# Plea Bargaining Usurping the Role of the People in Criminal Justice **URL:** \ **Category:** Great Debates\ **Created:** [April 27, 2018, 5:11pm UTC](https://boards.straightdope.com/t/plea-bargaining-usurping-the-role-of-the-people-in-criminal-justice/813230 "2018-04-27T17:11:56Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![septimus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/septimus/32/410_2.png) [@septimus](https://boards.straightdope.com/u/septimus)\ **Post date:** [April 28, 2018, 6:12am UTC](https://boards.straightdope.com/t/plea-bargaining-usurping-the-role-of-the-people-in-criminal-justice/813230/21 "2018-04-28T06:12:35Z")
From [a recent article in _Atlantic Monthly_](https://www.theatlantic.com/politics/archive/2017/05/plea-bargaining-courts-prosecutors/524112/) > [@](#): > > Shondel Church … sat in Lafayette County Jail for six weeks before his first conversation with a public defender, Matthew Gass. Gass was reportedly hopeful that he could win the case at trial, but explained that the intensity of his workload meant he would need six months to prepare—six months during which Church would remain jailed. As a father of four and his family’s primary breadwinner, Church felt he couldn’t wait that long and instead pled guilty to a misdemeanor. > … > Pleas, wrote the Wisconsin Supreme Court in 1877, are “hardly, if at all, distinguishable in principle from a direct sale of justice.” > … Chief Justice Warren Burger [wrote] in 1971: “An affluent society ought not be miserly in support of justice, for economy is not an objective of the system” From [another recent article in _Atlantic Monthly_](https://www.theatlantic.com/magazine/archive/2017/09/innocence-is-irrelevant/534171/) > [@](#): > > … 630,000 people are in jail on any given day, and 443,000 of them—70 percent—are in pretrial detention. Many of these defendants are facing minor charges that would not mandate further incarceration, but they lack the resources to make bail and secure their freedom. Some therefore feel compelled to take whatever deal the prosecutor offers, even if they are innocent… > Thanks in part to plea bargains, millions of Americans have a criminal record; in 2011, the National Employment Law Project estimated that figure at 65 million. It is a mark that can carry lifetime consequences for education, employment, and housing. Having a record, even for a violation that is trivial or specious, means a person can face tougher charges and punishment if he or she again encounters the criminal-justice system. Plea bargaining has become so coercive that many innocent people feel they have no option but to plead guilty. “Our system makes it a rational choice to plead guilty to something you didn’t do,” Maddy deLone, the executive director of the Innocence Project, told me. The result, according to the late Harvard law professor William J. Stuntz, who wrote extensively about the history of plea bargains in The _Collapse of American Criminal Justice_ (2011), is a system that has become “the harshest in the history of democratic government.” ---
**Author:** ![ganthet](https://avatars.discourse-cdn.com/v4/letter/g/9de0a6/32.png) [@ganthet](https://boards.straightdope.com/u/ganthet)\ **Post date:** [April 28, 2018, 8:40am UTC](https://boards.straightdope.com/t/plea-bargaining-usurping-the-role-of-the-people-in-criminal-justice/813230/22 "2018-04-28T08:40:46Z")
> [@k9bfriender](#): > > 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. That isn’t accurate. It is very possible to poke holes in the testimony of prosecution witnesses claiming that a particular defendant was at a specific location or doing a specific activity at the scene of a crime through cross-examination without offering up a defense alibi witness or defense evidence showing that the defendant was in fact not at that specific location or not doing that specific activity. It’s the difference between Vinny from “My Cousin Vinny” cross-examining [the grit-maker](https://www.youtube.com/watch?v=OdCRRc9zlas) about his unreliable memory as to time and the possibility that he saw two other people rather than the two defendants vs. Vinny [calling his fiance](https://www.youtube.com/watch?v=3nGQLQF1b6I) to the stand to offer expert testimony about tire tracks from the crime scene that don’t match the tires of the car that the two defendants were driving. If Vinny did not offer any evidence himself or call any defense witnesses, he was still able to argue during closing arguments that the two defendants did not commit the armed robbery and murder and that the prosecution witnesses were either mistaken or lying. Poking holes in the reliability or credibility of prosecution witnesses does not prove anything, but depending on how many or how significant the holes