Sonoma County has had a dedicated Early Case Resolution (ECR) court since 2009. Felony criminal cases (other than treatment-qualifying nonviolent drug possession offenses) begin in ECR, a courtroom that has the goal of resolving a high percentage of cases as early as possible, in order to reduce court congestion and costs. This week, the Criminal Law section of the Sonoma County Bar Association raised the question of whether the ECR court should continue to exist.

This question was raised the same week as the publication of federal Judge Jed S. Rakoff’s article “Why Innocent People Plead Guilty,” which raises concerns about current practices of plea bargaining. Rakoff is a United States District Judge on senior status for the Southern District of New York. Though Rakoff references federal practice, I believe he raises some of the same concerns for due process and factual accuracy that are raised in local scrutiny of our own ECR court.

First, Rakoff sets forth federal statistics: “In 2013, while 8 percent of all federal criminal charges were dismissed (either because of a mistake in fact or law or because the defendant had decided to cooperate), more than 97 percent of the remainder were resolved through plea bargains, and fewer than 3 percent went to trial.”

A review after the first year of ECR in Sonoma County placed its 2009 case resolution rate at 83 percent. (Jan. 13, 2010 Press Democrat article here.) (This does not imply that the remaining 17% go to trial. The majority are resolved through plea bargains in the trial courts, so they are not counted as early resolutions.) Based on conversation with colleagues who have staffed the ECR courtroom and regularly reviewed the statistical reports, it appears that the resolution rate has varied in the low eighties throughout the existence of ECR.

Since its creation in 2009, there has been a mix of praise for and concern about ECR. In 2011, “Some defense lawyers said they feel pressured to plea before having all evidence before them. And at least one law enforcement source said the emphasis on clearance rates hurts public safety.” (Press Democrat article here.)

On November 20, 2014, the Criminal Law Section of the Sonoma County Bar Association posed these questions: is the pressure to resolve cases early compromising due process? Is there a prosecutorial policy that the ECR offer is the “best offer” and later offers will only increase, never decrease, no matter what information is revealed by litigation or investigation? Are defendants being punished for requesting preliminary hearings?

Rakoff’s observations are applicable to this discussion and his article should be read in its entirety. He first addresses the power imbalance in current plea bargaining, in which prosecutors can readily overpower the defense and force guilty pleas. He describes how prosecutorial charging decisions impact bargaining: “it is the prosecutor, not the judge, who effectively exercises the sentencing power, albeit cloaked as a charging decision.” He describes how the defense is disadvantaged in situations of high pressure to plead early: “the information-deprived defense lawyer, typically within a few days after the arrest, meets with the overconfident prosecutor, who makes clear that, unless the case can be promptly resolved by a plea bargain, he intends to charge the defendant with the most severe offenses he can prove.” He describes how unequal and unfair the process has become: “The Supreme Court’s suggestion that a plea bargain is a fair and voluntary contractual arrangement between two relatively equal parties is a total myth: it is much more like a ‘contract of adhesion’ in which one party can effectively force its will on the other party.”

One obvious impact of pressure to resolve cases early–prior to investigation, thorough discussion, and evidentiary hearing or trial– is that a defendant does not get his or her day in court. The trial system does not have the opportunity to achieve its truth-seeking function. Cases that are mischarged, overcharged, or mitigated may not be identified. There is a tendency toward inflated charges and inflated sentences.

The more alarming concern is the reality that innocent people plead guilty. Every day. In a courtroom near you. Rakoff writes, “possibly the gravest objection of all, the prosecutor-dictated plea bargain system, by creating such inordinate pressures to enter into plea bargains, appears to have led a significant number of defendants to plead guilty to crimes they never actually committed.”

Rakoff tries to quantify the problem. “How prevalent is the phenomenon of innocent people pleading guilty? The few criminologists who have thus far investigated the phenomenon estimate that the overall rate for convicted felons as a whole is between 2 percent and 8 percent. The size of that range suggests the imperfection of the data; but let us suppose that it is even lower, say, no more than 1 percent. When you recall that, of the 2.2 million Americans in prison, over 2 million are there because of plea bargains, we are then talking about an estimated 20,000 persons, or more, who are in prison for crimes to which they pleaded guilty but did not in fact commit.” (I’ve also written previously here about the error rate of the criminal justice system.)

We are not immune from this problem here in Sonoma County. While the rate is unknown, it is undeniable that innocent people are pleading guilty to crimes that they did not commit. Pressure to resolve cases early, under threat of increased punishment, raises the risk of wrongful conviction. In a system with insufficient resources to have a jury trial in every criminal case, this risk of wrongful conviction is balanced against pressures for efficiency. In the balancing of court costs against due process, concerns for fair and factually accurate outcomes should not be overlooked.