Early in my career with the Brazoria County Adult Probation Department, I was invited to be the luncheon speaker at a meeting of defense lawyers. I stated my perspective that the concept of justice is not merely a lofty philosophical idea; it can and should be realized in practice in the disposition of criminal cases. Following my presentation, a seasoned lawyer in attendance said to me, “When I meet with a prosecutor on behalf of a client, I am not seeking justice; I want to make a deal.” The deal is called a plea bargain, and in what follows, I will attempt to provide an accurate portrayal of its use in our courts when trying misdemeanor and felony criminal cases.
Every year in the Texas courts hearing criminal cases, 95 percent or more of the many thousands of felony and misdemeanor cases are adjudicated in what is called a bench trial. The prosecutor informs the court of the offer, defense counsel affirms agreement, the defendant states he/she is satisfied with their legal representation, an understanding and voluntary acceptance of the deal. Th e judge accepts the deal, and the defendant’s day in court is over in a few minutes. The critically important question: Is this the best we can do?
There is much variation in the use of plea bargains in Texas criminal courts. District attorneys and judges are elected officials who are obliged to be mindful of the power of public opinion. Every year, however, numerous felony cases in which victims suffered severe psychological trauma, serious bodily injury and death are resolved in plea bargains in which offenders are placed on probation instead of being sentenced to prison.
The following four cases of plea bargains in which offenders were granted probation for a serious felony crime are drawn from my experience.
Injury to a child: A single mother, 25, holds her 2-year-old son under scalding water because he refuses to stop crying. The boy suffers significant burns on his body. The mother was ordered to obtain psychological counseling and attend parenting classes. Child Protective Services was given custody of the child.
Involuntary manslaughter: A man in his early 20s with no criminal history, while driving intoxicated, crashes into a car, causing the death of a young female college student. He was ordered to pay funeral expenses and several thousand dollars to the college for scholarships. Further, he must complete a DWI education class and attend a Victim Impact Panel.
Sexual assault: A man in his early 40s coerces his two teenage stepdaughters to have sex with him. He was ordered to obtain therapy for sex offenders from a psychiatrist and have medical treatment resulting in chemical castration.
Indecency with a child by contact: A 70-year-old grandfather touches the breasts and genitals of his 12-year-old granddaughter. The family did not want the child exposed to the trauma of a trial and requested the prosecutor recommend a probated sentence. The offender was ordered to register as a sex offender for the rest of his life and not to be alone with minors without the presence of another adult. He must pay for counseling for the child and attend counseling for sex offenders.
Such cases are not unique to Brazoria County. The fact similar cases frequently occur in the 11 administrative judicial regions of the state is verified by my many discussions with most of the directors of adult probation departments in the state. We are obliged, therefore, to pose three questions.
First, given the gravity of their crimes, were these offenders really punished? Second, given the harm inflicted on the victims and their survivors, should they be satisfied justice was done? Third, was public safety adequately protected in these cases? Some of the toughest choices prosecutors have to make involve felony cases where they are convinced of the defendant’s guilt but agree to recommend probation because, for example, the veracity of the only witness is problematic, the co-defendant agrees to testify against his friend in exchange for a recommendation of probation, or the evidence is circumstantial and will not persuade a jury of finding beyond a reasonable doubt.
Alcohol-related crimes, specifically, DWI first and second, occupy a large portion of the dockets of county courts at law. A few of these cases involve a victim, and no one with any sense will deny the offenders were a danger to themselves and others. A high percentage of these cases are plea-bargained for a probated sentence. The judges who decide these sentences usually require a number of specific conditions that, hopefully, will deter the offenders from committing a third, or felony, DWI. These conditions include the loss of driver’s license, attending a Victim Impact Panel, completing a DWI education class, some unpaid community service work, attending AA meetings and urinalysis. Some counties have DWI courts and the programs they involve are proving to be very successful. Judges are taking a risk making these decisions because some of these offenders reoffend and are arrested for a felony DWI and thus go for trial in a district court with a possibility of a prison sentence.
The use of plea bargains enables the judges to achieve finality of cases in a massive system that is clogged with cases awaiting adjudication. The need to achieve finality is a source of some real problems. Judges appoint counsel for a large number of indigent defendants who have been in custody for several weeks or months due to a lack of funds to pay a bail bondsman. I have observed hundreds of bench trials, and I know the majority of lawyers appointed to represent them provide the same high-quality representation as if they were being paid their usual fee.
I have also known a few lawyers who earned much or most of their income from court appointments. Occasionally, they received two or three appointments in the morning and attempted to settle them by noon. After a few minutes of discussion with the prosecutor, they uncritically agreed to a plea deal and then urged their client, about whom they knew next to nothing, to accept the offer. In my position as director of the Adult Probation Department for the county, I was involved in some of these cases and had some lively discussions with a few of the lawyers. On more than one occasion, a prosecutor and counsel for the defense accused me of practicing law without a license. I had the confidence of the judges to whom I was accountable and was doing what they expected of me. Discussions with directors of other departments in the state confirmed some of the court-appointed lawyers in their jurisdiction provide the same shoddy representation of indigent clients.
Too many defendants, particularly indigent ones who want to be released from jail, are essentially bullied into accepting a plea bargain, much of which they do not really understand. Though unintentional on the part of prosecutors and defense lawyers, many are set up to fail because they cannot comply with some of the specific conditions in an order of probation. All of this occurs in the rush to move cases, and judges cannot eliminate these problems. The best they can do is to attempt to make sure the defendants understand the plea bargain and can comply with all of the conditions of their release. Judges do not like to reset cases because it delays the adjudication. If they do the above, there will be more cases they recognize as unfair and unrealistic, and they will instruct the prosecutor and defense lawyer to create a new deal.
Many years ago, I had to tell one of my employees, “You not make the decision to sentence a person to jail or prison.” The same is true of prosecutors. They make recommendations and the judges make the decisions. In addition to discussions with prosecutors and judges in Brazoria County, I attended criminal justice conferences where prosecutors and judges were in attendance. I listened to many of them speak about living with the heavy weight of their responsibilities to repair the harm inflicted on victims and families, to provide opportunities for offenders to make positive changes in their lives and to protect the safety of their communities. Doing justice is the cardinal obligation of judges, and in all criminal cases involving a bench trial, they have the burden of deciding the content of that majestic concept. Without the use of plea bargains, our system of criminal justice in Texas would grind to a halt.
Returning to my original question, is this the best we can do? My answer is yes.