are, that alone may be sufficient for a defense attorney to argue that the government has not proven the accused guilty beyond a reasonable doubt because their evidence/witnesses should not be believed. > [@](#): > > 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. The problem with implementing your proposals before a complete overhaul of the justice system is that the justice system would collapse first. That would mean either a lot of potential dangerous (alleged) criminals who would have been in-custody pending trial would be free because there isn’t enough jail space and many more potentially dangerous prison inmates being released much earlier than normal to free up prison space, or a whole lot more wrongfully accused people and non-dangerous alleged criminals being needlessly kept in overwhelmingly overcrowded custody while they wait many, many months for their trial to come around. And in the latter scenario, the prison system would still collapse from the strain of so many additional prisoners who are kept in prison much longer than before. So, either public safety would deteriorate exponentially in the first scenario or the U.S. would truly turn into a gulag nation in the second. > [@](#): > > 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. There is no jury verdict form in which jurors can indicate that an accused is innocent. All they have are guilty (of a charge or potentially a lesser included offense) or not guilty. An accused is never responsible for proving their innocence. And not guilty does not equal innocence. Most state courts, unlike federal courts, do not allow for [Alford pleas](https://en.wikipedia.org/wiki/Alford_plea) in which an accused maintains that they are not guilty of a charged criminal offense but plead guilty anyway because they acknowledge that the government can probably prove their guilt beyond a reasonable doubt at trial. Even in the courts that do allow for such a plea, many prosecutors offices have very strict guidelines on when they would sign off on allowing a defendant to make such a plea uncontested. Most state courts require a defendant who takes a plea offer to admit their guilt to one or more charges and, during the colloquy to the plea agreement, courts require that the accused either state facts as to why they are guilty of one or more offenses list in the plea agreement or at least agree to a summary of the criminal conduct as read aloud by the prosecutor, judge, or their defense attorney. In those cases involving a non-Alford plea, if a defendant verbally maintained they did not commit the offense(s) listed in the plea agreement but stated they wished to take the plea offer anyway, the court would not accept the plea agreement and would set the case for trial. ---
**Author:** ![Textual\_Innuendo](https://avatars.discourse-cdn.com/v4/letter/t/898d66/32.png) [@Textual\_Innuendo](https://boards.straightdope.com/u/Textual_Innuendo)\ **Post date:** [April 28, 2018, 12:24pm UTC](https://boards.straightdope.com/t/plea-bargaining-usurping-the-role-of-the-people-in-criminal-justice/813230/23 "2018-04-28T12:24:13Z")
> [@ganthet](#): > > The problem with implementing your proposals before a complete overhaul of the justice system is that the justice system would collapse first. I thought the answer was alluded to above - triage. There shouldn’t be any additional load of testing for drug labs, because drug offenses are petty bullshit when compared to actual crimes like rape, arson, assault, homicide, etc. Serious violent crimes are probably 10%-20% of the total crimes those 430k people were waiting to be arraigned for. If you triage, you focus your testing and prosecutorial and juridical resources on that 10% - 20% first, to the exclusion of less harmful and less important crimes. Then if our resources are such that we just can’t get around to those less harmful crimes within a reasonable time, they’re the ones being let go with no charges. Frankly, we’re ALREADY a gulag nation - we have more prisoners both in absolute numbers and per-capita than any other nation, including China, Russia, Syria, Saudi Arabia, and any tin-pot dictator state you can think of. Our problem is we want to prosecute everyone for everything even if any actual harm stemming from the “crime” was minimal, because for some reason being “tough on crime” is a virtue here. Our resources are only “limited” and “underfunded” BECAUSE we’re a gulag nation - if we prioritized going after actually harmful crimes, we wouldn’t have this problem, and wouldn’t have to deprive people of their constitutional rights with a severely broken plea system. ---
