Twenty-five years ago, prosecutors offered T a deal: 15 years, with eligibility for parole after 12 years and nine months. He chose to go to trial, and was sentenced to life.
“I just couldn’t bring myself to plead to something I didn’t do,” he told Filter. “[But] if I had known how unjust the justice system was, I may have sucked it up and took the deal.”
People who oppose decarceration will often say that sentences need to be served in full, otherwise victims don’t get justice. But one problem with this is that sentence length is arbitrary—if T needs to die in prison in order for justice to be served, why was he offered 15 years?
For T and others across the country who received life or de facto life sentences after they refused a plea bargain, the extra decades behind bars come from the well-established phenomenon prisoners call “trial tax.” The government isn’t punishing them for whatever events led to their conviction. It’s punishing them for taking up time and resources by exercising their right to go to trial, and it’s sending a warning to whoever might want to go to trial next. Almost all convictions in the United States come from plea deals.
Filter surveyed 35 people currently incarcerated at South Central Correctional Facility, one of the four Tennessee prisons privately operated by CoreCivic, about the plea deals they were offered and whether they’d accepted them. Twenty-four had taken plea deals. Of the 11 who chose to go to trial, 10 are now serving life or de facto life sentences. The offers they rejected averaged 17 years. The sentences they are serving instead average 53.6 years. One of the men sentenced to life had been offered a plea for six years.
“The state offered me eight years. When I told them I needed to talk to my family first, they said, ‘Tomorrow it will be 10 years.’”
“I always felt like my attorney was working harder trying to get me to sign a deal than he was trying to defend me,” J told Filter. Like T, he is serving a life sentence after turning down a plea offer for 15 years.
Trials are expensive. Most people can’t afford a private attorney, and end up with court-appointed counsel too overloaded with cases to spend any real time on theirs. So the public defender will push them to take the plea deal, to close the case more quickly and with the least amount of work. This was a common thread among the 35 prisoners reached by Filter, many of whom recalled being pressured with phrases like:
You have one hour to decide.
This is a one-time deal.
If you don’t take this deal, you’ll never get out of prison.
We’re giving you a chance to still have a life.
“The state offered me eight years,” said B. “When I told them I needed to talk to my family first, they said, ‘Tomorrow it will be 10 years.’” He took the deal for 10 years.
Another man who took a plea deal told Filter that after his plea hearing and sentencing, his family had seen his court-appointed attorney and the prosecutor outside shaking hands and laughing.
“I wanted to go to trial … but the lawyer wanted $100,000 just to get started.”
Most of those who went to trial did so because they thought they’d be acquitted. They wanted the opportunity to challenge the evidence, and to appeal if necessary—both of which you forfeit when you take a plea deal.
“I just knew I would be found innocent,” said H, who rejected a plea deal for 15 years. “Then my attorney said he couldn’t find my main witness.” He is now serving 50 years.
None of the 35 people surveyed had had a private attorney during their case.
“I wanted to go to trial, ’cause the state trumped up the charges against me,” said S. “But the lawyer wanted $100,000 just to get started.” He went to trial with a public defender, and is now serving 60 years.
Filter did eventually find two men who had private attorneys when they were sentenced, which is almost unheard of in a place like South Central. Their experiences were basically the opposite of what was shared by everyone who’d had a public defender.
If he hadn’t been able to afford counsel, D would almost certainly be serving life with parole; that was what the state had originally offered him. His attorney negotiated a plea for 12 years on a lesser charge.
“That $30,000 was money well spent, I’ll be home soon,” D said. “My attorney was a retired judge in my hometown, so he knew all [the prosecution’s] dirty laundry.”
C had originally been offered 60 years. His family paid $120,000 to an attorney who hired a private investigator and got evidence that contradicted the state’s case. He went to trial and was sentenced to eight years.
Like most parts of our so-called justice system, the “trial tax” shows that justice only exists for those who can afford it. And whether people go to trial or take a plea deal, long sentences are usually more about poverty or something subjective in the courts than they are about justice.
Almost 20 years ago, while housed in a different facility, I took a class taught by a former federal prosecutor who’d gotten sick of the system. He told us that every year on January 1, a bunch of prosecutors would put $100 into a pool, and on December 31 whoever had gotten people sentenced to the most years—whether through plea bargains or at trial—would get the pot.
Like his colleagues, he’d thought this was all fun and games until one day a relative of his got into trouble with the law. He realized the prosecutor on the case would be going after the longest possible sentence, not because it was in the interest of justice but because they wanted to win the office pool.
Names have been changed
Image (cropped) via Brazoria County, Texas
