Plea Bargaining Usurping the Role of the People in Criminal Justice

In US v. Stevenson, District Judge Goodwin wrote this opinion. In it, he makes the case that the prevalence of plea bargaining rather than going to trial transfers the function of criminal adjudication from the public arena to the prosecutor’s office in the name of expediency and at the cost of a more effective criminal justice system:

In this NY Times article in 2012, they note that:

That article was aboutLafler v. Cooper, where SCOTUS expanded requirements for effective counsel to pre-trial activity when offering advice on accepting pleas.

It seems that Judge Goodwin has begun building a habit of rejecting plea deals. For debate is whether the prevalence of plea deals harms justice, the balance of power between the prosecutor’s office and criminal defendants, and whether the standard for accepting plea deals should be greater than mere expedience.

“…I should give great weight to the people’s interest in participating in their criminal justice system…”

Speaking of this justice system that the people are so interested in: Is this the same justice system that the people’s elected officials are always underfunding? Is this the same justice system that has to fight people to show up for Jury Duty?

I know absolutely nothing about law, but that part did make me scratch my head.

I’m sure it varies depending on the jurisdiction. WHere I practiced criminal law, we had a professional and fairly reasonable prosecutor’s office. Appropriate deals could usually be made. We also had a fair number of trials when a trial was necessary.

It’s important to realize that in many cases, there really isn’t a dispute justifying a trial. Sometimes guilt is simply not contestable, and the best you can do is make your best argument at sentencing. Other cases involve simply a dispute over the severity of the offense, where a plea bargain also makes sense.

I agree the current system puts a lot of power in the hands of the prosecutor, and that can be a problem. (a very serious problem in some instances). Not sure what the solution is.

A big problem is that if you go on to trial you can get a massively higher sentence than if you plea bargain. Plea bargain for murder: life, go to trial: risk the death penalty–or a much more often situation for a lot of crimes: misdemeanor if you accept plea bargain, felony if you go to trial.

And for the public: we see criminals arrested for murder with a lengthy criminal history, some of them quite violent offenses–and we wonder why aren’t these criminals still locked up? And it’s because they got off with light plea bargain sentences.

**For debate is whether the prevalence of plea deals harms justice, the balance of power between the prosecutor’s office and criminal defendants, and whether the standard for accepting plea deals should be greater than mere expedience.

Pleas are not in and of themselves bad. Some people genuinely want to plead guilty. For some people, a trial is a waste of resources. But a 96% rate, which is the US average, is a sign of a deeply sick and broken system.

In a typical case, the plea offer is 25% or less of the maximum sentence a person would face at trial. Very often the disparity is much larger. Think about how confident you will have to be that your innocence will be proven (or that a jury will understand that you committed the lesser crime but not the greater one) in order to reject that offer. You’d have to be pretty confident. Far more confident than the vagaries of human juries and human justice warrant.

The reason for that disparity between the plea offer and the maximum sentence is that prosecutors hold all the bargaining power. They determine what charges are brought, and in a typical jurisdiction’s criminal code it is easy to lard on the charges. Suppose a teenager and his two friends break into an abandoned house at night to smoke some hand-rolled cigarettes. You could charge that as criminal trespass–the real offense. Or you could charge it as criminal trespass plus burglary, possession of burglar’s tools, conspiracy, gang activity, possession of drug paraphenalia, contributing to the delinquency of a minor, etc. etc. etc.

The solution is not to ban plea bargains. The solution is to elect prosecutors who believe in appropriate charging. They should charge a case such that, if it goes to trial, the result would be just. They should not charge a case where the result at trial might be 10x what they would offer as a fair sentence in a plea bargain. Lots more people would go to trial (though there will still be a ton of incentives not to, including pre-trial detention, costs and fees imposed even on people who use defenders, sentencing reductions for guilty pleas, etc.). But that would be a good thing. It would cost more money. But it would save money on the whole, since we would substantially reduce the number of people serving longer sentences than they deserved.

Philadelphia is trying out appropriate charging instead of overcharging. We’ll see how it goes. I predict their crime rate will not skyrocket and their criminal justice costs will decrease overall.

Setting aside the matter than I have no say at all in who becomes the chief prosecutor in my town, how would voters ever judge such a thing? First, people don’t tend to pay much attention to local elections like that, but far more importantly, I can’t imagine how even an involved citizen could acquire the information to make an informed decision on whether a candidate for district attorney is outstanding on the issue of appropriate charging, or absolutely terrible on it. This seems like the sort of thing that some defense attorneys and judges might know from experience or word-of-mouth, but literally nobody else would have a clue.

