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.