Roughly 15 parents have thus far elected not to plead guilty in the “college admissions scandal.”


While federal prosecutors have increased their pressure campaign against actress Lori Loughlin and her fashion designer husband Mossimo Giannulli, along with nine other parents, by adding bribery charges to the original criminal charges, these unscrupulous prosecutorial tactics have failed to coerce guilty pleas from them.


And the stand firm strategy by the defense attorneys in this sordid affair is beginning to bear fruit.  Newly discovered emails between a representative of the University of Southern California and the famous couple reveal that the university had an aggressive, solicitous campaign to secure the attendance of the pair’s eldest daughter at Southern Cal. The new emails, reflecting the university’s practice of intermingling admissions conversations with fund raising conversations, supports Loughlin/Giannulli’s defense that they believed the money they gave to the university were donations and not bribes as prosecutors are alleging.


Right to Fair Trial and Presumption of Innocence


Under our constitutional scheme, anyone charged with a crime enjoys the right to a fair trial and a pretrial presumption of innocence. At trial, the government bears the burden of proving every element of the crime charged against the defendant beyond a reasonable doubt. Because these rights are so embedded in our adversarial criminal justice system, the government in theory cannot compel a defendant to either confess or provide guilt against him/herself via a guilty plea.


But that is not the reality.


Coerced Plea Deals Infest Criminal Justice System


Writing in an August 8, 2019 article for NBC News’s Think section, titled “Prisons Are Packed Because Prosecutors Are Coercing Plea Deals,” Clark Neily, Vice President of Criminal Justice for the Cato Institute, made this disturbing observation:


“America is the most prosperous country in the history of the world. We excel at innovation and mass production—and nowhere is that more true today than our criminal justice system, which features a streamlined process for transforming millions of suspects into convicted criminals quickly, efficiently and without the hassle of a constitutionally prescribed jury trial.


“It’s called coercive plea bargaining, and it’s the secret sauce that helps us maintain the world’s highest incarceration rate.”


As reflected in the college admissions scandal cases, federal prosecutors have carved out their own perception of justice. They believe a criminal indictment removes the presumption of innocence and replaces it with an assumption of guilt. They resort to any means necessary to either extort or procure a guilty plea to conserve not only the resources needed to prosecute at a trial but also to enhance their professional resumes with convictions.


Prosecutors Threaten Harsh Sentences to Compel Guilty Pleas


That is precisely what is taking place against the parents who have not entered guilty pleas in the college admissions scandal cases. Prosecutors in the case do not believe these parents are constitutionally entitled to a punishment that fits the crime. They have informed the parents and their attorneys that they will seek, and most certainly will secure, a much harsher sentence if they insist on exercising their right to a trial.


There is nothing fair about this carrot/stick approach. It is a vicious, vindictive, and underhanded strategy employed each day in this country by prosecutors who do not respect the right to a fair trial. Every year, thousands of low-profile defendants, who lack the power and finances to confront these aggressive prosecutorial tactics, enter guilty pleas to crimes they did not commit.  They do this not because they are in fact guilty, but to avoid the risk of harsh, unreasonable sentences.


Prosecutors Believe Demand for Trial Justifies Increased Sentence


In 2013, Human Rights Watch had this to say about the federal guilty plea process:


“Prosecutors nonetheless believe a defendant’s insistence on going to trial is a perfectly legitimate reason to pursue an increased sentence—even one that is wholly disproportionate to the underlying offense. As a former US Attorney told us: ‘We weren’t trained to think about the lowest sentence that serves the goals of punishment.’


“Even prosecutors who try to achieve fair sentences through plea bargains acknowledge that the quest for fairness ends if the defendant refuses to plead. Prosecutors also insist they are not ‘punishing’ defendants with higher sentences when they refuse to plead guilty, but rather ‘rewarding’ defendants who, by pleading, spare them the expenditure of time and resources needed for a trial. From the perspective of the defendant looking at a significant trial penalty, this is no distinction.


“Once they have made a threat during plea negotiations, prosecutors believe they must follow through with it if the defendant goes to trial, both because a defendant who refuses to plead deserves “no mercy,” and because they want to be sure future defendants take their threats seriously. They think they will lose credibility if they permit defendants to reap the same sentencing “concessions” after a trial as they had been offered if they pled. Asked if they thought these much higher post-trial sentences are just, prosecutors dodged the question.”


Criminal Justice System Has Become Factory of Guilty Pleas


In 2012, the Supreme Court in Missouri v. Fyre acknowledged that the nation’s criminal justice system has become a system of guilty pleas, not a system of trials as envisioned by the Founding Fathers. This acknowledgement came nearly 35 years after the Court in Bordenkircher v. Hayes recognized and legitimized the practice currently being employed by prosecutors in the college admissions scandal case—that federal prosecutors can threaten to bring additional charges against a defendant who refuses to plead guilty so long as the charges are valid.


The inherent problem in this threatening inducement process is that thousands of innocent defendants plead guilty because they know a trial by jury that produces guilt (no matter how wrongfully) will result in a harsher sentence. The National Registry of Exonerations reports that 15 percent of all exonerees pled guilty to the wrongful charges brought against them. The full weight and threats of the criminal justice system crushed their will to fight for their innocence.


Threat of Harsh Sentences Induce Wrongful Plea Agreements


The Supreme Court in Brady v. United States said that federal prosecutors can offer a reduced sentence as an incentive to plead guilty and ruled in North Carolina v. Alford that courts could accept guilty pleas without admissions of guilt. Inevitably, the system that uses the “carrot “of a reduced sentence versus the “stick” of a harsh sentence or threat of additional charges will actually coerce some innocent defendants to plead guilty.


In 2013, a New York federal district court in United States v. Kupa observed that federal prosecutors can threaten defendants refusing to plead guilty with “sentences so excessively severe they take your breath away.”


That in a nutshell is the shameless system that the parents in the college admissions scandal have experienced a rough introduction—the prospect of years in prison after a trial for the same conduct others have served only a few days following guilty pleas.


There is a major difference between a guilty plea entered in exchange for a leniency and a guilty plea coerced through threats. It had always been a fundamental principle, woven into the fabric of American criminal justice since the 1800s when plea bargaining was born, that a guilt admission should be rewarded with leniency. It’s called acceptance of responsibility. But a federal prosecutor threatening a harsher sentence and more charges unless a defendant pleads guilty is analogous to a father standing over a child with a raised belt demanding the truth or else.


In a 2017 Nevada Law Journal article, Texas A&M law professor Cynthia Alkon discussed “hard bargaining” in the plea bargaining process:


“Is it time for the [Supreme] Court to place more meaningful limits on prosecutorial hard bargaining behavior? Prosecutorial hard bargaining tactics contribute to what is often a coercive plea-bargaining atmosphere. The coercive atmosphere in plea bargaining can lead innocent defendants to plead guilty. Pressure to plead guilty can also lead defendants to fail to litigate issues, such as search and seizure motions. Finally, the coercive atmosphere in plea bargaining can lead to defendants accepting bad deals as they try to avoid potentially much higher sentences after trial. These problems do not exist only due to prosecutorial hard bargaining; however, prosecutorial hard bargaining contributes to these problems.”


The conduct of the federal prosecutors in the college admissions scandal cases exemplify why it has become not only necessary but essential that the Supreme Court to reign in “prosecutorial hard bargaining behavior” in the plea-bargaining process. Threats of harsher sentences, the piling on of additional charges, and demands of “take it or leave it” should not have a seat at the table in our criminal justice system.


The federal plea-bargaining system, we believe, is long out of control and in need of serious reform.