Accept (1) you don’t actually have to acknowledge guilt to get the benefit of a plea bargain and (2) the entire paradox is that the punishment is liable to be less, even if you do not acknowledge guilt. So moving on to point two…
Second, in order to protect the innocent, we want a high bar of certainty for conviction at trial. This must mean that a lot of guilty people who go to trial will go free.
I call that a feature, not a bug.
To mitigate that, you offer plea bargains to reward guilty people who acknowledge their guilt and do not try to exploit a trial system designed to protect the innocent.
Except… EXCEPT… the plea bargaining system encourages a lot of innocent people to plead guilty, rather than risk a trial.
Which is what I personally consider a bug, and which should not be a feature of our justice system.
Quite obviously protecting the innocent is the desirable feature.
Letting guilty people go free is not the feature, it is an inevitable concomitant cost that we should try to mitigate if we can.
And if we can mitigate that cost it allows us to raise the standard for evidence at trial to further achieve our aim of protecting the innocent.
It’s fitting that you would be fond of the facile saying, which makes it seem like a simple black-and-white moral issue, rather than a difficult and quantitative ethical judgment. Unless we have no justice system at all, we will always punish some innocent people. Quoting Franklin’s hyperbole is not sufficient. In reality, in addition to trying to make our justice system as reliable as possible in distinguishing between guilt and innocence, we actually have to answer the question of exactly how many guilty people we want to go free in our society for every innocent person we punish. That’s how we set out standard for evidence at trial.
I’m okay with a fair number of guilty people going free to protect the innocent. And I’m appalled by innocent people being pressured into accepting a plea bargain. I see the plea bargain system as inherently corrupt, as i think it’s primary impact is to pressure the innocent, and its secondary impact is to reward the guilty who have leverage.
It’s not a requirement that the accused lie at trial. It is a requirement that the prosecution prove the case. The accused does not have to say anything at all.
All of these assumptions that the accused is guilty! Even though the players in the system often don’t act like it, our system is built on the assumption that those accused are not guilty.
A plea bargain allows an accused person, who has not been convicted, the opportunity to confess (Alfred pleas not withstanding) and wave their right to a trial, usually in with a consideration offered in the terms of sentencing or the crimes that are being confessed to.
A trial allows an accused person to require that the prosecution prove the accused is guilty.
Sophistry. If you know you are guilty, your presence at trial derives from the lie that you are not guilty.
We should not get so carried away with the general principle that the burden of proof is on the prosecution as to imagine that it is a good thing in itself when a guilty person goes free because the prosecution cannot prove their case to within a reasonable doubt. That is part of the justice system, but it is not an instance of justice being done. It is a necessary wrong.
Placing the burden of proof on the prosecution is designed to protect the innocent. If you are guilty and exploiting this mechanism to try to get off because you think the prosecution cannot prove their case, you are lying in your plea of not guilty.
This is a technical legal matter, it’s simply a statement of the burden of proof. It’s not quantum mechanics where there is no real underlying state until it is observed. We can obviously have a conversation about how the legal system deals with hypothetical people who are actually guilty vs innocent as they go through the process.
However it is an accepted legal principle that accused persons cannot be compelled to incriminate themselves or take an ex officio oath. That leaves it up to the prosecution to prove that they are, in fact, guilty.
This is crucial I think. I heard stories from NYC in the 80s where you could plead guilty at arraignment and get some extremely light sentence (days), but if you pleaded not guilty you would be risking 10 to 20 years, as well as pre-trial incarceration. That kind of discrepancy would make almost anyone plead guilty.
Where I practiced, the typical “discount” for pleading guilty was not so great. For misdemeanors, there was essentially no penalty for going to trial, and thus we tried a lot of those cases. For most serious crimes the prosecution would offer some type of plea deal, but nothing drastic.
I had one rape case where we developed a very strong defense. The assigned prosecutor went to her supervisor and suggested they offer a plea to a misdemeanor assault. The supervisor, to her credit, said “no, if we don’t think he did it, we don’t need to ask for a plea to a lesser offense, just drop the charges.”
With trials so ridiculously time-consuming and costly for both sides, there is a bizarre asymptotic tendency for everyone to settle on a plea agreement that equals the likely sentence if guilty at trial multiplied by the probability of conviction for the average accused, regardless of actual guilt, because it’s so costly to do the work to discover whether this specific accused person is guilty.
That applies only across a set of accused people with equal resources, of course.
I’ll reiterate that I think the main source of injustice is how expensive and time-consuming the legal system is. We like to think that the complexity of trials represents desirable thoroughness, but ultimately the amount of justice is going to be related to the total cost in time and money per net unit of truth discovered.
You seem to be hung up on this idea that we can ever have metaphysical certainty re: guilt or innocence. Because even as you allow that the best system might result in some innocent people being convicted (and it’s just a matter of running the numbers and figuring out which system, objectively, yields the optimum results in the balance of innocents convicted versus guilty acquitted), you seem to be oblivious to the impossibility of devising any such scheme. In order to, as you would prefer, come up with some metric for the percentage of people who are innocent but convicted versus guilty but acquitted, we would have to have access to an underlying metaphysical reality.
We have no such access.
Your “test” is one that is incapable of being performed in reality. What you seem to have instead is a strong bias for the status quo, as if asserting the superiority of the status quo against any practical alternative bears no burden of its own. That might be true if you were a government actor arguing a position before the courts: the courts are notoriously permissive when it comes to government applications of the police power. But here you are mistaken: you are not the US government, nor any government, and we are not a court in any meaningful sense.