**Author:** ![aldiboronti](https://avatars.discourse-cdn.com/v4/letter/a/9fc348/32.png) [@aldiboronti](https://boards.straightdope.com/u/aldiboronti)\ **Post date:** [April 28, 2018, 12:26pm UTC](https://boards.straightdope.com/t/plea-bargaining-usurping-the-role-of-the-people-in-criminal-justice/813230/24 "2018-04-28T12:26:21Z")
My impression was that without plea bargaining to relieve the pressure on the courts the whole system would be in trouble. Is that wrong? ---
**Author:** ![ZonexandScout](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zonexandscout/32/544_2.png) [@ZonexandScout](https://boards.straightdope.com/u/ZonexandScout)\ **Post date:** [April 28, 2018, 12:49pm UTC](https://boards.straightdope.com/t/plea-bargaining-usurping-the-role-of-the-people-in-criminal-justice/813230/25 "2018-04-28T12:49:23Z")
> [@k9bfriender](#): > > 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. (Edited to emphasize this statement.) I can give you at least one real-life story. My BIL was arrested for a murder that he supposedly committed in the company of another individual. Due to circumstances, there was little evidence (other than the co-defendant’s own testimony, which would not have come out in court) that the co-defendant was even present at the time. BIL was offered a deal if he would cooperate in the conviction of his co-defendant. He absolutely refused and maintained that they were both innocent. BIL was convicted and sentenced to life in a jury trial. Charges against his co-defendant were ultimately dropped altogether and he was never tried. Fast forward 15 years…BIL’s case was reviewed and he was completely exonerated of the crime. When asked if he had any doubts about BIL’s innocence, one of the attorneys involved stated that one of the strongest arguments for innocence was that BIL would not “roll” on the co-defendant, taking a life sentence instead of admitting that both were guilty and probably getting a much lighter sentence (e.g., 5-10 actual). To be honest, I’m not sure if I would have had that kind of guts. In his case, refusing a plea bargain and relying on a jury of his peers cost him over 15 years of prison time. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [April 28, 2018, 5:41pm UTC](https://boards.straightdope.com/t/plea-bargaining-usurping-the-role-of-the-people-in-criminal-justice/813230/26 "2018-04-28T17:41:59Z")
> [@ganthet](#): > > That isn’t accurate. It is very possible to poke holes in the testimony of prosecution witnesses claiming that a particular defendant was at a specific location or doing a specific activity at the scene of a crime through cross-examination without offering up a defense alibi witness or defense evidence showing that the defendant was in fact not at that specific location or not doing that specific activity. It’s the difference between Vinny from “My Cousin Vinny” cross-examining [the grit-maker](https://www.youtube.com/watch?v=OdCRRc9zlas) about his unreliable memory as to time and the possibility that he saw two other people rather than the two defendants vs. Vinny [calling his fiance](https://www.youtube.com/watch?v=3nGQLQF1b6I) to the stand to offer expert testimony about tire tracks from the crime scene that don’t match the tires of the car that the two defendants were driving. > > If Vinny did not offer any evidence himself or call any defense witnesses, he was still able to argue during closing arguments that the two defendants did not commit the armed robbery and murder and that the prosecution witnesses were either mistaken or lying. Poking holes in the reliability or credibility of prosecution witnesses does not prove anything, but depending on how many or how significant the holes are, that alone may be sufficient for a defense attorney to argue that the government has not proven the accused guilty beyond a reasonable doubt because their evidence/witnesses should not be believed. I’m not sure where you are trying to go with this. Are you saying that if you have exculpatory evidence, you shouldn’t use it, because the jury should just know from the lack of prosecution’s case? Even just “poking holes” still involves an affirmative act on your and your lawyers part. BTW, while I did see “cousin vinny” it was about 30 years ago, I only very vaguely catch your references, but I don’t really think that it was meant to be a documentary on our justice system. > [@](#): > > The problem with implementing your proposals before a complete overhaul of the justice system is that the justice system would collapse first. That would mean either a lot of potential dangerous (alleged) criminals who would have been in-custody pending trial would be free because there isn’t enough jail space and many more potentially dangerous prison inmates being released much earlier than normal to free up prison space, or a whole lot more wrongfully accused people and non-dangerous alleged criminals being needlessly kept