Tuesday, August 11, 2009

Why Plea Bargains are Wrong

I've been wanting to write about the subject of plea bargains, and why I don't like them, for a while. And today seems to be the day.

What, exactly, is a plea bargain? Plea bargains are basically deals that are struck between criminal defendants and prosecutors, in which defendants agree to admit guilt and forgo a jury trial in exchange for accepting a conviction on a lesser charge than the original complaint, or a lesser sentence, or both. The deal then has to be accepted by a judge.

Proponents of plea bargains say that they reduce the need for costly and time-consuming jury trials. This may be true, but it's kind of beside the point. We could also forgo any due process, and just have the police take suspects straight to prison.

Jury trials are important. They are there so we can figure out what happened, and to allow the community to decide the guilt of the defendant.

Plea bargains are constantly abused by prosecutors. If you are arrested, expect the prosecutor to charge you with every crime that they can think of, no matter how unlikely it is to get a conviction. Then they will tell you that if you don't plea, you could be looking at 20 years in prison for a minor crime. Even if you're innocent, and realizs that a conviction is unlikely, you have to weigh the possibility that a jury won't see it that way, and so you are often forced to accept the offer.

Law Professor Stephen Shulhofer puts it this way:

"The major problem with plea bargaining is that it forces the party into a situation where they have to take a guess about what the evidence is, about how strong the case might be, and they have to make that guess against the background of enormously severe penalties if you guess wrong. So defendants, even if they have strong defenses, and even if they are innocent, in fact face enormous pressure to play the odds and to accept a plea. And the more likely they are to be innocent, and the more strong their defenses are, the bigger discount and the bigger benefits the prosecutor will offer them. Eventually at some point it becomes so tempting that it might be irresistible, especially when the consequences of guessing wrong are disastrous.

"So the result is that the system as a whole doesn't do what we count on it to do, which is to sort out the guilty people from the innocent people. It doesn't do that because the guilty people and the innocent people are all faced with the same pressure to plead guilty."

In this system, the prosecutor, who is supposed to be impartial and only looking for the truth, is, instead, playing the role of jury (deciding guilt or innocence) and judge (deciding punishment). This is completely contrary to the principles that our justice system are supposed to embody.

There are those who say that it would be impossible to have jury trials for every offense. This is true. And in fact 90% of all cases are pled, and never go to trial. But most of these cases don't involve plea bargains. They involve people who plead guilty because they know that they have no chance of winning (because they are guilty) and are not being offered any concessions by the prosecutor. I have no problem with these pleas.

But for the cases that are plea-bargained, I say, so what? If we have really criminalized so many things that we cannot afford the time and money to give people jury trials, then maybe we've simply criminalized too many things. Maybe requiring prosecutors to actually prove their cases would make them less likely to arrest people for things like disorderly conduct, or harmless drug possession.

In our system today, we simply arrest for any reason, quickly make a deal, avoid trials where people would actually get a chance to think about the fairness of laws (and the criminalizing of trivial actions), and then move on to the next victim.

For today's prison/industrial complex, this is a great way to keep the assembly line moving, and to put more and more people on probation, which is great because it allows law enforcement to hold the threat of probation revocation (without trial) over the heads of more and more people.

Here's the worst justification of all, from Law professor Bruce Green (on FRONTLINE),

"It… is in some ways fairer to witnesses and prospective jurors. Imagine if in all these cases, the victims and witnesses had to come to court to testify. And in all these cases, people had to leave their jobs in order to serve on juries. That would be very onerous for the public."

Yes, imagine the burden it places on society to actually find out if someone is guilty or not.

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