From the President: Police Brutality and Coercive Plea Bargaining — The Long Shadow of the Trial Penalty
By Martín A. Sabelli, NACDL President
November 2021 issue of The Champion
Last month’s column focused on the painful reality that the trial penalty punishes people of color and the poor much more harshly than others caught in the machinery of the criminal legal system. This month’s column explores the related reality that the trial penalty effectively encourages police misconduct, including police brutality, by shielding police actions from public scrutiny through an assembly line system of guilty pleas.
To explore the relationship between the disappearance of trials and police misconduct, imagine a police officer choosing to pepper spray a nine-year-old girl as she sat in handcuffs in a patrol car, crying for her father (Rochester, New York).¹ Imagine a police officer choosing to throw to the ground, handcuff, and wrestle a 16-year-old girl during at a Texas pool party (McKinney, Texas).² Imagine a police officer choosing to pepper spray and throw to the ground a 17-year-old girl as she waited after school for her bus (Des Moines, Iowa).³ What could have been in the minds of these officers when they acted with violence toward children?
I cannot fathom what these officers were thinking — if they were thinking at all — but I can be certain that none of these officers considered, even for a millisecond, the potential that their conduct would be subject to public scrutiny in a court of law. I am certain that none of these officers were troubled, let alone even marginally deterred, by the thought that anyone would cross-examine them during a suppression hearing or criminal trial about their use of force. These officers understood, consciously or not, what the vast majority of officers in the United States understand: that our assembly line system of guilty pleas — uninterrupted by the suppression hearings and trials contemplated by the Fourth, Fifth, and Sixth Amendments — insulates police from any accountability for their day-to-day, street-level decisions.⁴ Officers know — officers feel — that the vast majority of their decisions, including the questionable use of force, will never see the light of day because the people on the receiving end of their fists, batons, and firearms will, sooner or later, cop a plea that requires them to waive any scrutiny of, or remedy for, police abuse.⁵
In plain terms, thanks to the trial penalty, criminal trials no longer offer a sufficient quantum of opportunities for the community to evaluate the conduct of the police during citizen-officer encounters. Thanks to the trial penalty, police and prosecutors can effectively coerce guilty pleas thereby obscuring, even deliberately shielding, unlawful police conduct from public exposure and review by the courts. Thanks to the trial penalty, police misconduct, including use of excessive and deadly force, thrives in the shadows rather than the light of day.⁶ In effect, the trial penalty directly and indirectly encourages police abuse whether it be in the form of a misrepresentation regarding consent to search, the choice to pepper-spray a nine-year old, or the sustained effort to kneel on the neck of a subdued detainee for eight minutes and 46 seconds.
Unfortunately, no one has yet studied, let alone quantified, the relationship between the disappearance of public criminal trials and the frequency of police misconduct. Moreover, police misconduct, including excessive force, existed well before coercive plea bargaining came to dominate our criminal legal system. Despite this gap in scholarship and the reality that police abuse predates the trial penalty, those of us in the trenches can testify to the number of suppression motions and lines of cross-examination based on police misconduct that we have abandoned because a client has opted to plead guilty in the face of the trial penalty. Every one of these unfiled motions, every one of these unused “chapters” of cross-examination, represents a lost opportunity to identify and address police misconduct for the level of individual officers and systemwide.⁷ On an individual level, every one of these unfiled motions and unused cross-examinations effectively conceals an officer who might have acted and might again with excessive and even deadly force in the future. On a systemic level, every one of these unfiled motions and unused cross-examinations effectively deprives the public of the information it needs to understand the nature and extent of police misconduct in specific jurisdictions or, more generally, address the underlying causes across the United States.⁸ Worse, “bargaining” away these challenges to police misconduct creates perverse incentives for officers to fabricate — often relying on bogus “resisting arrest” charges — in order to leverage (coerce) a plea as a way to avoid public scrutiny of their misconduct.⁹
To appreciate the perversity of leveraging pleas through overcharging by police, we must also recognize that police officers play an important role in plea bargaining. Prosecutors and police officers often consult and collaborate over plea bargaining and, in fact, police have substantial influence in the arena of plea bargaining. According to one scholar,
In a system where juries and judges decided cases, police influence on prosecutors’ plea decisions would not be so important. Juries and judges would have the final say over guilt and punishment. But in our system of ubiquitous pleas, no neutral third party reviews the prosecution team’s decisions about what plea to offer, and these offers essentially determine the defendant’s guilt and punishment. The influence officers have on this process matters precisely because it will not be checked by any outside force.¹⁰
The mechanics here matter: guilty pleas most often occur before misconduct issues are litigated and often result in limited discovery — discovery that excludes evidence of police misconduct which, many prosecutors believe, does not relate to the guilt of the accused. These mechanics — plead before discovery is complete and before misconduct can be challenged — shield the police from being held accountable for misconduct and eliminate an important incentive for police officers to follow the rules.¹¹ Thus, the vast majority of police-citizen interactions escape scrutiny, and the police know that the citizen’s side of the story will rarely be known to prosecutors, courts, juries, and the public. Put plainly, society pays a price when guilty pleas operate to foreclose proof and litigation that would have exposed unlawful government actions or practices, including police misconduct.¹²
To conclude, the Framers — unburdened by the drumbeat of economic efficiency — intended otherwise. The Framers envisioned the energetic dynamic of the adversarial process as a means of protecting rights and liberties on both an individual level and a societal level by unmasking misconduct by state actors in courts of law. The Framers did not intend to set in motion a system of pleas that immunizes state actors by compelled waivers of rights rather than energetic litigation. The Framers bequeathed to us a system of trials designed to shine the light of day into every corner of state action and, having surrendered that beautiful concept, we have failed to protect ourselves, our families, and our communities from police brutality, mass incarceration, and wrongful convictions.¹³
2. “[The officer] raised his police baton toward Dajerria, forced her ‘onto her stomach’ by dragging her by the hair, and then pinned her to the ground and handcuffed her. He also reportedly pointed his firearm at two Black teens coming to Dajerria’s defense.” https://www.teenvogue.com/story/a-black-teenager-is-suing-the-white-cop-who-slammed-her-into-the-ground-for-dollar5-million.
