those who pled guilty through a plea bargain. This disparity is according to an analysis of court records by the University of Baltimore School of Law.

According to the study's, Stephen P. Grossman, a former New York City district attorney, plea bargaining has been prevalent for more than a century. "We are not a system of trials," he said. "We are a system of plea deals."

Grossman says judges and courts don't see plea bargaining as a lousy alternative but as "giving people a break for pleading guilty."

However, he ads, "because courts wouldn't admit to this, they come up with all these absurd reasons for why they give people less time."

For someone who is an outsider and not familiar with the federal criminal justice system, they might say, "Why would someone plead guilty if they are innocent of the crime?"

The answer is simple for anyone with a fundamental understanding of human nature. People charged with crimes at the federal level plead guilty because they want less time, which is what they or anyone else would do.

If you're getting four years in a plea deal, would you risk getting twenty-eight if you went to trial? After all, the conviction rate at the federal level is above 95%, so who would risk that type of catastrophic downside if you don't prevail. Those that do almost always face a significantly enhanced sentence for exercising their constitutional right to a trial.

The New York Times recently summarized it best - "We now have an incredible concentration of power in the hands of prosecutors," said Richard E. Myers II, a former assistant United States attorney who is now an associate professor of law at the University of North Carolina. Meyers said that so much influence currently resides with prosecutors that "in the wrong hands, the criminal justice system can be held, hostage."

This power transfer to prosecutors from judges has been so significant that a vital trial ritual we know so well from TV courtroom dramas has itself become a fiction. This is evident when a jury starts a trial, and they are informed of their duty to determine guilt or innocence, then recommend a proper sentence. This second part is no longer true when mandatory minimums and, in many cases, sentencing guidelines apply, but jurors often do not know that.

Paul Cassell, a conservative former federal judge and prosecutor who is now a law professor at the University of Utah, describes the power shift as a zero-sum game. "Judges have lost discretion, and that discretion has accumulated in the hands of prosecutors, who now have the ultimate ability to shape the outcome,"

Mr. Cassell further said. "With mandatory minimums and other sentencing enhancements out there, prosecutors can often dictate the sentence that will be imposed."

Without question, plea bargains benefit many defendants who have committed crimes and receive lighter sentences than they might after trial. But the shift from 1 out 12 cases being decided by trial 25 years ago to it now being 1 in 40 is a fact that can't be ignored. This disparity is also evident in the number of acquittals. Last year, there was only one acquittal for every 212 guilty pleas or trial convictions in federal district courts. Thirty years ago, the ratio was one for every 22.

For anyone facing prosecution by the federal government, understanding the implication of our plea bargain system is imperative. As of this writing, the college admissions scandal is playing out. Those who rejected their initial plea deals, like Lori Loughlin, are currently facing a third wave of charges, setting the stage for longer sentences than their co-defendants.

Time will tell.

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