The Economist Discovers Plea Bargaining

The air is turning cooler. Leaves are turning from green to reddish brown. And plea bargaining sucks and should be discarded.  Autumn has returned.  Just as The New Yorker, in an article on the old Kalief Browder story, discovered that the legal system in the Bronx sucks, The Economist discovered that plea bargaining is fraught with evils.

It does a fairly sound job of listing the most obvious flaws with plea bargaining:

Alas, the process is open to abuse (see article). Prosecutors hold all the cards. If a defence lawyer offers a witness $100 for a false alibi, he is guilty of bribery. But if a prosecutor offers a co-operating witness something far more valuable—the chance to avoid several years in a cell—that is just fine. With so much at stake, snitches sometimes tell prosecutors what they want to hear. One study found that nearly half of the cases in which people have been wrongfully sentenced to death hinged on false testimony by informants, typically criminals who were rewarded with lighter punishments.

Hold the presses. They needed a study to tell them that snitches, typically criminals who were rewarded with lighter punishments, give false testimony?!?  Oh my!

…and state prosecutors are still free to threaten defendants with terrifying punishments if they fail to plead guilty or implicate others. A federal judge recently guessed that thousands of innocent Americans could be stuck behind bars because of coercive plea bargaining.

Well, if a federal judge said so. Okay, stop yer chuckling and cringing. Those who don’t live the joyous existence of a criminal defense lawyer find these things novel and alarming.  It reminds of when Glenn Reynolds, the Instapundit, decided he was going to fix the system by proposing a laundry list of simplistic solutions.  When the error of his ways was pointed out, the InstaSwarm was outraged. Clueless people adore simplistic solutions.

So The Economist proposes to eliminate plea bargaining. Yes, a credible rag challenges Mencken’s admonition.  What else is new?  And because it’s credible, the burden shifts to those of us who suffer the indignity of living the dream to explain why it’s just not that easy.

Consider what life would look like without plea bargaining.  Every defendant would then have to be tried to be convicted, as there would be no incentive to cop out.  Every guilty defendant would then be subject to full freight sentencing, the price that no one in power really expects anyone to pay, which is what allows them to set the MSRP for crime in the stratosphere, tell the groundling during stump speeches about how they’ve saved them from rapists and give headline writers silly numbers for clickbait.

The government would need 100 times the existing number of courtrooms, judges, clerks, court officers, prosecutors and jury pools. And public defenders would get stretched a wee bit thinner.  Even so, kids would sit in jail for years awaiting trial, turning that one year potential sentencing into three, until it was their turn in the well.

And lest anyone have the notion that a gazillion trials would better serve that beloved vagary, justice, there would remain ten gazillion laws criminalizing burping, et seq., testilying for the greater good, and there would still be snitches saying whatever their masters desire so they can enjoy the blessings of the DEA in the conduct of their business.

Alexander Cohen at the Atlas Society ponders the unfairness of it all:

But what is most disturbing is not when prosecutors violate the rules, but what is considered within the rules. As the Economist points out in its editorial:

If a defence lawyer offers a witness $100 for a false alibi, he is guilty of bribery. But if a prosecutor offers a co-operating witness something far more valuable—the chance to avoid several years in a cell—that is just fine.

It’s fine according to current law. And it’s fine if the goal is to let the government imprison anyone it wants. But if the goal is justice, it isn’t fine at all. It’s a system suited to produce slanderous testimony and false convictions.

Aside from noting the obvious error of his thinking, that the goal is “justice,” whereas we know the goal is creating the impression of safety at any cost, he suspects that none of the players in this high drama are unaware that “[I]t’s a system suited to produce slanderous testimony and false convictions.”  Because we’re all a bunch of dopes and mopes.

Of course it is, and it gets worse every year, every day, as teary-eyed advocates call for ever-more laws and ever-harsher penalties because the harms are so terribly, what, harmful? While we get rhetoric and platitudes by guys like AG Eric Holder about the least-hated defendants, his minions continue to charge conspiracy to commit breathing, with the Mideast conflict as relevant conduct.  Wake up, people.

In the meantime, plea bargaining individuals, human beings all, face prosecution and a sentence of life plus Ebola which, cut by a third, gives the defendant a shot at breathing free air once more before he dies.  It sucks a bag of dicks (h/t Ken White), but it beats the slow death penalty.

Sure, we could argue to scrap it all, from the laws criminalizing everything to the system designed to assure conviction because the government would never prosecute anyone who wasn’t guilty, to the electorate who never voted for a politician who didn’t guarantee that there would be a law in the name of every dead child, and maybe then rid ourselves of the blight of plea bargaining.  Or more likely, create a new system reminiscent of the Spanish Inquisition on a bad day.

The system we have, if all the platitudes were true and all the cogs in the wheels that grind the souls of defendants did what they pretend to do, could work.  Not perfectly, but to an extent that would satisfy Nino Scalia.  But in the trenches, we represent one human being at a time, and should our client seek an escape hatch from the insanity of the system as it really works, it would be disastrous to deprive him of the one chance he has to see his children again.

Principle is great. I’m pretty big on it.  But it’s a choice each of us must make for ourselves, whether to risk our lives on an ideal or to cut our losses. To deny defendants that choice is wrong.  As crazy as the system may be now, eliminating plea bargaining would only make it worse.

15 thoughts on “The Economist Discovers Plea Bargaining

  1. John Barleycorn

    The MSRP of crime? Very clever on many levels and very near the rotten core the arrow seeks to strike esteemed one.

    P.S. Many people from low and high individuals, guilds, and politicians alike worship price maintenance and all of its corrosive manifestations as the “price” society has to pay.

