Crisis and Coercive Pleas

By Thea Johnson   

In the midst of the coronavirus pandemic, activists and advocates have rightly focused their attention on the immediate need to decrease the number of people in jails and prisons.1 Jails and prisons have been ravaged by the  virus and defendants are at real risk of illness or death in those spaces.2 But as the crisis continues and the backlog of criminal cases grows, defendants face additional risks. This essay focuses on one such risk: the heightened risk for coerced and false pleas during the crisis. The vehicle by which the criminal system resolves most criminal cases—the plea bargain —is ripe for abuse and overuse in the best of times. Unfortunately, now is far from the best of times, and as I outline here, there are several reasons why the usual risk factors for coercive plea bargaining are exacerbated during this public health crisis. Furthermore, despite recent efforts to reform the plea system, the pandemic risks entrenching many of the most negative characteristics of plea bargaining even more deeply. Quite simply, the coercive nature of plea bargaining will get worse in a system that is backlogged and unable to hold jury trials for several months. Many states are not counting the delays caused by the coronavirus toward a defendant’s speedy trial clock, which means the cases can remain active for long periods of time and without any risk to the prosecutor that the case will be dismissed for lack of prosecution. For a defendant in this backlogged system, with a case hanging over her head and a speedy trial clock without finality, the plea will be her only option. In such an environment, coercive pleas can and will flourish. This essay proceeds in three parts. Part I of the essay discusses the particular concerns related to coercive plea bargaining during the COVID-19 crisis. Part II offers solutions to these issues and suggests that this moment may provide opportunities for creative problem-solving capable of outlasting the virus. Finally, Part III discusses some silver linings of the crisis for the criminal system at large and the practice of plea bargaining in particular. Like many other recent pieces about the impact of coronavirus on the criminal justice system, this essay addresses the current crisis in the hopes that it will teach us important lessons about the system more broadly. By seeing some of the worst parts of the system exposed through COVID-19, we may be able to better meet future challenges and tackle some of the underlying daily injustices of the modern criminal process.  

110 J. Crim. L. & Criminology Online 1 (2020).