A little over a year ago, Luke Scardigno, a criminal defense lawyer in Queens, took on the case of a 22-year-old man busted for possession of an illegal handgun. Just out of prison for a robbery, the man's case didn't look good. Scardigno, who has spent three decades as a defense attorney in Queens, thought there might have been an issue with the legitimacy of the search. His client had been frisked while buying a sandwich at a bodega by cops acting on a vague 911-call description of a black man in a hoodie. (The client had nothing to do with the incident that precipitated the 911 call). Scardigno used that information to help negotiate a plea deal with the Queens DA, which his client ultimately decided to take before a grand jury could indict him. The DA's offer: a class D felony charge and a recommended five years of prison time.

But on the day he was supposed to appear in court for his plea, Scardigno's client didn't show, claiming that he was ill in jail. Because there was no legitimate proof of an illness, though, and because the grand jury was in its final day of session, the case moved forward and the young man was indicted.

After that, the conditions of the deal with the DA left the young man with only two options: go to trial and risk even more jail time in a case that would be difficult to win, or plead guilty with the judge directly—but only to a higher class C felony charge with a guaranteed seven year sentence. (He would also give up the right to appeal the legitimacy of the search). And post-indictment, the Queens DA would not re-negotiate a new or lower plea deal.

"He wound up with two extra years," says Scardigno, who was replaced as counsel after a judge ruled against his attempt to challenge the legitimacy of the search post-indictment, but cooperated with the new attorney on the case to bring him up to speed, "because he didn't take the [first] deal."

Scardigno declined to name his client out of concern for the man's privacy and to avoid in any way coloring or compromising potential future interactions with the criminal justice system.

This situation isn't unique. Instead, it was a standard application of the Queens DA's "No Plea Policy," which mandates that defendants who wish to negotiate a plea on a felony must do so prior to a grand jury indictment. Those who refuse to plead at this stage, reject a plea, or, like Scardigno's client, miss the opportunity to accept a plea, lose their chance to negotiate with prosecutors. Once an indictment comes down, they face a choice: go to trial or plead to the judge on the top count of their indictment. Sentencing in any such plea is constrained by guidelines and mandatory minimums.

(Kevin Ryan, the director of communications for the Queens DA, told Gothamist that without Scardigno's client's name, he could not comment on the case. Ryan said that a defendant missing a court appearance would not directly trigger the "No Plea" policy, as the policy only indicates that plea negotiations must occur before an indictment.)

To many hearing of it for the first time, this policy sounds draconian. That defendants cannot definitively know what charges they'd be taken to trial for and may feel pressure to forego their day in court seems like a denial of due process. And the policy is, historically, a practice geared toward balancing efficiency with justice, rather than justice alone.

Few defenders have openly taken issue with the policy over the past 20 years, though, which the experts Gothamist spoke to say likely stems from some flexibility in the policy and the Queens DA's reputation for fairness. Yet much of the policy's perceived efficacy in dispensing timely justice depends on good faith between defenders and prosecutors. And occasionally things go wrong, leaving clients who may have legitimately deserved the initial plea or better to take something worse down the line with no hope for a legal reprieve.

The Queens DA's office instituted the "No Plea" policy almost 21 years ago as part of an effort to address a backlog of felony cases going to trial in Queens Supreme Court. According to Queens Chief Assistant DA John Ryan, it was inspired by the perception that the office rarely changed plea deal later in a case.

"It clogged up the caseload," Ryan said. "There was no incentive for the defendant to consider whatever plea offer we were going to give them [throughout] because that plea offer would be there until the last possible moment."

At the time, programs that barred plea bargaining after a felony indictment existed in the Bronx and nearby Nassau County. But Queens developed a much more comprehensive and (to defenders) accommodative policy, which has outlived those programs and is today unique within the New York area. In fact, no one Gothamist spoke to for this story was aware of a comparable program anywhere in the country.

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Rikers Island (Spencer Platt/Getty Images)

The new policy made an immediate impact. Within a week, 85 percent of all defenders were engaging in early plea talks on behalf of their clients—although not all were taking the deals. Today, that figure is 95 percent, and the majority of felony cases in Queens are resolved through some sort of pre-indictment plea.

The Queens policy is, broadly speaking, in keeping with a national trend towards incentivizing earlier pleas. Often, prosecutors push early resolutions by putting a timer on deals, then decreasing their deals as a case moves forward. The goal of this is to resolve cases quickly.

"In a perfect world, all the legal and factual issues are vetted before seeking an indictment," says Jonathan Lenzner, an attorney in Washington, D.C. and former prosecutor in the Manhattan DA's office.

But that's not always the case.

"Requiring people to plead guilty without a lawyer having an adequate opportunity to investigate the case, maybe without having access to complete discovery, is a great cause of injustice," said defense attorney Norman Reimer, who has practiced in NYC and serves as executive director of the National Association of Criminal Defense Lawyers.

For cases that are clear cut, the terms of an early plea deal will generally be uncontroversial. But for those that are not, the prospect of a harsher sentence after trial forces many to give up their right to a day in court, even in some cases when defendants know they are innocent or believe that the charges they face are overblown.

"Uniformly, with some exceptions, the penalty is so great for anyone who dares to put their faith in a jury trial," says Reimer, "that people are induced to plead guilty even if they may not be."

A similar or greater number may plead to sentences higher than they should have received due to practices like "charge stacking," in which prosecutors shepherd defendants towards their desired deals by over-charging them. This can apply intense pressure on a defense attorney to take the best deal they can get for their clients—and they often do.

Reimer acknowledges that there are cases for which an early plea may be logical for the defense. But he maintains that any policy that consistently pushes people to plead with potentially limited information runs counter to justice.

