In 1992, Mark Young was sentenced to life in prison for trafficking marijuana. His conviction came from the testimonies of two other convicted marijuana dealers who turned on Young in order to get their own sentences reduced. The two informants, Ernest Montgomery and Claude Atkinson, depicted Young as a marijuana kingpin — the primary broker of a major transaction. Young’s memory is different, though. Recounting his side of the story from the federal penitentiary in Leavenworth, Kansas, Young claims he barely knew Montgomery and Atkinson. Although he admitted to purchasing marijuana from Montgomery, he was a consumer, not a dealer.1
The difference between Young and the two men who testified against him is that Young, at least as he tells the story, was unwilling to throw somebody else under the bus in his own defense. He knew the two men were lying about him, so he risked a jury trial instead of accepting a plea bargain. The only evidence supporting the claim that Young was a major dealer was the testimony of the two men desperately trying to avoid prison themselves. We do not know with certainty who, if anybody, is telling the truth, but the idea that plea bargaining informants are going to offer honest testimonies seems absurd. Yet it was enough to put Mark Young away for life when he was only thirty-eight years old.
This absurdity in the criminal justice system is hardly new. In fact, we might wonder why legal professionals have failed to learn the lesson of trusting information from plea bargains when we have centuries of embarrassing precedent demonstrating the consequences of the practice.
Exactly three hundred years before Mark Young went to trial, Samuel Parris and his wife made an out-of-town trip. Before leaving, they asked their neighbor, Mary Sibley, to look after their daughter Betty and niece Abigail. The two girls, ages nine and eleven, had been suffering for a month from a painful illness that showed no visible symptoms. When Sibley came to tend to the girls, the community had already accepted the only reasonable conclusion for the girls’ affliction: divine punishment in response to unknown witches doing the devil’s work in the Parris home.
Sibley thought she might discover the identity of the witches through traditional English countermagic. On her instructions, the Parris’s slaves baked a cake that included the girls’ urine as an ingredient. The cake was fed to a dog, which would (somehow) draw out the culprit who had bewitched the girls.
The spell failed to expose any witches, but upon learning that magic was conducted in his home, Parris — the community minister — was furious. In his next sermon, he rebuked Mary Sibley — as well as his two slaves, John and Tituba, who had baked the cake on Sibley’s orders — in front of the congregation, and called on her to publicly repent her sins. The congregation approved of Sibley’s apology, but the fear of witches bringing the wrath of God on their community spread rapidly. Under pressure from adults, the young girls listed the names of three witches who had afflicted them: the slave Tituba, as well as two community outcasts who neglected to conform to Puritan standards, Sarah Good and Sarah Osborne. Thus began the infamous Salem witch trials.
The first execution of a witch in Massachusetts occurred in 1680. The woman, accused of witchcraft by a neighbor, never stopped denying her guilt. Most accused witches, though, were never executed. Puritan jurisprudence offered leniency for those who admitted their guilt, repented for having fallen victim to Satan’s temptations, and named those who manipulated them. In Salem, the accused knew that pleading innocent meant likely execution, just as the woman in 1680 learned. Instead, if they wanted to live, the best strategy was to falsely admit guilt and name other witches who had yet to be accused. The result in Salem, predictably, was a cascade of accusations that included more than two hundred members of the community, and resulted in the execution of nineteen people and two dogs.
Less famous is a similar event that took place in New York in 1741. After a series of fires destroyed several prominent buildings — at first accepted as unfortunate but common misfortune — somebody claimed to have seen a slave near the scene of one of the fires. A conspiracy spread that led to a handful of slaves, as well as an outcast white man who made a living fencing stolen goods, being put on trial for attempting to kill their masters, take their wives as concubines, and install a new government. The trials that ensued, as in Salem, allowed mercy for those who admitted their crimes and named other conspirators (though mercy, in this case, might mean being hung, rather than torturously burned at the stake). This time, thirty-four people were executed, still only a small portion of those accused.
After the conspiracy in New York came to an end, an anonymous New Englander wrote a letter to one of the leaders in the trial. In the letter, the author drew parallels to the Salem trials from fifty years prior. “I observe,” the letter read,
that 5 Negros were executed in one day at the Gallows, a favour indeed, for one next day was burnt at the stake, where he impeached several others, & amongst them some whites. Which with the former horrible executions among you upon this occasion puts me in mind of our New England Witch-craft in the year 1692. Which if I don’t mistake New York justly reproached us for, & mockt at our Credulity about; but may it not now be justly retorted, mutato nomine de te fabula narratur [the story applies to you]. … We had near 50 Confessors, who accused multitudes of others, elledging Time & Place, & Various other circumstances to render their Confessions credible, that they had their meetings, form’d confederacies, signe’d the Devils book &c. But I am humbly of Opinion that such Confessions … are not worth a Straw; for many times they are obtain’d by foul means, by force or torment, by Surprise, by flattery, by Distraction, by discontent with their circumstances, through envy that they may bring others into the same condemnation, or in hopes of a longer time to live, or to die an easier death &c. For any body would chuse rather to be hanged than to be burnt.2
The author of the letter was making a point that seems intuitive. New York leaders, as he pointed out, were not only aware of the Salem trials, but they recognized the absurdity of accepting testimony from people motivated by a desire to save themselves. The easily recognizable incentives should cast doubt upon any testimony offered in such a condition.
New York, in its own jurisprudential activity in 1741, failed to heed this insight after criticizing Salem for the same failure fifty years prior. Today, it seems, the justice system is little wiser. Our modern criminal justice system, not unlike Salem in 1692 and New York in 1741, encourages defendants to (often falsely) admit guilt and offer incriminatory testimony against others in exchange for significantly reduced penalties or, thanks to an obscure provision in asset forfeiture law, a portion of the value of the assets seized based on the testimony. We hardly need the lessons of colonial history to recognize the problematic consequences that such a system will engender.
It is well known among judges and lawyers that informants often frame innocent people. As one federal judge admitted:
Criminals are likely to say and do almost anything to get what they want. This willingness to do anything includes not only truthfully spilling the beans on friends and relatives, but also lying, committing perjury, manufacturing evidence, soliciting others to corroborate their lies with more lies, and double-crossing anyone with whom they come into contact, including — and especially — prosecutors.3
Occasionally, a defendant will refuse to falsely admit guilt or incriminate other people. These people face the most severe punishments. Although they are rarely executed today, as was the fate of those who maintained innocence in colonial Salem or New York, their punishment is often no better. When Mark Young was sentenced to life in prison with no possibility of parole, he was the victim of incriminating testimony given by two men he had once purchased marijuana from. According to Young, the testimony made against him in court grossly exaggerated his role in the criminal enterprise — and though his account may deserve some healthy skepticism, it is undeniable that Young, telling his story to a journalist from the visiting room of a federal penitentiary, was not influenced by the same twisted incentives as they people who testified against him.
Unlike the accused recorded in Salem, Young did not yell out, “I’ll tell! I’ll tell!” before weaving whatever tale he thought would best preserve his life. His incarceration ended one of many chains of accusation that continue to cascade until there is either nobody left to accuse or somebody, like Young, refuses to participate in the insanity. But his story, and the stories of the many prisoners who share his fate, might make us wonder why our justice system still has not learned the lessons first exposed in Salem in 1692?