A ‘perfect storm’ of injustice sends too many people to prison. It’s time for a fix. | Opinion

Every policy maker in Kentucky should read reporter Taylor Six’s excellent package on plea bargaining in Kentucky.

It’s a sorry tale of a good idea gone terribly wrong. Plea bargaining started as an attempt to find a quicker outcome for defendants and lawyers, avoiding the time and money of a trial when the outcome, in prosecutors’ opinions, would most likely be the same. By allowing a defendant to plead guilty to lesser charges, it moves cases more quickly through the system than trials by jury, which require time and money and might result in a more severe penalty. The negotiations are held behind closed doors.

The problem is that our justice system has become so reliant on plea deals that our justice system is sadly misnamed. Fewer than 10% of court cases in Lexington or the entire state make it to trial, Six found. Nationally about 97% of trials end in a plea deal, according to the National Association of Criminal Defense Lawyers.

The problem stems from many issues, from too few and poorly paid public defenders to equally understaffed prosecutor’s offices who are eager to clear their dockets on what may seem like slam dunk cases. But as usual, the victims are our most marginalized residents — poor and people of color who lack resources and knowledge about the best way to protect themselves in a system that is supposed to provide justice. Once convicted felons, the people in plea bargained cases are unable to fully participate in society, unable to vote or find good jobs.

COVID-19 also exacerbated the problem because the lack of court time multiplied the courts’ backlogs, Six found. The Kentucky Supreme Court in 2021 ordered Fayette County prosecutors and defense attorneys to begin taking part in mediation if it was ordered by a judge. Since then, Six reported, 50 of 74 mediated felony cases in Fayette County resulted in a guilty plea. Of those, 48 were murder cases.

The stakes are high and sometimes fatal: The National Registry of Exonerations reports 20% of cases reviewed since 1989 involved people pleading guilty to crimes they didn’t commit. The Innocence Project, an organization that seeks to prove wrongful convictions, reported that out of 375 DNA exoneration cases since 1989, 11% of defendants pleaded guilty to crimes they didn’t commit.

In Kentucky, there have been 23 exonerations since 1989, according to the Innocence Project.

Experts say that while plea bargains started as a good idea, they have resulted in a system that gives prosecutors far more leverage than defense teams.

The problems with plea deals may not be intentional or pernicious. But leaving the problem unfixed is as pernicious as crime.

Six interviewed University of Louisville law professor and civil rights attorney Dan Canon, who called the current criminal justice system “drive-thru-style justice.”

“It’s designed for speed, and it’s designed to sort of create as many convictions as possible in the shortest amount of time as possible,” he told The Herald-Leader.

“No one has time to do anything,” Canon said. “No one has time to think, is the system a good idea?”

In his book, “Pleading Out: How Plea Bargaining Creates a Permanent Criminal Class,” Canon critiques the criminal legal system and claims it is an unjust system which creates a massive underclass of people who are otherwise banished from participating in society.

He makes an interesting point: “As it is right now, since everybody sort of goes into the thing with the expectation that everybody’s going to plead, then police officers don’t really care about crossing the t’s and dotting their i’s. And prosecutors don’t really care about the sort of evidentiary truth of the matter. When they have a case in front of them, they just want to get it off their desk as quickly as they can.”

Author Molly Walker Wilson called our system a “perfect storm of under-representation for an underserved population.”

Helping the underserved isn’t big with the tough on crime crowd currently governing our legislature. But we would call on leaders like Gov. Andy Beshear and Sen. Whitney Westerfield, R- Crofton, chair of the Senate Judiciary Committee, to closely examine Kentucky’s issues in this regard, and try to come up with solutions.

Lawmakers already know Kentucky has one of the highest incarceration rates in the country. According to the Kentucky Center on Economic Policy, “Kentucky’s total correctional population in 2022 was 95,479 people, including 32,351 incarcerated people and another 63,128 who were on supervision (probation or parole). If Kentucky’s correctional population was counted as a city it would be the state’s third largest, behind only Louisville and Lexington.”

But they aren’t doing much about it. Since a criminal justice reform bill in 2011, the General Assembly has enacted 76 laws increasing incarceration and only 14 reducing it, according to a new KyPolicy analysis.

Too many plea bargains certainly aren’t helping.

Solutions to this problem, unfortunately, involve huge amounts of money needed to hire more public defenders and prosecutors so there is less pressure to move cases so quickly through the system. Kentucky has many needs that require more funding. But we also have many smart people in this state who can certainly think about more creative ways to deal with a problem that threatens to make our justice system anything but just.

This story was originally published November 17, 2023 at 7:51 AM.