I agree about not banning plea bargains. But the proposed solution seems impossible.

In every state, you either vote for a prosecutor or you vote for someone who appoints a prosecutor. And in the vast majority of states, you vote for the prosecutor directly.

And you need look no further than Philadelphia, PA to see how its done. Organizations campaigned for a DA who would issue charging guidelines of the kind I have described. That candidate won. He issued those guidelines. They are in effect now. We’ll see how they work!

Edit-- Link to the DA’s guidelines:

Yep, except for where I live. (Yes, that’s the sound of me grinding an axe.)

One point and one question on these points: first, the process of charging/pleading cases isn’t like a voting record for a legislator, in which the public can generally understand if a politician is pro- or con-tax hikes, pro- or con-environmental regulations, etc. With a voting record, you can see how an incumbent walks the talk or not. I’m still not sure how the public can evaluate how their local prosecutor is doing on this issue.

Second, if those regulations are promising, is there any reason why they can’t be made law?

We have far too many laws and arrest far too many people. Plea deals have their place, but should be used in more like 15% of cases, not 97%. I have no sympathy for arguments that the courts will grind to a halt if everyone demands their right to a jury trial. We have more than enough judges, lawyers and juries to offer speedy trials to all murderers, rapists, thieves, arsonists and assaulters. If that means we can’t get around to trying people who possess too much plant matter, or who feed people without a permit, then I guess we’ll have to let them go. I have no regrets about that.

Courts need to learn how to triage just like hospitals. And police officers and prosecutors should be judged on the quality of their work, not the quantity. You put a rapist behind bars? Good for you, you made the world a better place, here’s a raise. You issued 15 $150 fines for drug paraphernalia? Big whoop. What’s next, Officer Friendly, are you going to raid a child’s lemonade stand?

I mean…*someone *elected is ultimately responsible. But I take your point. Sometimes the appointment is too many levels removed from someone responsible to the electorate.

Again, Philadelphia is instructive here. During the DA election, advocacy groups marshaled statistics about what the current DA was doing. They also ensured that every candidate had to answer questions about this subject. The people of the City then elected the person that had the best answers.

Lots of people went into that election saying there was no way someone opposed by the police union who had never been a prosecutor could get elected by talking about relatively obscure issues like overcharging. They were wrong.

And ultimately the public will be able to judge this DA too, since he has released the charging memo publicly. Across the country, interest groups are pushing DAs to do the same thing so the public can assess the charging guidelines. Florida just passed an enormous criminal justice data bill that will assemble exactly this kind of information.

This is a hard question. Some of them can be made law. Some of them cannot, either because they are inherently discretionary or because there are separation of powers and immunity problems.

In Judge Stephenson’s case, my take on reading his writing is that he would like to see harsher punishment for the folks involved, not lesser. He questions why if the charge is X the plea is 1/10x, where the people have an interest in the crime being punished at X. That’s not my thinking, but the result gets to a similar place looking negatively towards plea bargaining.

I don’t think pleas should be banned, but I think in a lot of instances they can be coercive because of the power asymmetry. The threat is so great that game theory says you take the plea and the result is the power shifting that Judge Stephenson decries. I do agree that the reason for offering a plea shouldn’t be simply expedience or cost savings. That means that the punishment for a crime becomes a function of the economic factors associated.

I looked at the guidelines in Philadelphia and in general they look good, though I may be opposed to diversionary programs for DUI. But while plea bargains make sense in a pragmatic way, when I think about the rationale for them none seem particularly persuasive. If society as a whole has determined that certain actions are crimes, why should the judiciary circumvent that process? If the mass incarceration of large numbers of people is bad (which I think it is), then the solution should be to change the law decriminalizing these low priority things - or make the penalty a fine rather than carry the potential of prison.

The rationale that resources are limited, facilities, etc. - Either have less laws, or build more prisons and hire more people because if a law is on the books undercutting it with systemic plea bargaining is bad and invites abuse and disparate treatment.

We do have a say, either directly or indirectly, on who the prosecutor is. It is either an elected position, or it is appointed by someone who is.

Now, people who do pay attention to local elections, which is a larger group than you may think, do consider prosecutors based on their conviction record. The people running for prosecutor brag about how many people they have put behind bars, or how few cases they have lost. They talk about how the other guy isn’t as “tough on crime” as they are.

And that usually is a positive, and wins them votes.

Obviously, it is pretty hard to actually tell how many of those people that he put behind bars were innocent, and how many people that he didn’t were actually guilty.