in overwhelmingly overcrowded custody while they wait many, many months for their trial to come around. And in the latter scenario, the prison system would still collapse from the strain of so many additional prisoners who are kept in prison much longer than before. > > So, either public safety would deteriorate exponentially in the first scenario or the U.S. would truly turn into a gulag nation in the second. Or they stop charging people with so many bullshit crimes. They stop looking for reasons to lock people up. Just the bail system, where people will spend months sitting in jail waiting for trial itself is a problem. Most of these people aren’t really flight risks, 'cuase, where would they go, and they don’t have the money for bail, so instead, they sit in jail, even if they have committed no crime. > [@](#): > > There is no jury verdict form in which jurors can indicate that an accused is innocent. All they have are guilty (of a charge or potentially a lesser included offense) or not guilty. An accused is never responsible for proving their innocence. And not guilty does not equal innocence. Most state courts, unlike federal courts, do not allow for [Alford pleas](https://en.wikipedia.org/wiki/Alford_plea) in which an accused maintains that they are not guilty of a charged criminal offense but plead guilty anyway because they acknowledge that the government can probably prove their guilt beyond a reasonable doubt at trial. Even in the courts that do allow for such a plea, many prosecutors offices have very strict guidelines on when they would sign off on allowing a defendant to make such a plea uncontested. Most state courts require a defendant who takes a plea offer to admit their guilt to one or more charges and, during the colloquy to the plea agreement, courts require that the accused either state facts as to why they are guilty of one or more offenses list in the plea agreement or at least agree to a summary of the criminal conduct as read aloud by the prosecutor, judge, or their defense attorney. In those cases involving a non-Alford plea, if a defendant verbally maintained they did not commit the offense(s) listed in the plea agreement but stated they wished to take the plea offer anyway, the court would not accept the plea agreement and would set the case for trial. You attempts at semantic corrections do not respond to my statement in the slightest. Unless you are doubting the possibility of the existence of evidence that can be used to show that you are not guilty, I’m not sure what you are trying to get at there. I am saying that, in the case when the defendant has exculpatory evidence that proves beyond a shadow of a doubt that they did not commit what they are accused of, they will still be waiting in jail for months for a trial to present that evidence(and while you are in jail, that evidence may not be well protected, and may no longer be available to you by the time you are able to present your case). Or, they could take the plea bargain and get out today with probation. That’s the hard deal. What would you do in that situation? Lie, and admit guilt and receive punishment for something that you didn’t do, or receive greater punishment for something that you didn’t do while waiting to see if the state believes your story, and if they do not, then you will receive an even harsher punishment for wasting the legal systems time by asserting your constitutional rights. ---
**Author:** ![SmartAleq](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smartaleq/32/163_2.png) [@SmartAleq](https://boards.straightdope.com/u/SmartAleq)\ **Post date:** [April 28, 2018, 8:38pm UTC](https://boards.straightdope.com/t/plea-bargaining-usurping-the-role-of-the-people-in-criminal-justice/813230/27 "2018-04-28T20:38:06Z")
Can someone explain to me what the justification is for pre-trial incarceration? Because from where I’m sitting it looks like people are being punished before they’ve ever been tried just because they aren’t rich enough to purchase their freedom. Would it be reasonable for me to speculate that if there were no occupancy guarantees to for-profit prison companies that a large driver of pre-trial incarceration would disappear? If there were no financial disincentive to letting the accused go about their business until their day in court arrived would it be reasonable to assume that fewer people would sit for years untried? Because it sure seems that way to me. How in the hell can you guarantee that the right number of people WILL commit crimes, unless you’re going out of your way to ensure that those numbers get met? What happens if nobody does anything terribly criminal for a year, do the jails fill up with jaywalkers or those with unpaid parking tickets? I’m kinda thinking that might be a likely result. “Broken windows policing” seems to me to just be a way to ensure the prison pipeline remains full. If you can’t get enough really serious criminals doing really serious crimes, go bust some pot smokers or loosie vendors and the like to keep the monster fed. Seems very cart before the horse to me. ---
