The Center for the Administration of Criminal Law at New York University Law School held its 11th Annual conference, with a directed focus on a hot and controversial issue:
Plea Bargaining: Reforming An (Un)Necessary Evil?
They were kind enough to invite me to be on their first panel, at the time knowing that only Third Circuit Judge Stephanos Bibas would be the moderator. As it later developed, it became apparent to me that participation would not be a good use of my time and attention, and so I subsequently begged off.
It wasn’t that I didn’t have much to say on the issue. I did. And have spoken out about it in the past. But an academic conference is somewhat different than a think tank, and to argue the merits of plea bargaining with a federal judge is a lot more fun than with theorists and activists unconstrained by facts or logic.
As a lawyer, I speak the nasty language of what really happens as opposed to the sanitary words of empirical studies or the disingenuous words of someone pitching their special flavor of magic bullet solutions designed to mislead and appeal to the least knowledgeable, but most passionate, souls. This holds no interest for me. It’s not real. A discussion confined only by the politeness of not pointing out that it’s sheer fantasy holds no interest.
As a lawyer, I get no points for giving a presentation or being on a panel. They don’t pay me. The CLE credits aren’t needed. In fact, it sucks away time that could be used more productively. While academics list their presentations on the Curriculum Vitae, a 72-page document that creates the appearance of scholarly cred by invitation and repetition, if not substance, nobody cares whether a lawyer sat on a panel. So why do it?
To teach. To think. To help. To contribute to the ideas that may forge change and improve the system and the lives of the people affected by the system. It’s not about money. It’s not about fame or glory. It’s to help make things better for others. If not that, then it’s a waste of time.
But does anybody really want the help of an old trench lawyer, particularly one who is inadequately concerned for the sensibilities of others?
Many academics stake out scholarly turf, and then pursue it with single-minded ferociousness. After all, it’s hard to distinguish oneself as a legal scholar, there being a great many around, sitting on chairs with other people’s names on them, chewing and rechewing a limited number of legal issues until there’s nothing left to masticate. If you can’t come up with something to compel others to invite you to their conferences, how will the Academy appreciate your singular vision?
But a lawyer? We face the full, ugly, nasty, dirty panoply of problems. We don’t have the luxury of a pet issue. We have the responsibility of dealing with people’s lives.
The short take on the conference is that the “biggest” problem with plea bargaining, and the concomitant dearth of jury trials, is caused by the trial tax (or plea discount, according to which side of the courtroom you sit on). So the easy-peasy answer is reduce the trial tax and innocent people will fight and guilty people will go to trial to test the propriety of their accusations. Right?
Not so fast. Even if the trial tax could somehow be eliminated entirely, such that the sentence on a plea offer would constrain the sentence after trial, perhaps under the theory that if it was sufficient to serve the legitimate purposes of sentence before trial, then it should be sufficient afterward, since the only intervening event was the exercise of a constitutional right. And no one should be penalized for exercising a constitutional right.
Except it wouldn’t happen that way. For defendants with retained counsel, trials involve a cost many don’t want to pay just to get an almost-certain outcome. If you’re going to be convicted, then at least it shouldn’t bankrupt you in the process.
For others, the stress of defending is more than they can take. Many defendants are full of fight at the outset, but a few months later are desperate to end the nightmare and will do anything, take anything, just to be done with it.
Others still are more concerned about how it affects their family, their children, than about themselves. The pressure of prosecution permeates a family’s world, and a defendant may well decide that the welfare of spouse and children, friends and business associates, shouldn’t be sacrificed for their hubris.
And then there are the people who come to grips with the fact that they’re guilty, they did it and the prosecution can prove it twelve different ways. Remember the dirty little secret that few want to talk about, that most defendants are guilty, even if not quite so guilty as the government claims.
Even worse, some aren’t guilty, at least in their minds, but the evidence suggests otherwise and they’re going to get crushed by their former best friends, now snitches, and their recorded conversations that are sufficiently vague that a federal agent can take to the witness stand to explain, in excruciatingly twisted language, how venal they are and bring them into disgrace and disrepute.
But who wants to hear about all those unpleasant complications at a conference? Who wants to know what’s really said in tiny, smelly, airless attorney meeting rooms where tough guys cry when they realize they won’t be there when their newborn daughter graduates college or marries?
And even if anyone did, what’s a trench lawyer to say? We might call a Menckian solution “interesting” or “curious,” because those are the moderated words of the intellectual elites, but we use words like “bullshit” and “clueless.” Such vulgar but clear and comprehensible language is unappreciated. I remember with some bemusement when I uttered a curse during a panel at Cato, and the entire room gasped. Had no one there ever heard the word before?
Unsurprisingly, the judge on the panel, Joseph Godwin, SDWV, and I laughed about it. Judge Godwin, like me, sharpened his teeth in the real world. We understood each other, even if no one else in the room did or cared to. Whether it taught anyone anything, however, is unlikely. So why bother?