The New York Times reminded its readers recently of the enormous part played by guilty pleas in the criminal justice system – 97 percent of federal cases and 94 percent of state cases are decided by pleas rather than trials. The Times called the statistics “stunning.” The Times and its readers might be even more astounded if they knew how many of those guilty pleas are made without the benefit of a lawyer’s advice. My hunch is that vast numbers plead guilty and are sent to prison without ever consulting an attorney.
The hunch is based on a report I did several years ago – well, a little more than several – 54 years ago, to be exact – on inmates of Iowa’s maximum security penitentiary. There were 1815 inmates in the state’s three main prisons at the time and information was available on 1687 of them.
I found that 329 of these felons were imprisoned after guilty pleas made without the assistance of counsel. All of them had a right to be represented by a lawyer, but had waived it. My article about it ran March 2, 1958.
Why would anyone pass up a constitutional right? Basically, out of ignorance of the value of an attorney. Many of the Iowa offenders figured they had committed an offense, so why bother with a lawyer? It’s a major shortcoming of the legal system that people whose reasoning is this shallow are especially in need of assistance, but waive it.
I was led to examine guilty pleas in Iowa after learning that an Iowa judge admitted to sentencing a young man to life for bank robbery in the mistaken belief that life terms were mandatory for robbing banks. The mistake came to light after I wrote about the life sentence and the judge responded that he had no choice. I then wondered why the accused’s lawyer didn’t pick up on the error when he argued for a lenient sentence for his client, who had robbed the bank on impulse after being jilted by his fiancé. I learned there was no defense lawyer, because, seeing no need for a lawyer, the accused waived his right to have one appointed. That’s when I found, after further digging, that this misguided offender had plenty of company in the Iowa penal system.
Fast forward to March 2012, when the U.S. Supreme Court ruled that the accused have a right to the effective assistance of a lawyer during the plea bargain phase of criminal proceedings. Entering a guilty plea looks to me like a close cousin to a plea bargain, and both require the effective assistance of counsel. The courts aid and abet ignorance when they too readily agree to allow waivers of the right to a lawyer. Given the prevalence of pleas, the press ought to be paying close attention to the extent to which waivers by the unwitting are undermining the right to counsel.