Playing the Odds

There’s a common saying in the criminal defense world:  “the federal government can indict a ham sandwich,” and Travis’s defense attorney was disinterested in taking this case to trial.  The defense attorney shared a few stats with Travis, and then we began doing additional research to get the full picture.

The statistics are terrifying when you are a defendant but surely confidence inspiring as a prosecutor:  trials are very rare in federal criminal court, and when cases are taken to trial most end in conviction.  And trial is very expensive for the defendant.  I’m sure this creates pressure to never be a prosecuting attorney with one of the few cases which is lost in court; especially when you’re prosecuting the first case of a newly composed task force.

Research from 2019 indicated 90% of federal criminal defendants took plea agreements and only 2% went to trial.  Of the 2% that went to trial, 83% were convicted.  Put another way:  fewer than 1% of total federal defendants go to trial and win their case.

Doesn’t that make you wonder how a system can be so “flawless”?  What makes the justice system so error free and accurate?  Or is it an issue of once you’re in the system there’s no way out?  Is it the leveraging of tight deadlines and copious amounts of fear and trauma which paralyze defendants to weigh the pros and cons choosing the lesser of two evils:  a plea agreement with lesser charges and lighter sentences? Is it charge-stacking, legislatively ordered mandatory-minimum sentences, and threats to investigate and indict friends or family members that leverages so many plea agreements?  Being used as a tool to cover up prosecutorial misconduct?  Want to know more about this or have a better understanding? Start here.

The National Registry of Exonerations indicates 20% of defendants plead guilty to crimes they did not commit. In the fiscal year 2019, the average cost of incarceration fee (COIF) was $35,347 per year.  That’s just for one inmate, and in 2019 there were 1,430,800 prisoners. So with 20% of those prisoners being there innocently, that equals $10,114,897,520 spent on incarcerating innocent individuals in 2019 alone.  Tax payer money well spent?

And then I began exploring the justice system in other countries and discovered 2/3 of the world no longer have a death penalty.  Not only does the U.S. have a death penalty, it continues to incarcerate more and more individuals.  The US incarcerates roughly 25% of the world’s total prison population, and in 2022 was incarcerating 629 people per 100,000—the highest rate in the world.  And tax payers, YOU, are supporting the daily confinement of a population where 20% of them do not deserve to be there.  Is this truly justice?  Is it time for reform?

What about the judges who determine the sentences in all of these cases?  Are they oblivious to these numbers and believe they are rendering sentences in full faith of a fair, just, and flawless system with investigations conducted through integrity and honorable prosecutorial conduct?

These stats surely explain why the defense attorney didn’t even entertain or ask to see the evidence Travis had showing his innocence.  But there were even more odds being thrown Travis’s way to consider.  His attorney told Travis he was 98% sure he would be able to convince the judge to sentence Travis to probation.  98% chance of probation or less than 1% chance of winning at trial only to be sentenced to 5 years in jail rather than 2?  It seemed as though there was only one logical thing to do, take a plea agreement.

It is noteworthy to mention, as part of Travis’s preparation for sentencing he participated in rehabilitation efforts as suggested by the probation office.  One of those efforts included completing a psychological evaluation and attending follow up sessions.  Travis’s attorney gave him a referral to the psychologist he worked with.  This psychologist was in communication with the defense attorney throughout the court proceeding process.  The psychologist mentioned to Travis during one of their follow up sessions that his attorney believed the case was 50-50 and could go either way—probation or prison.  Yet this defense attorney had told Travis he was 98% confident he could convince the judge to a sentence of probation.  Some people sell snakeskin oil and somehow go to bed feeling good about themselves at night.

But back to the story in real time…Travis had only seven days to consider his options and try to come to terms with the reality he was facing and had only a couple days to discuss his case with his attorney.  The trauma was extensive, denial may even have still been playing a role, and he needed a little more time to wrap his head around this life changing decision.  He would be a felon, have many rights stripped from him, and accept responsibility for something he hadn’t done.  This was no small decision to make, yet there was the constant pressure of time ticking away.  And sleep was a distant memory while living on adrenal, fear, and stress which is certainly not a recipe for clear mindedness.

It was apparent there was no way out, it was a matter of determining which path to choose.  Grand Jury had been scheduled for 6/13 and it was 6/1.  He had a little time to think, didn’t he?  Taking time and not readily moving forward with a plea agreement meant further moves by the prosecution in this game of chess.  Moves which would bring another round of Mr. & Mrs. Smith, cat-and-mouse, back into our home and our relationship.

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Peace & Love,

Janessa