The Danger of Plea Deals in Sexual Assault Cases

Favorable plea deals that sidestep terrible facts—especially when it comes to sex abuse crimes—are the rule, not the exception.

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A protest against the confirmation of Brett Kavanaugh in September 2018. (Mobilus In Mobili / Creative Commons)

The following is an excerpt from Punishment Without Trial: Why Plea Bargaining is a Bad Deal by Carissa Byrne Hessick. In it, University of North Carolina law Professor Hessick challenges a criminal justice system that relies on plea bargaining and demonstrates why it is so important to abandon the plea bargaining practice in order to achieve a lasting criminal justice reform.


Multimillionaire Jeffrey Epstein was accused of sexually exploiting dozens of underage girls, but he served only 13 months in jail. His case largely escaped public notice until the Miami Herald published an exposé in the fall of 2018. The paper reported the sordid facts of sexual coercion, as well as a secret plea deal in which Epstein pleaded guilty to two prostitution charges in state court. In return for that guilty plea, the federal government agreed to close its investigation into sex trafficking and other crimes.

As the furor over the story crested, federal law enforcement took action. Epstein was arrested on sex trafficking charges in New York. The FBI raided his Manhattan townhouse, where they found nude pictures of underage girls. Prosecutors claimed that Epstein and his employees brought underage girls to the town house so that Epstein could molest them. Epstein was denied bail and was awaiting trial in federal custody when he committed suicide in August 2019.

Epstein’s story captured the public’s imagination at least in part because of his wealth and personal connections. If not for Epstein’s money and connections, the stories suggested, his victims would have had their day in court and Epstein would have served the lengthy sentences that we impose on sex offenders.

I’m not so sure.

Don’t get me wrong: The criminal justice system treats wealthy people better than those without money. And I have no doubt that knowing powerful people can get you even more favorable treatment.

But favorable plea deals that sidestep terrible facts—especially when it comes to crimes involving sexual abuse—are the rule, not the exception, in the criminal justice system. You don’t have to have millions of dollars or be friends with a president and a prince. You just have to convince a prosecutor that it isn’t worth the time or the effort to try and prove a particular set of facts. 

*****

The envelope was so large, my assistant took it out of my faculty mailbox and kept it at her desk for me to pick up. It contained a document that was more than 130 pages long. The document listed hundreds of cases from Cuyahoga County—the second-largest county in Ohio, which includes the city of Cleveland. The cases were sex crimes that had been pleaded down to far less serious charges, oftentimes having nothing to do with sex. And there were a lot of them.

As I read through the descriptions, I was astounded by what I saw. One defendant had been charged with raping a child, but he had pleaded guilty to “interference of custody” and served only six months in jail. Another defendant was charged with kidnapping and anal rape but pleaded guilty to aggravated assault and attempted abduction. His sentence was three years of probation.

I was surprised by how little punishment these defendants received. Legislatures routinely pass laws that increase punishments for sex crimes. They passed laws that not only kept sex offenders in prison for long periods of time but also restricted where they could live, work and even walk once they were released.

Ohio is no exception when it comes to these laws. It imposes long mandatory minimum sentences on people convicted of rape. Rape carries a mandatory sentence of three years in prison. And other sex offenses carry mandatory minimum penalties of five, 10 or 15 years. Ohio also requires sex offenders to register with the state and imposes residency restrictions on them. Based on these laws, the people of Ohio probably think that anyone who commits a rape or molests a child will spend a long time in jail and will be monitored after release.

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But that isn’t what happens.

The list of cases that I read showed that these harsh laws are routinely circumvented. The list spanned a little over a decade, from 2005 to 2017. Of the hundreds of cases included, fewer than 60 resulted in prison sentences longer than a year. And nearly 250 cases resulted in no jail time whatsoever for defendants: They were sentenced to probation or a fine, or their jail sentences were suspended by the judge at the time of sentencing. And for the many defendants who weren’t pleading guilty to sex crimes, they were not subject to sex offender registration requirements or residency restrictions.

Even more troubling was that people in Ohio almost certainly didn’t know that this was happening. Unless they or someone they knew was involved in one of these cases, they don’t know that prosecutors are willing to bargain serious sex crime charges down to less serious convictions. 

One man in Ohio wanted to change that.

*****

Judge Michael Donnelly has deep concerns about plea bargaining.

As a former prosecutor, Donnelly was both familiar and comfortable with plea bargaining in 2005, when he was elected to serve as a trial court judge in Cuyahoga County, Ohio. At first he thought of plea bargaining the same way that he did when he was a prosecutor: Plea bargaining was a good way for the two sides in a criminal case to negotiate a resolution. 

Once he was on the other side of the bench, Judge Donnelly started to look at plea bargaining differently. He was no longer one of the lawyers engaged in a negotiation. Instead he was the judge, and so he was supposed to be a neutral party in the process. Soon, that process began to concern him.

Donnelly began to realize that prosecutors and defense attorneys were striking deals that left victims and the public in the dark about what actually happened. He noticed that the on-the-record proceedings in which the defendant pleads guilty sometimes made reference to facts that were completely different from those in the off-the-record conference. He realized that some defendants were pleading guilty to entirely different sets of facts or even crimes than what had been discussed beforehand.

Donnelly was especially concerned about this practice in cases involving rape and sexual assault. Based on the difference between what was discussed in the off-the-record conferences and then what was said in the courtroom, he realized that prosecutors were repeatedly letting defendants accused of serious sex crimes plead guilty to charges that had nothing to do with sexual assault even though the prosecutors appeared to think that the defendants actually had committed sex crimes.

The more of these cases Donnelly saw, the more concerned he became: How many sexual assaults were being treated like other, less serious types of crimes? He looked into it, and the result was a long list of cases—the large document that showed up in my mailbox.

Donnelly was horrified when he found these cases. As a judge, he was especially worried that those plea bargains obscured whether the defendants were repeat offenders. If one of these same defendants committed another rape in the future, the next judge would not know that the defendant had committed sex offenses in the past. As a result, the defendant would probably get a lesser sentence than if he were a repeat offender. Or he might be permitted, once again, to plead guilty to a lesser, nonsexual offense.


“Could you imagine being the victim in that sort of case? The defendant sexually assaulted you. And the public record in that case says you were partially to blame.”


Donnelly also worried about the victims in these cases. Some cases had been pleaded down to a particular type of low-level assault that was available only for defendants whose victims were partially at fault for the crime. Those were the sorts of charges that prosecutors might bring against a defendant who was in a bar fight if the victim had started the fight.

“Could you imagine being the victim in that sort of case?” Donnelly asked me. “The defendant sexually assaulted you. And the public record in that case says you were partially to blame.”

As his uneasiness grew, Donnelly changed plea bargaining practices in his own courtroom. He ended all off-the-record conferences for plea bargaining, and he informed lawyers that he wasn’t going to accept pleas for charges that weren’t supported by the facts.

Donnelly took his fight to voters. Ohio, like many states, elects its judges. And so Donnelly ran for a seat on the Supreme Court of Ohio. As part of his campaign, he talked about the need to change plea bargaining in the state.

And he won—Judge Donnelly is now Justice Donnelly. As of January 2019, he sits on the Ohio Supreme Court. And he is now one of the people who will make decisions about court rules.

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About

Carissa Byrne Hessick is the Ransdell Distinguished Professor of Law at the University of North Carolina School of Law, where she also serves as the director of the Prosecutors and Politics Project. Before joining the faculty at UNC, she taught at the law schools of Arizona State, Harvard, and the University of Utah.