4. Just last month, the Supreme Court sided with law enforcement, again, regarding excessive force based on the doctrine of qualified immunity. Thus — like Malthusian scissors — our laws effectively foreclose people from holding their armed public servants accountable in criminal courts (trial penalty) and civil courts (qualified immunity). As reported by NPR,
Officers are shielded from liability even when it appears they violated civil rights because there is no “previously established law” to challenge them because similar cases have not been pursued because officers are shielded from such cases. … In practice, the doctrine has shielded officers from liability in hundreds of civil cases, even when accused of destroying property, killing innocent people they mistook for suspects, or stealing thousands of dollars.
5. As discussed below, an officer predisposed to violence might or might not be limited by the potential for public scrutiny during a hearing or trial. Nevertheless, trials would help to identify many such “rogue” officers, thereby helping to take them off the streets. In this respect, NACDL’s Full Disclosure Project — a database of public information regarding officer misconduct — is designed to identify officers who have engaged in misconduct in order to identify or neutralize the “bad apples.” Even this type of cutting-edge effort, however, cannot replace the role, deliberately established by the Framers, of public trials in revealing and thereby addressing abuse by state actors, including law enforcement.
6. Obviously, police misconduct has many causes, including racial bias and, in fact, the children in these examples were Black. According to the Marshall Project, “Black youths make up the majority of kids on the receiving end of police violence — and a striking number of them are girls, an investigation by the Marshall Project found. … As Black communities are painfully aware, and researchers have detailed, Black boys bear the brunt of police violence against minors.” Police Hurt Thousands of Teens Every Year. A Striking Number Are Black Girls, https://www.themarshallproject.org/2021/11/02/police-hurt-thousands-of-teens-every-year-a-striking-number-are-black-girls.
7. I am given to understand, for example, that Mark Furman’s career as an LAPD homicide detective suffered appreciably after being subjected to cross-examination in People v. Simpson.
8. The waiver syndrome has crept into the civil dimension to police misconduct. Release-dismissal agreements, pursuant to which the prosecution agrees to dismiss criminal charges in exchange for the defendant’s agreement to release his right to file a civil action for alleged police or prosecutorial misconduct, have been demanded by prosecutors and permitted by courts. Town of Newton v. Rumery, 480 U.S. 386, 394 (1987).
9. Following the tragic death of Eric Garner, a WYNC study of New York arrests found that Blacks accused in misdemeanor drug possession cases are 85.4 percent more likely to be charged with resisting arrest than whites accused. WNYC analyzed arrest records for some of the most common criminal charges in New York City since 2012, finding that Black defendants are significantly more likely than white defendants to be additionally charged with resisting arrest in these cases. https://www.wnyc.org/story/resisting-arrest-black-white.
10. Jonathan Abel, Cops and Pleas: Police Officers’ Influence on Plea Bargaining, https://www.yalelawjournal.org/essay/cops-and-pleas-police-officers-influence-on-plea-bargaining.
11. In 2018 NACDL reported that prosecutors require defendants to waive the right to appeal their sentence or important legal rulings including, for example, the legality of the criminal statutes or police conduct, including the legality of the stop, search, or seizure, or the acquisition of other forms of evidence [and] … [i]ncreasingly, prosecutors are requiring defendants to waive their right to receive exculpatory evidence in the possession of the government.” Nat’l Assn. Crim. Def. Lawyers, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It (2018), https://www.nacdl.org/Document/TrialPenaltySixthAmendmentRighttoTrialNearExtinct.
12. Norman Reimer & Martín Sabelli, Editors’ Observations, 31 Fed. Sent’g Rep. 215–221 (April/June 2019).
13. According to the National Registry of Exonerations, thousands of people have been wrongly convicted in the United States, many of whom pleaded guilty in the face of the trial penalty. https://www.law.umich.edu/special/exoneration/Documents/NRE.Guilty.Plea.Article1.pdf.
About the Author
Martín Sabelli represents individuals in state and federal courts in a wide range of civil and criminal matters from the simplest of cases and gang-related prosecutions to the most complex white collar investigations and death penalty prosecutions. He is a speaker at seminars and trial training programs for NACDL, the National Criminal Defense College, and other defense programs around the world.
© 2022, National Association of Criminal Defense Lawyers. All rights reserved. This article originally appeared in The Champion magazine and is reprinted with permission.