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Prosecutors at the Queens DA's office acknowledge general concerns about early plea processes. However, they believe their system effectively mitigates them because in order to engage in a plea deal defendants must agree to hit pause on the prescribed pace of a trial and move into a negotiating room with the DA. Within two weeks, the prosecution is supposed to present the defense with an opening plea offer, which can then be negotiated for as long as the DA feels there are substantive issues to discuss or new information on the case continues to emerge.

"There's a lot of misconception about it," says Queens Senior Executive Assistant DA Jim Quinn. "People think we make an offer and you take it or leave it and if you don't take it we put it in a grand jury. But what we've really done is taken most of the plea negotiations that normally occur post-indictment and we've put them pre-indictment."

Under this system, Queens prosecutors say, there's ample time for investigation and information sharing. (In extenuating circumstances, such as the discovery of key new evidence, the DA's office may make an exception to its policy and offer a plea post-indictment as well.) Lenzner adds that freezing a trial can benefit the defense as, he argues, a prosecutor's case often gets weaker with time, due to witnesses moving, backing out, or forgetting things; evidence getting lost; or cases slipping down on current or later prosecutors' priority lists. Ryan also notes that these early pleas can help bring people into alternative sentencing programs faster.

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(iStockPhoto)

Scardigno still cautions that, even with this time, if a client remains stuck in jail or an attorney lacks the experience or resources to mount an investigation, the defense may be hamstrung in negotiations.

"And they have so much time now that if you do reject [their plea offer]," he says, "my experience is you are going to get indicted on the more serious cases … because they don't have to present 30 or 40 cases a week anymore because most people are signing the waiver."

Still, while there was some resistance before the policy came into place, there hasn't been much pushback on the ground in the two decades since. That seems to be because Scardigno and other defenders mostly trust that the DA's office will share information and negotiate in good faith. (Elements of the current system were actually created in consultation with local defenders.)

Scardigno actually sees the system as a boon to cases where a defender has access to a client and the resources to do a full investigation, especially if the facts don't look great for a trial.

In the majority of cases, the DA's use of early pleas seems to do exactly what it was implemented for: effectively balance efficiency and justice. Quinn notes that the Queens Supreme Court is down to 30 cases a week versus 140 before the policy came online. This success, he says, has led the mayor's office to encourage other counties to explore similar strategies; Bronx, Brooklyn, and Manhattan prosecutors, he adds, periodically drop by the Queens courthouse to take notes.

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Even if this system does mostly work, though, its smooth functioning depends on continued trust and good faith between defenders and prosecutors. Ryan notes that these early plea talks naturally hinge for prosecutors upon their trust of a given defense attorney and their informed opinion of the plausibility of a defender's narrative of a case or take on evidence.

"When they come in and say, 'You've got the wrong guy,' we take that seriously," says Ryan. "If you've got a guy or a gal saying, 'My guy didn't do it and you can't prove it,' that's different."

In Ryan's view, without that trust, the system would have fallen apart 15 years ago due to a defense revolt and subsequent court overload. He also believes that not every constituency could or should institute such a system—every county has to follow its own needs and limits.

"The level of trust that may exist is sometimes unique to a jurisdiction—to the individuals," says Reimer, who recalls that in his time in New York he did not feel he could trust in the goodwill of prosecutors so freely as early plea negotiations might require. And even where trust exists, there's always the risk it can be subverted by a less than ethical prosecutor (and there are some nasty ones in the city) intruding upon that system.

"I don't think that any good system of justice, from the standpoint of accused people, is well-served if it only depends on the trust between the defense and the prosecution bar," adds Reimer in a swipe at the policy's raison d'être. "The overall purpose of justice to me isn't about how fast we get it done. It's about how good we get it done. A system of justice should itself provide rules, fairness, and safeguards that make sure everyone has a zealous, effective defense."

Reversing the policy probably wouldn't achieve much, save to rapidly re-escalate the load on the Queens Supreme Court, creating pressures to rush some cases while others languish. That almost guaranteed side effect would represent another, likely more systemic and damaging set of problems.

Mark Hay is a Brooklyn-based freelance writer most frequently featured at VICE, where he covers crime and a number of other topics.

Editor's Note: In the course of reporting this story, Gothamist reached out to the Legal Aid Society for comment on the Queens DA's "no plea" policy. Legal Aid did not respond to this original request. After publication, attorneys from Legal Aid reached out to Gothamist to express their concerns about the story. We have published their letter to the editor below:

Mark Hay’s examination of the Queens District Attorney’s Office’s "no plea" policy grossly misinterprets the policy’s real intent and disparate impact on poor clients unable to post bail. The policy has nothing to do with trust and everything to do with the district attorney’s office’s motive to leverage its immense power to coerce poor clients into waiving their speedy trial and pretrial release rights. In enforcing its no-plea policy, the DA’s office often forces poor clients to forgo possible early release and risk months in jail on felony cases that would normally end with reduced charges and only days or weeks of jail (or no jail at all). There is nothing the defense can do to force a Queens prosecutor to offer a plea or evaluate the reliability of evidence in a timely manner as proscribed by law and practiced in other district attorneys' offices in New York City.

Make no mistake: this is a coercive policy that—at times—pressures poor clients into hasty pleas without the benefit of informed decision-making for lack of pretrial discovery evidence. Queens assistant district attorneys rely on the policy to lessen their arrest intake work load and increase plea numbers on the front end, and to unduly punish clients who wish to exercise their rights. We at the Legal Aid Society—as defenders of low-income and working-class clients—see the daily inequality of this policy and believe it is not a symbol of fairness we want for our city’s criminal justice system. The policy is not driven by trust. It's driven by the force of the DA’s office self-interest at the expense of individual justice.

-The Legal Aid Society, Criminal Defense Practice, Queens County