**Author:** ![septimus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/septimus/32/410_2.png) [@septimus](https://boards.straightdope.com/u/septimus)\ **Post date:** [April 28, 2018, 9:35pm UTC](https://boards.straightdope.com/t/plea-bargaining-usurping-the-role-of-the-people-in-criminal-justice/813230/28 "2018-04-28T21:35:41Z")
> [@SmartAleq](#): > > Can someone explain to me what the justification is for pre-trial incarceration? Because from where I’m sitting it looks like people are being punished before they’ve ever been tried just because they aren’t rich enough to purchase their freedom. As **k9bfriender** points out, many of those incarcerated because unable to make bail are not flight risks: _ **If they had enough money to start a new life or hide effectively from the police, they’d have no trouble making bail.** _ Many innocent defendants are faced with the choice: _Plead guilty and go free (sentenced with ‘time already served in custody’). Or plead not guilty and remain in jail awaiting trial._ It’s impressive that as many insist on innocence as do. The Sixth Amendment promises ‘the right to a speedy trial’ but that is routinely violated for the convenience of courts and lawyers. There should be picketers out protesting the threats to Sixth Amendment but as a nation we have time for only 100 units of Amendment Enthusiasm and are already spending 500 units of Enthusiasm on one of the other Amendments. [America’s bail bond industry is thriving and very profitable](https://www.citylab.com/equity/2017/05/who-really-makes-money-off-of-bail-bonds/526587/). The industry earns billions of dollars per year, much of it money forfeited by people eventually proved innocent — you don’t get your 10% back. If the bail system were made fairer, the entrepreneurs and employees of the bail bond industry would be unemployed — we can’t have that! > [@SmartAleq](#): > > “Broken windows policing” seems to me to just be a way to ensure the prison pipeline remains full. If you can’t get enough really serious criminals doing really serious crimes, go bust some pot smokers or loosie vendors and the like to keep the monster fed. Seems very cart before the horse to me. ---
**Author:** ![SmartAleq](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smartaleq/32/163_2.png) [@SmartAleq](https://boards.straightdope.com/u/SmartAleq)\ **Post date:** [April 28, 2018, 10:07pm UTC](https://boards.straightdope.com/t/plea-bargaining-usurping-the-role-of-the-people-in-criminal-justice/813230/29 "2018-04-28T22:07:25Z")
In the case of even the most minor of felonies I totally understand why people insist on going to trial because that felony on your record means a very long list of things you can’t do any more. Your access to jobs, housing, voting and other services can be strictly curtailed once you have that felony sheet. Plus, most of us are pretty pissed off at being labelled something without justification–look at the furor over men being accused of sexual harassment and how aggravated people get because they feel those men have been sentenced without a trial. That’s a big blinky button for most people, being wrongly accused and it says a lot about the power differential inherent in the criminal justice system that so many people who didn’t do anything will nonetheless take a plea to avoid getting fucked even harder in a trial. ---
**Author:** ![septimus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/septimus/32/410_2.png) [@septimus](https://boards.straightdope.com/u/septimus)\ **Post date:** [April 28, 2018, 10:14pm UTC](https://boards.straightdope.com/t/plea-bargaining-usurping-the-role-of-the-people-in-criminal-justice/813230/30 "2018-04-28T22:14:22Z")
> [@Textual\_Innuendo](#): > > … we have more prisoners both in absolute numbers and per-capita than any other nation, including China, Russia, Syria, Saudi Arabia, and any tin-pot dictator state you can think of… This statistic flabbergasted me enough that I Googled it. The U.S.A. does have the world’s highest incarceration rate. Go, go go, America! The Seychelle Islands (with a population only a quarter of Bakersfield’s) noses out U.S.A. on some lists, but not when U.S. juveniles and immigration detainees are included in totals. Of course the incarceration rate varies by state. No U.S. state comes close to approaching the low rates seen in all other developed countries, but a few states, e.g. Maine and Massachusetts, have slightly lower incarceration rates than Russia or Thailand. There are seven states with three times Maine’s incarceration rate; they read like a Who’s-who of You-know-what: Arizona, Texas, Georgia, Alabama, Mississippi, Oklahoma, and (with 1.4% of the adult population incarcerated on Dec. 31, 2013, so _quadruple_ Maine’s rate) Louisiana. ---
