Frontline on plea bargains

Topics: Civil Liberties
18 Jun 2004

From: Ervan Darnell

I just watched part of a Frontline episode [1] on the plea bargaining system. While I'm sure they chose the vignettes to make their point, it confirms my worse fears about a system turned into a prosecution mill rather than anything resembling a justice system.

The system is so stacked in favor of getting people to plea that the whole concept of a trial to examine the facts is disappearing. That bodes ill for much worse problems of corruption and capricious enforcement to come as police know they don't need to bother with actually investigating crimes, just the threat of a prosecution is sufficient.

For instance, poor defendants (who couldn't make bail) waited 5 months in jail for a trial (in the case they mentioned). "the accused shall enjoy the right to a speedy and public trial" seems to be dead without anybody even bothering to blink. With jail time of 5 months, guilty or innocent, the inducement to plea is high.

The prosecution was offering 5-10 years probation for a plea but threatening 5-99 years of jail for a conviction (the threat was real in the sense that those are mandatory sentences for crime if convicted). How much is 5 years jail / 5 years of probation? 10 to 1? With such stacked odds it is no wonder that anyone would take the plea (guilty or not). Even more disturbing is that if the prosecution is willing to offer since a large sentence reduction it suggests they have really weak cases to start with, ones that shouldn't be prosecuted at all, and wouldn't be but for the plea bargain trap.

Public defense attorneys are reduced to do nothing more than rubber stamping the plea arrangement as an ordinary one. They don't want to try the case, so they don't want to examine the evidence in the case, not that they have time to in any case. It further contributes to the prosecution pushing shoddy cases.

In the first case on the show, everyone arrested in the same incident who went to trial (1/3 of them) had their cases dismissed because all the police had was one informant and that informant was not credible. The 2/3 who plea bargained were all still convicted of a crime, no revisiting it. The DA even insisted he knew they were guilty. Such a bald-faced lie speaks volumes about how the system works: maximum conviction rate, facts be damned.

And what was all of this for? Armed robbery? Rape? No, of course not, it was for drug possession, a ridiculous non-crime to start with. I suppose I should appreciate the irony that convicting innocent people is no worse than convicting people who are 'guilty' of a non-crime to start with.

Though it doesn't feed directly into corruption, there is the absurdity of the guaranteed to fail part of probation: probationers are fined more than their disposable income (thus violating their parole), and in addition are cut-off from any aid they were receiving. It's a worse case scenario, but still worth pondering even as a single failure point: (welfare) mothers lose their apartments, then lose their children since they have no home, all because they can't pay probation fees for a crime they never committed, and are then sent to jail for violating their probation terms (of making payments). This is helping society how exactly?

Things I would change:

1) Legalize drugs. It's not just that this is folly as law but the enterprise of prosecuting victimless crimes leads inevitably to shoddy process since there are no accusers to start with.

2) As much as I hate to raise taxes for anything, the right to a lawyer is one of the very few positive rights in the Constitution, and for good reason. We have to pay enough to public defenders to generate something vaguely resembling a defense. The money is all one-sided now. The prosecution has much more financial resources and discretion (though I don't know the numbers). How about balancing some of that money out for starters?

3) The theory of a plea bargain is that the defendant is not merely accepting the punishment, but confessing to the crime. Thus, later evidence is irrelevant. That's broken. The innocent have the same incentive to confess as do the guilty. Extracting confessions under the threat of jail time (as the plea system does) does nothing to resolve the question of guilt or innocence. I'm still thinking about it, but I'm inclined to say that confessions should simply be ignored completely in the process. The same issue applies to interrogations. Verified facts learned during confessions can be used, but the confession itself is all but meaningless. In the case of pleas, accepting a plea bargain is not then a confession per se. Later evidence can then be used. I'm fuzzy on the legal details of whether a habeas appeal can be applied after a plea now. Anybody else know? Regardless, it needs to be tipped more towards an opportunity to revisit falsely coerced pleas.

Indeed, the current system of duress for extracting confessions seems hardly able to pass Constitutional muster (against self incrimination).

4) Prosecutors need to be held liable for bringing weak and known bad cases. How to do this I'm not sure. Thomas suggested something like that all cases be brought to trial and eventually judges would get fed up with such weak cases and get around to strengthening constitutional safeguards, which are now being sidestepped as they never get tested in a real trial, and/or holding prosecutors in contempt.

5) Radical possibility: loser pays for criminal cases. If the government is going to insist on bringing shoddy cases, it should have to compensate defendants for their legal costs in defending themselves. How about pay double so that lawyers have an interest in volunteering to defend indigent clients? No, I don't like the tax consequences, but the idea is to create some incentive to avoid the corruption of bringing weak cases against poor people in the first place. A defense lawyer would volunteer only when the chance of a not guilty verdict is at least 50%. Seems like those cases are the ones where better representation is called for. The problem with is that the prosecutors are not likely as sensitive to the pain as are taxpayers, who can't control much.

[1] http://www.pbs.org/wgbh/pages/frontline/shows/plea/
====================================================
Ervan Darnell
ervan@kelvinist.com http://www.kelvinist.com

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