David Tarrell at In the Moment posts about the Gage County, Nebraska Attorney, Randall Ritnour’s new policy: No more plea bargains. From the Omaha World-Herald :
With the shadow of the “Beatrice Six” hanging over his head, Gage County Attorney Randall Ritnour announced Friday that his office would no longer offer or accept plea bargains in felony cases involving adults.
Six people were wrongfully convicted in a 1985 murder case in Beatrice, with four giving detailed statements — apparently false — confessing to their involvement in the brutal attack, rape and murder of a 68-year-old woman. Some later said they cooperated with authorities to avoid being charged with a crime that could send them to the electric chair.
David’s initial reaction, just another instance of prosecutorial grandstanding, gave way to the hope that this new policy was offered in good faith.
The reason I’m not skeptical after reading the article? Doesn’t it seem like a prosecutor who’s willing to speak this frankly deserves at least a chance to demonstrate that his policy is for the benefit of the system rather than his own reelection chances?
More of the explanation from Ritnour was encouraging:
“Our point is to do the right thing, and the right thing is to charge people with the crime they actually committed, not to bounce around making deals.”
The concept is to stop overcharging defendants in order to allow room to plead down. By reducing the top end of the punishment that might otherwise be imposed, innocent defendants may be more inclined to roll the dice and go to trial, thereby reducing the possibility that they will plead guilty to crimes they didn’t commit rather than face the consequences upon a loss for a more serious crime.
All of this has a great deal of superficial appeal. As David correctly notes, Ritnour is not running for office and may well believe that through the good faith application of this plan, the system will regain the integrity that has been lost over the many “tough on crime” years that demanded excessive charges and punishments.
But will good faith and intentions be enough? It’s not likely.
Whenever a policy is based upon something as subjective as “good faith,” it’s too variable to satisfy the different perspectives involved. Will Ritnour’s idea of what to charge a defendant comport with David’s? The “right thing” is a very personal thing. Just ask a staunch Republican under indictment.
And plea bargaining, for all its many flaws and horribly coercive nature, has a purpose. Our legal system lacks the facilities and finances to try most cases, and depends on the vast majority of cases to “go away” via a plea to allow it to work. While this may not necessarily be desirable, it is a reality that government relies upon in budgeting and building. Change the equation by forcing the vast majority of cases to trial and the system can’t withstand the burden.
What happens to the defendants who sit in jail awaiting trial when there are no courtrooms or judges available? How long must delays be before justice is denied? When one side of the equation is based upon something so nebulous as “fairness”, what are the chances that everyone will agree that the elimination of plea bargains are worth it?
This is not to say that prosecutors should adhere to a policy of overcharging defendants, or that politicians should continue to pander to the crowd by ever-increasing the punishment until jaywalking becomes a capital offense. These are ploys that should never happen in a system that seeks internal integrity and intellectual honesty, but since no one except criminal defense lawyers and the occasional crackpot libertarian seem to care or notice, goes unchecked.
Still, it serves as a reminder of how transitory good faith can be. I doubt most prosecutors actively decided to start overcharging one morning, upon realizing that they would have to offer a plea to a defendant and might as well ramp up the charges so they would have a better bargaining position. Even I’m not quite that cynical. But I do believe that they see it as “playing the game,” and should they find that their even-handed approach seems to result in defendants walking away easy, will soon start pumping up the charges, little by little, to even the playing field.
It’s just a matter of perspective. Even with the best of intentions, it’s a lousy system that never seems to be capable of finding level ground.
Plea bargaining: The necessary evil. In a perfect world, every case would be tried, but as you correctly say, the system can not handle trials in every case.
We defense lawyers know that if tomorrow, all of us went into court and demanded trials on all our cases, the system would collapse.
As long as 97% of the cases resolve in pleas, meaning most defense lawyers are entering court with hat-in-hand, we will continue to get what we deserve.
I disagree with your thought that prosecutors do not overcharge as a practice. They absolutely do. I often have conversations with prosecutors where they say something like “I think the case is really a possession case, but I think I can prove possession with intent to distribute.” So they charge something they think they may be able to prove at trial, knowing that the case is solidly something less. Then the offer comes. The defense lawyer knows the prosecutor could prove the enhanced charge, so a plea is worked out to the “lesser” charge.
When I hear the unknowing public scream that there should be “no plea bargains,” I know that the only way that will ever happen is if the collective defense bar (which only exists in my dreams) demands trials in every case.
I believe you’ve misunderstood my point, or perhaps I typed to quickly. I do not believe the prosecutors overcharge as part of a nefarious scheme, in general, but rather that it comes about as a tool of coercive processes, such as plea bargaining and obtaining cooperation, to reach a result that they, from the prosecutorial perspective, seems proper. I hope this helps.
Thank you for trying to help me. Sometimes the big words and subject/verb/noun combinations make it difficult.
I see no difference between “nefarious scheme” and a “tool of coercive process.” The best example of what I am talking about is every single federal indictment. Ever just see a substantive charge? No, that’s why there’s treatises on federal conspiracy law.
In state court in Florida, as I’m sure in NY, we have the principal theory. No, you didn’t actually commit the crime, but you were in town that day, so we’ll charge you with that.
I call it a nefarious scheme, but hey, that’s me.
You’re welcome. I realize that living in Florida does something to dull the senses.
While the justice systems of the world have progressed forward, the US has reverted to trial by ordeal. Even when all recognize the collapse of the case against the defendant, often after several years have been served, the ordeal is applied to preserve the illusion that justice did not fail. Thus those like Lawrencia Bembenek are forced to plead to escape more trials and potential punishment for crimes they did not commit, based solely on paid-for testimony by professional perjurers.
I think it’s just arrogance on the part of a prosecutor’s office to declare that they will not offer or accept any plea bargains. It is based on the notion that they will always get the charge right, that they will never make mistakes, that they will never learn new information through the discovery process that might cause them to change their minds.
I am all for the culture of prosecutor’s offices changing away from the heavy-handed over-charging that goes on now. And I’m all for putting an end to the “race to the courthouse” where prosecutors don’t really care which defendant they nail the hardest as long as they get someone. I think some prosecutors get too power-hungry from prosecutorial discretion that makes them think they’re the puppet masters of the criminal justice system.
But for prosecutors to think that there will never be any room for discussion or negotiation is just more of the same.
Sounds like a stupid New Year’s resolution. Has he put his malpractice carrier on notice?
Making a Federal Case of It
In curious juxtaposition to the recent pronouncement by Gage County, Nebraska Attorney, Randall Ritnour, that he will no longer plea bargain, comes this post from Doug Berman quoting the Iowa City Press Citizen.
Making a Federal Case of It
In curious juxtaposition to the recent pronouncement by Gage County, Nebraska Attorney, Randall Ritnour, that he will no longer plea bargain, comes this post from Doug Berman quoting the Iowa City Press Citizen.