**Author:** ![SmartAleq](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smartaleq/32/163_2.png) [@SmartAleq](https://boards.straightdope.com/u/SmartAleq)\ **Post date:** [April 28, 2018, 11:24pm UTC](https://boards.straightdope.com/t/plea-bargaining-usurping-the-role-of-the-people-in-criminal-justice/813230/31 "2018-04-28T23:24:27Z")
Those states correlate solidly to the for profit prison industry. Those are states that have actively courted the prison companies, and are reaping the benefits in federal cash, jobs and also using the incarcerated population to assist in gerrymandering districts as well. It’s kinda fucked up all around. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [April 29, 2018, 12:15am UTC](https://boards.straightdope.com/t/plea-bargaining-usurping-the-role-of-the-people-in-criminal-justice/813230/32 "2018-04-29T00:15:45Z")
The Master Speaks: Does the United Stated lead the world in prison population? > **[Does the United States lead the world in prison population?](https://www.straightdope.com/columns/read/2494/does-the-united-states-lead-the-world-in-prison-population/)** ---
**Author:** ![septimus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/septimus/32/410_2.png) [@septimus](https://boards.straightdope.com/u/septimus)\ **Post date:** [April 29, 2018, 12:29am UTC](https://boards.straightdope.com/t/plea-bargaining-usurping-the-role-of-the-people-in-criminal-justice/813230/33 "2018-04-29T00:29:46Z")
> [@Northern\_Piper](#): > > The Master Speaks: > > Does the United Stated lead the world in prison population? > > [https://www.straightdope.com/columns/read/2494/does-the-united-states-lead-the-world-in-prison-population/](https://www.straightdope.com/columns/read/2494/does-the-united-states-lead-the-world-in-prison-population/) So, checking the Wikipedia page again I see that North Korea _might_ lead the U.S. in per capita incarceration if the upper range of an NGO estimate is correct. The U.S. would be only #2. :mad: MAGA. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [April 29, 2018, 1:21am UTC](https://boards.straightdope.com/t/plea-bargaining-usurping-the-role-of-the-people-in-criminal-justice/813230/34 "2018-04-29T01:21:15Z")
Yes, and **Cecil** did note that the stats from China were suspiciously low, suggesting under-reporting, which could affect both the absolute and per capita ranking for China. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 29, 2018, 1:24am UTC](https://boards.straightdope.com/t/plea-bargaining-usurping-the-role-of-the-people-in-criminal-justice/813230/35 "2018-04-29T01:24:20Z")
> [@Bone](#): > > 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. But that’s just it: the people (through their Legislature) do not want the crime punished with X; they are happy with 1/10X so long as the accused doesn’t actually insist on any of his rights, then we have X as a backstop. X is sort of like the sticker price on a car. It says in writing that the law is punishable by X, but only the a select few actually see X. At some point, the courts need to find that the plea bargaining system is a violation of due process. If the Legislature passed a law that said mopery is punishable by 3 years, but if the Defendant insists on a jury trial it is 10 years, then that law would be struck down in a heartbeat. But we can have that system in practice and everyone thinks it’s great. The criminal justice system is more like a casino where a criminal defendant can roll the dice and win and go home or lose and never go home. Or he can choose not to play and take the plea bargain. None of this has anything to do with guilt or innocence, except that the innocent will be more likely to roll the dice and lose while the guilty are happy with anything they can get. It needs changed drastically, but instead of changing it, the U.S. Supreme Court embraces it. Very sad. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 29, 2018, 1:29am UTC](https://boards.straightdope.com/t/plea-bargaining-usurping-the-role-of-the-people-in-criminal-justice/813230/36 "2018-04-29T01:29:45Z")
> [@Richard\_Parker](#): > > 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: [Finalized Memo Mar. 13, 2018 | PDF](https://www.scribd.com/document/373860422/Finalized-Memo-Mar-13-2018) Without overcharging or coercive pre-trial bail, more defendants will take their cases to trial causing a backlog in the system. I also have a problem with a local prosecutor effectively nullifying state laws. I tend to agree that possession of marijuana should not be charged in most cases, but that is a decision that the people through their legislature should make, not the whim of a prosecutor. It seems fundamentally unfair that in one county in the same state, I would get the book thrown at me for marijuana possession, but the next county over it isn’t even prosecuted. ---