The number I would be most interested in would be how many cases that he has won that have been overturned based on the defendant actually being innocent. Any number greater than 0 is problematic, IMHO. Obviously, if they have ever had a an issue with prosecutorial misconduct or anything like that is a very big flag for me, not so much for some others. Putting innocent people in jail and using unethical tricks to do so is just being a very zealous prosecutor, in their eyes.

Harsh sentences should not be wielded as a punishment for exercising your rights to a trial by your peers. Personally, I think we get rid of plea deals altogether, at the very least for felonies (though when I am god-king, for misdemeanors too), and have every person that is charged with a crime go through a trial, though they could have the choice of bench or jury.

Plea deals means that the guilty who know they are guilty get lighter sentences than the wrongfully convicted innocents, or those who don’t contest the facts of their actions, but of the criminality of them (stuff like self defense cases). That doesn’t seem to be an effective justice system to me.

When does “expediency” become “necessity”? How comfortable are you with trials taking literally decades to even by scheduled because EVERY case goes to trial? The problem is caused by both the judiciary and the legislature. Even just repealing marijuana laws would take a lot of pressure off both the courts and the prisons (but it would cut into private prison profits…too bad, so sad, take your legal sweatshops and torture chambers and GTFO).

As is, it takes quite a while for stuff to go to trial, during which time, the accused is often sitting in jail and being treated as if he were already convicted. Which is, of course, another tool for the prosecutor. They can say, “This’ll be 6 months before it goes to trial, so you’ll sit in jail awaiting those six months, but if you want to plea now and get probation, then you’ll get out today.” Sweet deal, even if you are completely innocent and would be able to prove that at trial.

I don’t know that we really need so many people going through our court systems as is, and if it becomes “harder” to prosecute someone, then prosecutors may stop looking for things to prosecute people for.

I’d be for a constitutional amendment to update the “speedy trials” one. No plea deals, and if you are not convicted within a year of being charged, the charges are dropped. Something to that sort of effect, anyway.

Accused don’t have to prove anything at trial. The burden of proof is on the government, unless the accused puts forth an affirmative defense such as self-defense. In those cases, the accused just has to set forth a prima facia case that the particular defense applies and the burden shifts back to the government to prove that the particular defense does not apply beyond a reasonable doubt.

You can’t square that circle (no plea deals but all trials have to occur within a year of initial charges) unless you are also willing to pay a much heavier State/local/federal tax bill for the tens of thousands of new state and federal judges, prosecutors, crime lab technicians, and public defenders that would have to be hired to take virtually every case to trial. DNA results and drug lab results can take many months to get back, and that is without the need for testing in every drug case or other case in which DNA samples are taken because plea deals obviate the need for the testing.

In poorer areas such as Louisiana, the system that allows plea offers is crumbling as is with the number of cases and low levels of public defense funding. Removing the possibility of plea deals from the table without completely overhauling the entire system would the cause the current system to collapse and likely cause a collapse of state prison systems since probation as a sentencing option would be rarer and there would not be sufficient capacity to house all the new prisoners.

You do have to contest what the prosecution is claiming. If they claim that you were doing this on the night of the 4th, then you need to prove you were doing something else.

There is a reason that you have a defense attorney, and it’s not just you vs the prosecution.

All of this would be a problem if my goal was to increase the prison population and those who are under sentences from the judicial system. As my goal is the opposite, those are features, not bugs.

If it ends up meaning a complete overhaul of our judicial system, even better.


They have to prove their claim, beyond a reasonable doubt. You can contest it, or you can just argue they haven’t proven their case.

That is contesting it.

I slightly misspoke in my reply, sure, in that I was saying that you had to prove that the prosecution didn’t have a case. I’m not sure how that works other than contesting the evidence that they have to offer. If they say you did it, and they have pictures of someone like you in the area, then you can’t just say to the jury, “the prosecution hasn’t proved its case”, you have to show why that is. But this is a hijack on the basis of semantics.

However, my original statement, that to which ganthet took exception, was me saying that you could be in a situation where you could prove your innocence, yet still take a plea deal to avoid awaiting trial. There was nothing whatsoever wrong, semantically or not, with that statement.

My local prosecutor was appointed by the President (for whom me and my neighbors have control of one half of one percent of the electoral vote for that office) and confirmed by the Senate (for which we have zero input). I have the same amount of say in who becomes the White House Chief of Staff as I do my local prosecutor.

ETA: or to put it another way, you are more reaponsible for the appointment of Scott Pruitt than I am for the official who decides whether to prosecute someone for breaking into a car on my block.

Oh, yeah, forgot you are in DC. You’re just all kinds of screwed over. Sorry.