    1. william doriss

      I have no idea what you’re saying, Barley, but respect your right to “express” your opinion.
      MSRP = Minimum Sentence Required Prison, we presume?,…and hate these govt-speakeasies.
      Hey Barley, you’re occasionally brilliant, but usually tedious and predictable (unpredictable?)
      Last winter and spring, nobody could touch you. Now Fubar is gainin on you.

      1. John Barleycorn

        No gaining, Fubar is The Man here in the SJ back pages.

        I do not think I can catch up with him either. I am not sure I could even keep him honest if I started straying from the current vice regiments. He is certainly on his game.

        He has it all. I am not sure if everybody always “gets” the glorious viscosity of his cogent but I usually do “get” bits and pieces of it if not all of it and it is most often very, very worthy with just the right touch of mayhem and deviance for my tastes.

        If I had an ounce of his subtle I might be in Hollywood next week talking to Terry Gilliam and not interviewing porn starlets in San Jose for the reality porn series Affirmative Orgy Train: All Aboard Consent Will Leave You Speechless.

        He doesn’t even have to butter up his concise either. He just loads his howitzer and fires. I would not like to be the one hiding in a bunker as he laid waste to field, forest, or mountain range with puns or otherwise. I do hope that when he clicks submit he emits some sort of twisted and sinister laugh or soulful smiling chuckle from the cavernous dungeons and cathedrals of his mind.

        He has definitely raised the bar in the esteemed one’s back yard.

        I have been trying to sucker him into having a handful of drinks with me over lunch while I am out in the Bay Area but thus far he has politely declined in verse.*

        If I do get him out of his lair I will do my best to convince him to stay the course in our leaderless legion and its quest to prod the esteemed one into letting his hair down and raising the flags of anarchists alchemy to adorn the radio broadcast towers at the SJ headquarters.

        P.S. As to MSRP and the hidden dangers and illusions of “price maintence” in the context of the post and beyond, I think it is safe to say there is no one who encounters the halls of “justice” or is within the legal guilds who run the halls of justice who doesn’t have a stake. Q is, who gets to pay the price?

        P.S.S. If you get board this winter lets go steal the Spencer Coat from Wheeze for some shits and grins. I think we should start passing that thing around to members of the legion all of whom should sew a patch on it.

        *Fubar, I don’t send emails to the esteemed very often unless I have intel that the Manhattan Neo-Feminists Freelance Squadron is mobilizing but once upon a time he sent a mean and nasty email to me. He just may have my email somewhere. Who knows, if you asked for it, he might send it to you which I would have no issues with. First three rounds are on me.

  2. A Random Defender

    As much as I die inside every time I walk a client into a plea deal, I am far more horrified of the thought of not even having that option.

  3. Fubar

    And lest anyone have the notion that a gazillion trials would better serve that beloved vagary, justice, there would remain ten gazillion laws criminalizing burping, et seq., …

    From an ambitious prosecutor’s litigation planning memorandum, “How to stop crime by convicting everybody of something”. Apparently disavowed as “an unfortunate technical error”, in a subsequent memorandum vaguely citing “the impact of Russell’s Paradox on the criminal justice system”:

    To convict one and all requires reason:
    First indict everybody for treason.
    Once defense is unnerved,
    Offer fines plus time served
    For loitering in spats out of season.

    1. william doriss

      There once was a man named Fubar
      Who tried and failed the legal bar.
      He turned to writing haiku,
      In hopes of winning a few,
      And wound up poet laureate and a star.

        1. John Barleycorn

          …passing the BAR surely does not mean that one need always pass by the bar.

          Who knows Fubar may be cloaked in more ways than one. Wouldn’t that be fun.

          1. Fubar

            [ Bar? I first passed a bar many years ago. I’ll always recall the trauma of that epic struggle with temptation. But I emerged victorious and got stronger.

            One bar I never passed was Ruby’s at 4th and Brannan, SF, before Ruby and Rudy passed and the yuppies invaded in the ’70s. The yuppies installed new woodwork, served fancy pizza and called it a restaurant. Once a quiet refuge from the waning days of light industrial SF, no-name light and dark on tap, great Rueben sandwiches, sawdust on a creaky floor, wobbly ceiling fans, pool table with a cracked slate, blocks of ice in the urinals. Everything a great bar should be. Alas, that bar has passed. R.I.P.]

            1. SHG Post author

              I had one like that on 18th St. in Manhattan when I was in law school. The Old Towne Bar. Still had swinging doors, like an old saloon. Was a shot and beer place then. It’s still there, but I haven’t been in there since Park Avenue South went from light industrial to low-rent hipster.

            2. John Barleycorn

              Even I would confess stronger is fun when all is amiss, keep staying the course. To stronger it is!

              The esteemed doesn’t hang a bell but if he did I can nearly hear it ring.

              I once owned a bar and still frequent a few. As to the post I must concur having served more than a few just prior, by days or hours, their accepting plea.

              There is a certain sigh that nearly always accompanies a last free drink, for awhile or longer, before an appearance designed to accept a plea.

              After having served a dozen or so too many begrudging toasts to the this or that plea it becomes hard not to notice a certain language, that can go either way, all wrapped in the shrug just before the glasses are raised to clink to the toll that must be paid.

              One surely begins to notice after awhile, that as bad as it is, often it could have been much, much worse.

              It is with odd remorse but I can not say I miss those drinks.

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  5. Rob Robertson

    If you want to see what no plea bargains would look like, take a look at the immigration courts. There, the prosecutors (really called “assistant chief counsels”) can only ask for one thing, and it leads everyone to go to trial. Which is why it takes 3-4 years to get to a final trial date (if you are not in jail) and 6-8 months to get a final trial date (if you are.)

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