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Yoffe writes: "This is the age of the plea bargain - and millions of Americans are suffering the consequences."

Shanta Sweatt (left) and her attorney, the public defender Ember Eyster, in Eyster's Nashville office. (photo: Nina Robinson/The Atlantic)
Shanta Sweatt (left) and her attorney, the public defender Ember Eyster, in Eyster's Nashville office. (photo: Nina Robinson/The Atlantic)


Innocence Is Irrelevant

By Emily Yoffe, The Atlantic

09 August 17


This is the age of the plea bargain—and millions of Americans are suffering the consequences.

t had been a long night for Shanta Sweatt. After working a 16-hour shift cleaning the Tennessee Performing Arts Center, in Nashville, and then catching the 11:15 bus to her apartment, she just wanted to take a shower and go to sleep. Instead, she wound up having a fight with the man she refers to as her “so-called boyfriend.” He was a high-school classmate who had recently ended up on the street, so Sweatt had let him move in, under the proviso that he not do drugs in the apartment. Sweatt has a soft spot for people in trouble. Over the years, she had taken in many of her two sons’ friends, one of whom who had been living with them since his early teens.

When Sweatt got home that night, early in November of last year, she realized that her boyfriend had been smoking marijuana, probably in front of the kids. She was furious, words were exchanged, and he left. Sweatt finally crawled into bed after midnight, only to be awakened at about 8:30 in the morning by an insistent knock at the door. She assumed that her boyfriend was coming to get his stuff and get out of her life.

When she opened the door, police officers filled the frame, and more were waiting at her back door. She could see that squad cars were swarming the parking lot. “There were 12 to 15 cars,” she told me. “For us.” An officer asked whether they could enter. As a resident of public housing, she wasn’t sure whether she had the right to say no. (She did.) But she was certain that if she refused them, they would come back. She had nothing to hide, so she let them in. “I didn’t get smart or give them a rough time,” she said. “I cooperated.”

Sweatt, who is black, didn’t know what had led the police to her door. Their report says a complaint had been made about drug dealing from the apartment. After entering, they began systematically searching her apartment. One officer yanked open a junk drawer in her bedroom dresser, and inside he found small baggies of marijuana, containing a total of about 25 grams—a weight equivalent to about six packets of sugar. There was also marijuana paraphernalia in the apartment. When the officer showed the baggies to her, Sweatt immediately knew they had to belong to her boyfriend, who—in addition to having just been smoking in her home—had past drug convictions.

Sweatt, 36 years old, left high school in 11th grade, but she has the kind of knowledge of the law that accrues to observant residents of James A. Cayce Homes, a housing project in East Nashville. “I’m the lease owner,” she told me. “Whatever was there, I would get blamed.” It seemed useless to her to say that the drugs must have belonged to her absent boyfriend, who had a common name and no fixed address. She believed that this would result in the police pinning the crime on her sons. Her 17-year-old was at school, but her 18-year-old, who worked on the cleaning crew with her, was home, along with the friend of his who lived with them. Sweatt told me, “I’ve seen that where I lived: The parents said no, so everyone in the house gets charged. I’m not going to let my children go down for someone else’s mistake. A parent should take ownership of what happens in the house.” So she made a quick and consequential decision. To protect her sons, she told the police that the marijuana belonged to her. “I said it was mine, and me and my homegirls were going on vacation to California. I said we were going to take the marijuana with us—I heard it was legal there—and we were going to smoke for a week or two, then come back to normal life.”

Sweatt told me this two months after her arrest. She and I were sitting in a conference room at the Metropolitan Public Defender’s Office, in downtown Nashville. She was dressed for work in a black sweatshirt, sweatpants, and sneakers. A large ring of keys attached to her belt bespoke her responsibilities as a janitorial supervisor at the arts center, just a few blocks away. I asked how she had come up with such a specific story on the spot. “It’s a dream,” she said. “I heard California is more lively, more fun, than Nashville. The beaches are pretty. The palm trees.” For a moment she looked as if she could actually see the surf. She was born and raised in East Nashville and has spent almost her entire life within the same few square miles. She had no plans to vacation in California, or anywhere else. “All I do is work and take care of my sons,” she said.

The police seemed to believe her story (the arrest warrant noted her upcoming trip) and drove her downtown, where they put her in a holding room. By 1 o’clock that afternoon, her bail had been set at $11,500. To be released, she needed to get $1,150 to a bail bondsman. She contacted a friend, and they each paid half. (“That’s gone,” she says.) She assumed she’d be out in time to get to work that evening, but the money didn’t clear until almost nine, minutes before she was to be sent to jail in shackles. A court date was set for January. Sweatt was facing serious charges with serious consequences, and she was advised to get an attorney.

