Via HNMCP Blog
By Stephanie Kelemen, J.D. ’22
Plea bargains are like medications with bad side effects—extraordinarily painful to take, but they get the job done. In some cases, the pain outweighs the benefit of the treatment. But in the vast majority of cases—97 percent to be precise—criminal defendants take their medicine. And it hurts every single time.
I should know—I took a plea when I was 16 years old, I have represented criminal defendants in plea negotiations, and I have conducted research into the process of plea bargaining.
It happened to me almost exactly 10 years ago.
I’m standing up at the podium, slightly behind by lawyer. My focus is on balancing in my heels—they are a size too big, but I got them on clearance. The Judge asks the question I knew was coming: “Are you guilty of this charge?”
We had been working on negotiating this plea for the past six months. Every day that the case dragged on, I felt disconnected from the world, as if I was being suffocated from inside my own body. Today, the prosecutor finally agreed to what I wanted in the hallway outside the courtroom. It cost me my dignity—I cried to the prosecutor and begged him to acquiesce—but at least this whole thing would be over.
I nod my head, making eye contact with the Judge. “You must say your answer out loud.”
I don’t want to say it, but I feel like I have no real choice. Once the police charged me with a crime, I had two options: take a plea deal or go to trial. As much as I would relish the opportunity to prove my innocence at trial, that is not a real option. Even though the Constitution says that everyone has a right to an attorney, in Colorado, juveniles only get a public defender if their parents/guardians have less than $1,500 in liquid assets. I had to pay for every moment of my lawyer’s time. And how much did she think it would cost to go to trial? At least $10,000.
“Yes,” I finally respond to the Judge’s question. “But I have something I would like to say.” I lift up a statement I prepared and start reading. I tell the Judge about my shattered ideals. I tell her about how I learned there is no such thing as the presumption of innocence in this country—that once you are charged with a crime, you are guilty until proven innocent. I tell her that at the age of only 16, I have lost faith in our legal system.
The judge responds: “if that is how you feel, then why are you taking this plea?”
That question has bothered me for the last decade. How could a judge, someone who is intimately familiar with the law and observes the administration of justice every day, not understand why I would take a plea I was so unhappy with? The best answer I could come up with was that this judge had her head in the sand—she wanted to believe that justice was being done in her courtroom. It wasn’t until I started representing criminal defendants as a student in Harvard Law School’s Criminal Justice Institute clinic (CJI) that I began to wonder if there was more to her question.
When I first began at CJI, I inherited several clients whose cases had been pending for years. Some of these cases had legal issues that needed to be addressed prior to resolution. But for others, all that stood in the way of a resolution was an agreement with the prosecutor. I wondered why so many cases take so long to resolve when an agreement could be reached within a single conversation. After all, a national study of public defenders found that they spend on average a total of 20 minutes per misdemeanor case negotiating a plea.
My supervisor offered one explanation: “an older case is a better case.” Basically, the idea is that prosecutors are more willing to give lenient deals in cases that have been pending for a long time. As much as I trusted my supervisor’s expertise of criminal defense litigation, I was not ready to subject my clients to long waiting periods without putting up a fight. I had just completed Harvard Law School’s renowned Negotiation Workshop the previous year, so I believed that the solution was to take a more principled approach to plea negotiations. Telling me that the principles of negotiation do not apply to the criminal defense context was like telling me that the laws of physics do not apply to space travel.
But after many unsuccessful attempts to negotiate better deals for my clients, I started to wonder if there is something that makes negotiations in the criminal context special. After completing the Negotiations Workshop, I had negotiated everything from commercial contracts to divorce settlements. Not even disgruntled ex-spouses had presented as much resistance as I was getting from prosecutors.
Perplexed, I went to see Deanna Parrish, my former negotiations course professor and a clinical instructor for Harvard Law School’s Dispute Systems Design Clinic. I’m sitting in her office in search of answers on a sunny winter morning. Her dog, Guava, settles into a nap in the corner.
Deanna gets out a white board marker and draws a circle on the board. “Here you are trying to negotiate.” Then she draws a large circle around the first circle. “And here is the system that you are negotiating within.” She explains that negotiations skills and tactics focus only on the first circle, but they are powerless to change the larger circle.
Plea bargaining in the criminal justice system is a widely studied topic. Since only about 2–3 percent of criminal cases proceed to trial, plea bargaining has never been more important to the administration of justice. Many academic papers that identify issues with plea bargaining conclude that the solution lies with giving attorneys more robust negotiation training. But according to Deanna, this may not be enough.
“System-level interventions may be necessary when you have exhausted your negotiation skills,” Deanna explained. This is exactly the type of work Harvard’s Dispute Systems Design Clinic does across industries—the issue of a system stifling efficient negotiations is not unique to the criminal justice context. But how exactly does the criminal justice system impact individual plea negotiations? And what interventions could a court system put in place to foster faster and more just resolutions?
To answer these questions, I needed to talk to the people participating in plea negotiations. I wanted to explore the process, rather than the outcome, of plea bargaining to understand what was making these negotiations so difficult. I decided to home in on Massachusetts Municipal and District Courts, which only hear criminal cases with a maximum penalty of two-and-a-half years. I spoke with five practitioners, two prosecutors and two defense attorneys, with extensive experience negotiating pleas in these courts.
“You’re playing with poo,” a career defense attorney told me when I explained I am researching how Massachusetts Municipal and District Courts could make plea bargaining more efficient. “It’s like you are saying you want to make a cake, but the only ingredient sitting on the counter is poo. No matter how carefully you make the cake, it’s still going to taste like…”
He has a point. Mass incarceration, racialized policing, and the criminalization of poverty and mental health issues are some of the major flaws with our current criminal justice system. Reforms targeted at increasing the efficiency of the plea-bargaining process reinforce a system that many believe we should be deconstructing. Is there a way to fix the system without reinforcing its problematic elements?
I don’t know the answer to that question, but my interview findings revealed that those problematic elements are deeply intertwined with the process of plea negotiations. It turns out that plea bargaining in Massachusetts Municipal and District Courts is inefficient due to difficulties in reaching an agreement that both sides perceive as fair.
Generally, the prosecution makes an offer that the defense is not ready to accept. The defense then attempts to negotiate a better deal, usually through multiple, brief points of contact. If those efforts are fruitless, the defendant eventually comes to terms with the situation and accepts an offer they view as unfair. If the defense is able to get a better offer, the defendant similarly accepts when they feel the offer is unlikely to get better. This whole process can take many months and end with a result that is not hugely different from what the prosecution initially offered.
Why does the process look like this? Why is the prosecution always in the position of “offering” a deal to the defendant? Why are defendants unable to make headway in negotiating for an offer they view as fair? My conversations with local defense attorneys and prosecutors, my experience representing criminal defendants, and my research into integrative negotiation theory revealed several system-level root causes of this status quo.