In early May 2023, the New York Times reported that a three-judge panel overturned the fraud and conspiracy convictions of Gamal Abdelaziz and John Wilson – two parents involved in the widely publicized Varsity Blues case. Originally charged in 2019, the case included over 50 defendants.
Abdelaziz and Wilson were two of the few defendants who took the risk of going to trial. They were convicted in 2021.
The appeals court decision in a nutshell: the government over-reached. Two key points from the opinion: 1) the jury was not given accurate definitions of property as it applied to admissions slots and 2) the conviction on the conspiracy charge resulted from evidentiary spillover. It was the conspiracy charge that made it possible for the government to introduce other evidence about other defendants.
In 2021, Abdelaziz and Wilson were convicted felons. Now, they are not. The other defendants in the Varsity Blues case were not so lucky. Most accepted a plea deal. Those defendants accepted a plea – but we do not know if they actually believed they did something illegal. Accepting a plea made it possible for them to avoid the risk of receiving a lengthy sentence had they lost at trial. It also made it possible for the prosecution to obtain multiple convictions without ever having to prove their theories or have their evidence scrutinized.
The decision to take a plea is often referred to as the trial penalty – a disadvantaged position that interferes with rational decision making resulting from substantial difference between the sentence available via a pre-trial plea versus the exposure to a lengthy sentence post-trial.
New Attention on a Long-Standing Practice
Thankfully the trial penalty has begun to receive increased attention. A coalition of individuals and organizations who believe the trial penalty is a threat to American society recently launched a new initiative called End the Trial Penalty. Their work is complimented by the work of the newly formed Plea Bargaining Institute – a groundbreaking project that will serve as an information hub for academics, policymakers, advocacy organizations, practitioners and the public. The two groups share a common goal: raise awareness about the problems of plea bargaining and reduce the frequency of coercive practices that lead innocent people to plead guilty.
Among the American public, most people think that those who plead guilty must be guilty. Turns out, it’s not that simple The idea that everyone who accepts a guilty plea is guilty is a widespread misconception.
An abundance of research has demonstrated that the decision to plead guilty is not a free choice: the accused are exposed to various threats, all of which constrain autonomous decision making. Prosecutors and defense attorneys alike admit that innocent people plead guilty. Even judges have questioned the excessive use of plea bargaining as an appropriate means of resolving criminal cases.
Plea Bargains Harm Individuals
Consider the case of Billy Pennington: a man who pled guilty because he thought it was the only possible way to avoid being sentenced to life without parole. Billy remains in prison to this day, despite having filed motions to withdraw his plea. His arguments include ineffective assistance of counsel and the prosecutions reliance on faulty forensic evidence. As if that were not enough, the prosecution’s eyewitness recanted his testimony – admitting he lied when he said he saw Billy at the scene.
Fortunately, Billy’s case is receiving new attention. But even so, he is still an innocent man in prison. Sadly, there are hundreds of thousands of cases like Billy’s that remain hidden from public view.
Exploring Solutions
Experts and scholars have long advanced ideas for ending America’s system of plea bargaining. Back in 1968, Albert Alschuler argued that the plea bargain should be abolished. It seems no one listened, or few agreed.
Thankfully, today’s scholars have persisted with Alschuler’s argument. Clark Neily has articulated how the plea bargain has contributed to mass incarceration, which disproportionally affects the poor and minorities. One solution Neily suggests: create plea integrity units that conduct empirical analyses of guilty pleas to determine rates of false convictions.
Professor Andrew Crespo offers a different approach. He suggests leveraging organizing strategies to bring the criminal legal system to a grinding halt. According to Crespo, if every accused person refuses to plea, the system as we know it will cease to operate – thereby creating an opportunity to introduce new, more just practices.
Plea bargaining is pervasive because our current criminal justice system prioritizes efficiency and finality over accuracy and fairness. According to the ABA, plea bargaining is prevalent because both sides are spared the time and uncertainty of going to trial. In fact, 97% of federal criminal trials are resolved by plea bargains. Prosecutors admit they cannot take 100% of their cases to trial and that they have no problem changing charges to secure pleas.
This is problematic on many levels – but especially so when new evidence emerges after the guilty plea. This is evident in the case of Davontae Sanford. Sanford pled guilty to a murder he didn’t’ commit. Less than 20 days later the real perpetrator confessed.
Sanford wasn’t released immediately but prosecutors eventually dismissed the case. In both Pennington and Sanford’s cases, authorities never reconciled the facts and evidence with the charges. Prosecutors have incredible discretion, and little oversight, with respect to charging decisions.
Damage that Can’t be Undone
Being wrongfully-convicted is a traumatic life experience – one that is not easy to come back from. I imagine Abdelaziz and Wilson were overcome with relief and gratitude when their convictions were overturned. I wonder if that’s enough to remedy the despair, embarrassment, and pain that comes from having one’s reputation destroyed and enduring social, emotional and financial losses.
The government has not decided if it will recharge the pair. Abdelaziz and Wilson have seen first-hand, that it’s not a fair fight – so I’m sure they are also feeling some degree of anxiety about what might happen next.
The pair’s acquittal leaves the Varsity Blues defendants who pled guilty in a tough spot as well. I imagine they are asking questions like, “What would have happened if I went to trial” and “Could I, too, have won on appeal?”.
I’m not sure it’s worth searching for answers to these questions. In a system that values efficiency and finality, there’s not much hope of undoing a guilty plea. Plus, there’s no straightforward legal mechanism for doing so.
But here are two questions that might be worth seeking an answer to:
- Are we willing to accept a system of plea bargaining that leaves us with little certainty the convicted are actually guilty?
- Are we comfortable with a government and a society that knowingly incarcerates innocent people?
While reforming plea bargaining has a long way to go, there’s still some room for hope. It seems that “wrongful guilty pleas” are being recognized as a form of wrongful convictions. I fully support Mr. Neily’s idea of Plea Integrity Units, which could be modeled after Conviction Integrity Units (CIUs) – units that investigate credible evidence of a wrongful conviction. I also appreciate the work of scholars like Marc Howard who is doing groundbreaking work expanding the concept of “wrongfully convicted” through his Making an Exoneree initiative.
Personally, I find it scary to live in society that openly accepts the fact that our criminal legal system is neither fair nor just.
No one should be unjustly punished for crimes they did not commit.