Most Americans recognize
that their country has a problem
with mass incarc3rat!0n.
The United States makes up just 5% of the world's population,
but it incarc3rat3s more than 25% of the world's pr!s0ners,
which amounts to over 2 million people
in our ja!1s and pr!s0ns.
Over 426,000 people in ja!1 in the United States today
are being detained pretrial,
which means they are ‼️legally innocent‼️
Many are ja!13d pretrial
simply because
they can't afford money bail,
or because a probation,
par0le,
or 🧊 office, for example,
has placed a hold on their release.
What few appreciate, however,
is the role that
plea bargaining has played
in transforming
our cr!m!nal justice system
into little more
than a c0nvict!0n machine.
Thanks in part to plea bargains,
millions of Americans
have a cr!m!na1 record—
The number of Americans, in fact,
with criminal records today is larger
than the entire U.S. population in 1900.
The common narrative
in popular culture
is that cr!m!na1 justice is meted out
before juries
in courtrooms around the country—
In fact, cr!m!nal trials are rare.
🚨98% of cr!m!nal cases in the federal courts end with a plea bargain,
an informal and unregulated process
by which prosecutors
and defense counsel
negotiate charging and sentencing concessions
in exchange for guilty pleas
*and* waivers of
constitutionally guaranteed
trial rights.
That is why 🚨fewer than 1%🚨
of federal cr!m!nal defendants
were acquitted in 2022.
That is 290 of 71,954 defendants.
An “acquittal”
in that case means a defendant went to trial
and was found “not guilty,”
so you can imagine,
most people do not.
In the olden days, the more primitive days,
t0rtur3 would be employed by state actors
to coerce an accused person into confessing
or pointing the finger at someone else—
⏭️Skip ahead to the 21st century in America,
and the only thing that has changed
is the *mechanism* by which coercive pressure is applied
to induce compliance.
Instead of piling boulders onto the accused,
modern prosecutors pile charges
with the discretionary power
to increase your sentence tenfold
simply for refusing to plead guilty.
And while t0rtur3 is no longer
a permissible method of inducing guilty pleas
in America's cr!m!nal justice system,
just about everything else *is*.
This includes pretrial d3t3ntion for offenses
that *DO NOT* warrant it—
You are being detained before trial
✨simply because✨ you cannot pay your bail.
And for a poor defendant,
their lack of finances becomes intimately intertwined
with their liberty
almost immediately.
Pretrial d3t3nt!on increases a person's likelihood
of pleading guilty by 46%⚠️‼️
Detained people who may have limited knowledge
of the cr!m!nal legal system
and/or who are being detained for the ✨very first time✨
have strong incentives to cut a quick deal
in order to resolve their cases as soon as possible,
*especially* when it involves
lower-stakes
petty offenses.
Being in ja!1 prevents you from working,
making an income,
supporting your family,
taking care of your kids,
your pets,
etcetera.
Pretrial d3tenti0n is
essentially used to coerce you to agree
to whatever you can
to be released as soon as possible
and get back to your life.
When you are factually innocent,
a plea deal gives you certainty
in what can be a long and unpredictable
cr!m!nal legal process,
or sidestep the possibility
of harsher punishment
‼️simply because you want to go to trial.‼️
As one law professor put it,
quote,
“Our existing legal system places the risk of going to trial,”
“and in some cases, even being charged with a cr!m3,”
“so high, that innocence and guilt”
“no longer become the real considerations.”
Nevertheless, the odds of receiving a plea offer that
⛔️includes !ncarc3rat!0n⛔️
are almost 70% greater for B1ack people than wh!te people.
While many Americans may believe
they themselves will never face a cr!m!na1 investigation,
in fact, one in three of you—
of Americans,
all Americans in this country,
will have a cr!m!na1 record at some point in their lives.
The percentage of innocent people
who plead guilty to federal cr!m3s
in federal court because of extraneous factors
that have ‼️nothing to do‼️ with their actual guilt or innocence
is impossible to adequately quantify,
but even more impossible to ignore…
…But today we have the privilege to speak with someone who knows all too well
how these issues impact the lives of real people!!!
Everyone watching or listening to this episode has the very rare
and very priceless opportunity to hear from Hannah Bogan,
a deputy federal public defender
from the Federal Public Defender's office
in Los Angeles.
Their Office made national headlines
earlier this year
for achieving an
unprecedented winning streak
against the Trmp administration
since the DOJ and their U.S. Attorneys
began an aggressive
and politically
motivated campaign
to d3ta!n and prosecute protesters,
immigrants,
and dissidents
in federal court nationwide.
Those are just a few of Hannah Bogan's clients⚖️
She is here today on Rebuttal as my colleague,
my friend,
my confidant,
and one of my very early inspirations as a lawyer in this field🫂