By Kylee Sapp

Shortly before 5 p.m. on Nov. 13, Skylar Kovack Jr. joined the 98 percent of Rockbridge County defendants who accept a plea bargain to resolve criminal charges.

Kovack was charged with two counts of grand larceny with intent to sell. Because he stole more than $200 worth of goods in both cases, the charges were felonies. If convicted on both counts, he faced a minimum of four years in prison.

Thanks to his plea deal, he was sentenced to two years on each count, but with all but 30 days suspended, meaning he had to spend a month in jail. He also had to pay $1,519 in court costs, and he will be on probation for two years once he is released.

“Plea agreements are an essential part of the American justice system,” Chris Billias, the commonwealth’s attorney, said. “If we had tried every case that we had that came through here, we honestly could not have the time … to make it possible to do what we do if we didn’t plead our cases out.”

But some legal scholars worry that plea bargains give too much power to the prosecutor. Anne Coughlin, a law professor at the University of Virginia, called plea bargains “coercive.”

Commonwealth’s Attorney Chris Billias (Rockbridge Report photo)

“You’re sitting there thinking, ‘If I roll the dice and go to trial, I’m going to end up with a very serious penalty and many years in prison, whereas if I relinquish my trial rights, I’m going to go for a much shorter time,’” Coughlin said.

In a plea agreement, the defendant admits guilt, usually in exchange for a break of some kind. In Kovack’s case, he received a reduced jail sentence. Other times, the agreement can include dropped or reduced charges.

Brian Durocher is another defendant who pleaded guilty. He was indicted in the Rockbridge County Circuit Court in May on 10 counts of possession of child pornography and 16 charges of distribution of child pornography.

According to Virginia’s criminal code, the possession charges each carry a minimum of a year in prison, while each distribution charge is punishable by a minimum of five. With no plea deal, Durocher, 42, could have been facing 90 years in prison.

Ultimately, he pleaded guilty to four counts of possession and three of distribution. The other 19 counts were dismissed by the prosecutor. Durocher was sentenced to 35 years in prison, with 20 years suspended. He’s serving his 15-year prison sentence at the Nottoway Correctional Center.

Plea bargains can be advantageous for both sides. Prosecutors don’t have to waste resources on a trial, and they get a guaranteed conviction. Defendants usually get a shorter sentence.

Defendants also sometimes know their sentences in advance because the punishment can be part of the plea agreement.

Occasionally, defendants plead guilty without a negotiated agreement with prosecutors.

Joseph Ryan Bane pleaded guilty in July to evading the police when an officer tried to pull him over for driving 84 mph in a 70-mph zone. But he didn’t get a plea bargain.

At his sentencing in November, Billias pushed for several months of jail time. Ultimately, Bane was sentenced to 12 months in jail, with all but 15 days suspended, meaning he spent slightly more than two weeks in jail. His driver’s license also was suspended for five months.

Billias said there are several factors the prosecution takes into account when negotiating plea bargains. He said he looks at the defendant’s prior record, the facts of the offense and what the community and the victim would want as retribution.

“And so within that range, you sort of figure out where you can be on this thing and what you think is reasonable,” he said.

Coughlin, the UVA law professor, said she believes that prosecutors frequently pile on more charges than necessary to create greater leverage against defendants in the plea bargaining process.

She said she worries that innocent people will plead guilty because the “trial penalty,” or the increased sentence they may get if they are convicted by a jury, is much worse.

Police officers can also lie or exaggerate about the quality of the evidence against a suspect during an interrogation to force a confession, she said. The U.S. Supreme Court has allowed police and prosecutors leeway to extract confessions.

“We are worried that the coercive pressure that the plea-bargaining system presents. Sure, innocent people will confess, and will plead,” Coughlin said. “They’re like, ‘I’ll be better off. At least I won’t go to jail for the rest of my life.’”

But Billias brushed aside such concerns.

“Most of the time the people plead because they know they’ve done wrong, they know that they’re going to get convicted, and they’re just looking to limit the damages,” he said.

Otherwise, Billias said, they can enter an Alford guilty plea, which refers to North Carolina v. Alford, a 1970 U.S. Supreme Court decision. In an Alford plea, the defendant does not admit guilt, but acknowledges that the prosecution has enough evidence to convict.

J.D. King, a law professor at Washington and Lee University, said reforms to the plea bargain system are needed.

“It’s a terrible system,” he said. “To the extent that you’re concerned about efficiency, it’s a great system. To the extent you’re concerned about accuracy or fairness, it is not a very good system.”

Coughlin said one solution would be to make sure defense lawyers had better resources and smaller caseloads. Public defenders and court-appointed lawyers are generally assigned a large number of cases.

“So, you just worry that for defendants, their lawyers are busy, and their lawyer may have an intuition about what the case is worth in terms of the sentence, but maybe they should investigate a little more,” Coughlin said. “And then of course, if they did investigate more, if they did push harder, maybe the case would fold.”

King agreed. He said court-appointed lawyers are paid very little, especially in Virginia. Depending on the type of case, their fees are capped, usually at $1,235 for a felony punishable by more than 20 years in prison, $445 for other felony charges and $158 for misdemeanor cases.

That means court-appointed lawyers quickly reach a point in a case when they’re working for free, he said, and that makes negotiating a plea bargain look like the better option for the lawyer because it’s faster than going to trial.

King, a former public defender in Washington, D.C., said more defense attorneys need to be ready and willing to go to trial for their clients, if only to put pressure on prosecutors to offer a better plea agreement.

“If everybody knows that everything is going to be a plea, there’s no real incentive for the prosecution to [make] a very advantageous offer,” King said.

But he said if prosecutors know that a defense attorney is willing to reject a bad plea deal and go to trial, they might be more likely to offer a better one.

Coughlin said she thinks plea bargains are causing the mass incarceration rates in the United States. The incarceration rate in 2016 was 716 citizens per every 100,000, the highest in the world.

“As you look at our incarceration rates, and you compare them to those of other nations, we’re way higher than everybody else. … And a lot of that is due to the plea bargaining system,” she said. “[Without it], we’d never be able to lock up so many people.”

Published Dec. 13, 2017