The fallout began even before the court rendered judgment in her case. Under the rules of the housing agency, her arrest prompted her eviction, which scattered her family. Sweatt moved into a cheap motel, and her sons moved in with her mother, although she still managed to see them every day. She tried to get enough money together to hire what she calls “a regular lawyer,” meaning a private attorney, but failed. So in January she turned to the public defender’s office—a choice that many people in her situation make reluctantly. That’s because of the common misperception, I was told by Dawn Deaner, the head of the office, that public defenders are nothing more than “public pretenders” who are “paid to plead [their clients] guilty.”

Sweatt’s case was assigned to a lawyer named Ember Eyster. At their first meeting, Sweatt felt reassured. As she put it to me, “Ember wears a dress that says, I’m going to take you down!” During their 75-minute discussion, Eyster asked Sweatt what her goals were, and Sweatt responded with a big one: no incarceration. She couldn’t bear the idea of being away from her boys. At Eyster’s request, Sweatt gathered her time sheets from work and dropped them off at Eyster’s office. Eyster planned to use them as evidence that Sweatt was too busy mopping the floors at the arts center day and night to be a drug trafficker.

The next time Eyster and Sweatt saw each other was two weeks later, in court. Sweatt had been charged with a Class D felony, which carried a two-to-12-year prison sentence, and a misdemeanor related to the paraphernalia. Exactly what punishment she would face depended largely on how the district attorney’s office weighed several factors. First, there was her confession. Second, there was the police account of the circumstances of the arrest. Third, there was the fact that she lived within 1,000 feet of an elementary school, which meant it was possible that the charges against her would be “enhanced.” Finally, there was the fact that she already had a criminal history. In years past, she had pleaded guilty to several minor misdemeanors (most for driving with a suspended license) and one felony. The felony conviction resulted from her involvement in a 2001 robbery at a Jack in the Box. As Sweatt tells it, friends had discussed committing a robbery at the restaurant, where she worked, and then surprised her by actually carrying one out. She was arrested and pleaded guilty to a charge of “facilitation,” and in exchange got three years of probation. “I have never gotten into trouble since,” she told me, “except for driving without a license.” She now relies on the bus.

Eyster believed that Sweatt was innocent of the drug charges against her. “This is a hardworking woman who lived in a heavily policed community for 10 years,” she told me. “If she were a drug dealer, she would have already been evicted. She doesn’t have a history of drug use.” But the idea of taking this case to trial was a nonstarter. The best path forward, Eyster decided, was to humanize Sweatt to the prosecutor—hence those time sheets—and then try to negotiate a plea bargain. In exchange for a guilty plea, the prosecutor might not recommend a prison sentence.

The strategy worked. The prosecutor reduced the charge from a felony to a Class A misdemeanor and offered Sweatt a six-month suspended sentence (meaning she wouldn’t have to serve any of it) with no probation. Her paraphernalia charge was dismissed, and her conviction would result in a fine and fees that totaled $1,396.15.

Upon hearing the news, Sweatt embraced Eyster and wept with joy. Then she stood before the judge and pleaded guilty to a crime she says she did not commit.

This is the age of the plea bargain. Most people adjudicated in the criminal-justice system today waive the right to a trial and the host of protections that go along with one, including the right to appeal. Instead, they plead guilty. The vast majority of felony convictions are now the result of plea bargains—some 94 percent at the state level, and some 97 percent at the federal level. Estimates for misdemeanor convictions run even higher. These are astonishing statistics, and they reveal a stark new truth about the American criminal-justice system: Very few cases go to trial. Supreme Court Justice Anthony Kennedy acknowledged this reality in 2012, writing for the majority in Missouri v. Frye, a case that helped establish the right to competent counsel for defendants who are offered a plea bargain. Quoting a law-review article, Kennedy wrote, “ ‘Horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.’ ”


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+8 # laborequalswealth 2017-08-09 09:13
My husband represented a defendant who was offered 12 years, which was preposterous for the crime. Went to trial and lost. He got 44 years. He's 36 years old.

This is a common story. The D.A. grossly overcharges and makes the risk of trial a life sentence.
 
 
+6 # Johnny 2017-08-09 11:14
And poor defendants have to choose between pleading guilty, despite innocence, or sitting in jail indefinitely because unable to post high bail.
 
 
+5 # Femihumanist 2017-08-09 18:50
Angela Davis wrote about this about 40 years ago--and it's still happening. She also said that court-appointed attorneys traded cases with the prosecutors: I'll give you this one and you give me that one.
 
 
0 # Cassandra2012 2017-08-12 20:38
Prosecutors, lawyers and judges are all DIShonorable, apparently!
 

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