If it is, as it appears to be, your assertion that plea bargaining is a positive good capable of being run by actual humans in such a way as to be superior to any practical alternative, then you have assumed a burden which you must meet. You have not met it, therefore I do not grant your conclusion.
I might further suggest, as a normative matter, that perhaps we should view the insane cost of a trial as yet another feature, alongside the preference that the innocent should go free alongside the guilty rather than the alternative (that the innocent should be subject to punishment in order to ensure we likewise ensnare the guilty), rather than a bug.
If, for example, it is impractically expensive to take so many people to trial, then perhaps the answer is not a system of plea bargaining that perversely allows the obviously guilty to have less punishment while forcing the innocent to choose between accepting unjust punishment on the one hand or exercising their rights and risking even greater punishment on the others, but rather a system in which we criminalize fewer activities? Like, maybe if we stopped criminalizing drug use, we wouldn’t have so many accused criminals to weed through? Maybe if instead of inventing new ways to criminalize being a woman, we just allowed women the freedom to choose whether to carry a pregnancy to term, we could spend more time prosecuting every actual murder according to a uniform standard whereby we don’t perversely demand that people surrender their fundamental right to a fair trial just to make things a little less burdensome on the state and so get a better deal?
But only the accused knows if they are guilty. If the accused is guilty, then the time to do the right thing would have been before committing the crime.
To me that seems like the whole point of the system.
I guess I’m not exactly sure what you’re arguing. Something about the accused knowing in their heart they’re lying, so it’s wrong that they make the state prove their guilt?
We all think Holmes was guilty. If the state had failed to prove their case, depending on the details of the acquittal, some people might conclude she wasn’t actually guilty, others would think the prosecutor had messed up, or that the defense somehow tricked the jury. However, there is no Big Book of Truth we can consult to find out if she was actually guilty or not, which, of course, leads down the path to the philosophical wanking of can we actually know anything for sure.
I’d actually go so far as to say sometimes even a perfectly sane and rational accused does not know they are guilty, even though they “did the thing” or whatever.
Guilt is not only a question of fact, but of law. And the law can be complicated. Yet another reason to favor demanding the state carry its burden: the accused may in certain instances be incapable of arriving at the necessary legal conclusion, for lack of familiarity with the law.
“Metaphysical certainty” is a straw man. Are suggesting that the technical presumption of innocence implies that there is no underlying real state of guilt or innocence that has any meaning until verdict at a trial? This is totally bizarre. If there is no underlying reality, what is the purpose of a trial? You seem to be suggesting that a trial creates guilt rather than proving it.
You haven’t read anything I’ve written, apparently. I think our justice system is terrible. I just think you are focused on the wrong thing in attacking the concept of plea bargains.
And for what it’s worth, I favor a justice system a long way from the status quo. I think our entire justice system needs to be overhauled because it’s founded on the fiction of free will. There is no moral justification in punishment solely for retribution. Deterrence, sequestration when necessary and above all rehabilitation should be our only objectives.
Now that I can agree with. I think truth and justice are also important, but where justice is not vengeance, but rather that only those guilty undergo sequestration or rehabilitation.
Indeed, I would have seen this as one of the ways Holmes may have been acquitted. There might be incontrovertible proof that she lied, but in order to be criminal fraud she had to lie in certain circumstance, to certain people, and with certain intent.
I agree with all of this, but also think that our system of plea bargaining exacerbates the flaws in our system, and may do more harm than good in any system.
Even the Innocence Project (in its sublime objectivity) estimates that just 1% of those in U.S. prisons are innocent (and it does that on the basis of DNA evidence leading to inmates going free).
Why is that strange? The presumption of innocence, the burden of proof and the reasonable doubt standards are not good things in some abstract sense. Their purpose is to protect people who are actually innocent. But of course due process applies to everyone, because (by definition) at trial we don’t know who is innocent.
But the presumption of innocence does not imply that an underlying true state of guilt or innocence does not exist until the verdict (except in highly technical cases where everybody including the defendant genuinely might not know). If you know that you just murdered someone, the fact that the justice system provisionally presumes you innocent does not make you actually innocent.
From the internal perspective of someone who does know their own guilt, if they go to trial they are exploiting a system designed to protect innocent people to benefit themselves with an unjust outcome. They are absolutely lying and doing something morally wrong.
Plea deals are how you get the bigger criminals, though. They trade a lesser sentence for cooperation ratting out the higher up.
They also just are about making the system more efficient. If you’ve not noticed, the justice system runs quite slowly. Trials take a lot of extra time. Plea deals offer some incentive to the criminal to not waste time on a trial. Merely not having a trial isn’t necessarily a strong enough incentive if the punishment will be sever enough. Reducing the punishment provides more incentive.
Yes, that does screw over the innocent who can be pressured into a plea deal instead of a trial. But banning plead deals wouldn’t mean that some guilty people go free. It would make the slow wheels of justice even slower, because more people would choose to go to trial. And that affects everyone in the system, whether guilty or innocent.
What I wonder is if there are ways to make the system faster. From the outside looking in, it sure looks like the system has a lot of inertia from the analog days. The amount of time people have to do certain steps seems to be higher than I would expect to be necessary.
If there are such options, I think going after them would be a better target than eliminating plea deals (though I wouldn’t be averse to regulating them).