Starting to Really Understand

By Phil Basso, Deputy Executive Director, APHSA VIEWS 1

A competent prosecutor can indict a ham sandwich...


(This is part 4 of an ongoing series. All previous posts can be found here: Structural Inequities in the Criminal Justice System: A Personal Account.)


“Don’t think about what happens after your vote.” I knew what our court liaison meant--the prosecutors had been reminding us daily that probable cause is different than guilt beyond a reasonable doubt. But I couldn’t help thinking that we were assuming a lot about what happens to the accused later in the criminal justice process. Once they were indicted, we were assuming that people were then going to have a trial with a petit jury and a defense lawyer in their corner. We were assuming that the entire jury would have to find them guilty beyond a reasonable doubt for them to go to jail or otherwise pay for these crimes. We were assuming much more preparation and evidence would be needed by our prosecutors for a jury trial and conviction to happen. This is what they kept reminding us after all.  


I was already familiar with the option of plea bargaining—the accused settling on a reduced conviction and sentence by foregoing a jury trial. But it wasn’t until I heard about or saw the accused, day in and day out, that I wondered how often this occurred, and under what circumstances. "Thinking about what happens after I vote” started to seem awfully important in reality versus what we were being told in theory.


Back home in front of Google, it was easy for me to quickly find out the following things:


- Most criminal indictments never see the light of day. They never get in front of a petit jury because they are plea bargained.


- In 1977, 25% of criminal indictments resulted in jury trials. That has since shifted to 3% - 8% today, depending on the jurisdiction in question. Why so few and why this big shift?


- Due to evolving case law from our country’s higher courts, the complexity and           therefore cost of criminal trials has risen dramatically since the Sixth Amendment was written.


- Minimum sentencing laws, especially for some drug-related crimes, have created         much greater differences between a plea bargain and what will happen if a person is   convicted at trial.


- Almost all poor people who are indicted for a crime plea bargain. For the most part     they do not have enough money for bail and for a good defense attorney.


- Public defenders may be good at the law and at trial but they are compensated for the number of cases they handle and close, not for winning cases at trial.


It was also easy for me to link what I was learning to my experience so far on the grand jury. A large majority of the accused in the cases we were hearing so far were poor people and minorities, Black or Hispanic. Once we voted to indict them, it was very unlikely that they were ever going to trial. In other words, we were in essence giving them a felony record right then and there, and maybe much more than that depending on their ultimate plea bargain. And it gets worse, illustrated by this additional finding:


- Grand juries support indictment requests from prosecutors at such a high rate that,     according to legal scholars, “a competent prosecutor can indict a ham sandwich.” 


Of the 20-plus indictment requests our grand jury voted on, we rejected one. And that time, the prosecutor returned and asked us a range of questions on where they went wrong. Why? Because prosecutors can go to another grand jury and ask for an indictment again. I began to realize that the way things were set up, a grand jury was not so much a constitutional shield as it was a rubber stamp for indictments and plea bargains, with no “reasonable doubt” test ever being met by anyone! And sometimes—maybe 1% or maybe 10% of the time—innocent people were pleading guilty to felonies. That is, poor minority people were sometimes pleading guilty to felonies, even if they were innocent.  


*This is part 4 of an ongoing series, Structural Inequities in the Criminal Justice System: A Personal Account. You can catch up here.