Key Observations

• The US Justice Department however rarely requests to overturn a guilty plea even though there is evidence they probably should reconsider more pleas.
• The US Justice Department drops cases where facts don’t support the indictment prior to a guilty plea based on their own assessment. 
• Pleading guilty is the only sure-fired way to protect family members from the overarching prosecutorial powers of the government.

Even the judge overseeing the case seems reluctant to dismiss it, even though the prosecutor has declined to press charges. While there are multiple legal and political issues surrounding General Flynn’s prosecution, most of the criticism seems to hone in on the fact that he pleaded guilty at least once in open court and therefore he cannot be exonerated. This criticism ignores the reality of the modern criminal justice system, especially the federal court system.

I am not defending General Flynn or any other defendant. I am definitely not disagreeing that Trump wants to help him most likely because Flynn knows incriminating information. Nor am I denying that he received extraordinary treatment. 

The US Justice Department however rarely requests to overturn a guilty plea even though there is evidence they probably should reconsider more pleas. Numerous cases have evidence of agency corruption, entrapment and excessive pressure. Guilty pleas should be overturned where subsequent facts reveal the probability of innocence. The US Justice Department drops cases where facts don’t support the indictment prior to a guilty plea based on their own assessment. 

However, they choose not to do so after a plea.

This causes many defendants to plead guilty to manage the risk to themselves or their families. The fact that Flynn would plead guilty is not unprecedented; almost all defendants do so. Flynn’s case provides an opportunity to address the larger problem of the manipulation of plea bargains, an issue that is far more expansive than what ordinary citizens read in the headlines.

No matter how many prosecutors disagree, there is clearly something wrong when more than ninety percent of defendants plead guilty and millions are incarcerated for non-violent crimes. Incredulously, criminal justice by plea bargain is considered fair justice and should be returned as a cheap knockoff of the real deal.

In the majority of federal cases, the defendant pleads guilty and does not go to trial. Defendants can plead guilty “straight up” without a plea agreement, or they can make a deal with the prosecutor and draft a written contract (a plea agreement) that outlines the terms of the plea. While the right to trial lies at the heart of America’s criminal justice system, actual trials are rare in the United States as nine out of ten federal and state criminal defendants end their cases by pleading guilty. Why is this the case?

In the US plea bargaining system, many federal prosecutors strong arm defendants by offering them shorter prison terms if they plead guilty. If defendants refuse, some federal prosecutors threaten them with sentences that, in the words of Judge John Gleeson of the Eastern District of New York, can be “so excessively severe, they take your breath away” if they go to trial. The average sentence for federal drug offenders convicted after trial was three times higher (16 years) than that received after a guilty plea (5 years and 4 months). 

Judges and prosecutors know that threatening a higher sentences puts enormous pressure on defendants to accept plea agreements. Once a choice, plea agreements have for all intents and purposes become an offer defendants cannot refuse. Human Rights Watch believes the historically low rate of trials reflects an unbalanced and unhealthy criminal justice system. I wholeheartedly agree.

Nearly 80,000 people were defendants in federal criminal cases during 2018, but only 2% went to trial. The overwhelming majority (90%) pleaded guilty instead, while the remaining 8% had their cases dismissed, according to a Pew Research Center analysis of data collected by the federal judiciary. Most defendants who did go to trial were found guilty by either judge or jury. (Defendants can waive their right to a jury trial if they wish.)

Since many judges are former prosecutors, they are comfortable imposing higher sentences on defendants who are bold, reckless or principled enough to refuse a plea deal; such actions are normalized in the system in which they were raised. 

Only 320 out of 79,704 total federal defendants – fewer than 1% – went to trial and were acquitted, according to the Administrative Office of the U.S. Courts. This includes all defendants charged in US district courts with felonies and serious misdemeanors, as well as some defendants charged with petty offenses. It does not include federal defendants whose cases were handled by magistrate judges or defendants in state courts.

Defendants who plead guilty may not actually be guilty at all but simply engaging in practical “risk management.” They may have been “overcharged” with various offenses, even if there are scant facts to support the prosecutor’s allegations. By pleading guilty, they save thousands, or hundreds of thousands, in attorney fees, which most defendants are unable to spend.

Plea bargains may also exonerate family members from harm’s way. This is especially true when, as was the case with General Flynn and his son, family members are included in the investigation. Pleading guilty is the only sure-fired way to protect family members from the overarching prosecutorial powers of the government.

In my dispute with the government over taxes ten years ago, I was provided the option to plead guilty to the misdemeanor of filing late (yes, this is a crime). Especially persuasive was the government’s promise to not prosecute my wife, which would have ruined her career despite her doing nothing wrong. As a father of a 6-year-old, I couldn’t refuse, so I accepted a plea bargain, which stated that I accepted responsibility for a misdemeanor that it was unlikely I’d committed. The Judge allowed me to take full responsibility for a dubious charge.

My favorite President made a mistake by suggesting the Flynn plea bargain was irrefutable evidence of guilt. He knows better, as does the Judge in General Flynn’s case and every defendant who has swallowed their pride and principles to manage risk for the sake of themselves and others.