**Author:** ![DavidwithanR](https://avatars.discourse-cdn.com/v4/letter/d/3bc359/32.png) [@DavidwithanR](https://boards.straightdope.com/u/DavidwithanR)\ **Post date:** [April 29, 2018, 3:29am UTC](https://boards.straightdope.com/t/plea-bargaining-usurping-the-role-of-the-people-in-criminal-justice/813230/37 "2018-04-29T03:29:57Z")
If you’re going to have private jails, you might as well go the whole way and privatize the judiciary and police and the congress too. ---
**Author:** ![ganthet](https://avatars.discourse-cdn.com/v4/letter/g/9de0a6/32.png) [@ganthet](https://boards.straightdope.com/u/ganthet)\ **Post date:** [April 29, 2018, 3:47am UTC](https://boards.straightdope.com/t/plea-bargaining-usurping-the-role-of-the-people-in-criminal-justice/813230/38 "2018-04-29T03:47:50Z")
> [@k9bfriender](#): > > I’m not sure where you are trying to go with this. Are you saying that if you have exculpatory evidence, you shouldn’t use it, because the jury should just know from the lack of prosecution’s case? > > Even just “poking holes” still involves an affirmative act on your and your lawyers part. > > BTW, while I did see “cousin vinny” it was about 30 years ago, I only very vaguely catch your references, but I don’t really think that it was meant to be a documentary on our justice system. The references were meant to illustrate the difference in “poking holes” in the government’s case by cross-examining their witnesses versus the defense presenting evidence themselves. There is a reason “My Cousin Vinny” [has been used in law schools](http://iaals.du.edu/educating-tomorrows-lawyers/projects/resources/evidence-law) for quite a while [to teach important litigation, evidence, and ethical concepts and techniques](https://www.npr.org/2017/03/13/519954261/my-cousin-vinny-turns-25). I first watched it in my Evidence class as a 1L. But no, simply cross-examining a witness is not an “affirmative act,” particularly when you seem to be using the words “prove” and “affirmative act” as synonyms. Words generally are not equated with actions. Questioning a prosecution witness and revealing them to be unreliable or not credible to a jury is not proving anything - it is just intended by the defense attorney to show the jury that they should not rely on that witness’s testimony when they deliberate about the evidence. That a witness’s credibility and reliability are very subjective and jurors can still believe every word that witness says regardless of their confusion on the witness stand highlights the idea that cross-examination often does not prove or seek to prove anything in an objective sense. An affirmative act, as you use the term, would be the defense presenting a witness that offers testimony to undercut a key element of an offense that the prosecution must prove. A defendant in the U.S. system is never required to prove their innocence, at least when affirmative defenses are not involved. This means that the defense attorney can decline to question a single prosecution witness, not offer a single defense witness or piece of evidence of their own, and still argue at the end of the trial that the prosecution has not proven every element of the charged offense(s) beyond a reasonable doubt and therefore the defendant should be found not guilty. That doesn’t mean this is advisable, but “should” and “must” are not to be confused. > [@](#): > > You attempts at semantic corrections do not respond to my statement in the slightest. Unless you are doubting the possibility of the existence of evidence that can be used to show that you are not guilty, I’m not sure what you are trying to get at there. > > I am saying that, in the case when the defendant has exculpatory evidence that proves beyond a shadow of a doubt that they did not commit what they are accused of, they will still be waiting in jail for months for a trial to present that evidence(and while you are in jail, that evidence may not be well protected, and may no longer be available to you by the time you are able to present your case). Or, they could take the plea bargain and get out today with probation. That’s the hard deal. What would you do in that situation? Lie, and admit guilt and receive punishment for something that you didn’t do, or receive greater punishment for something that you didn’t do while waiting to see if the state believes your story, and if they do not, then you will receive an even harsher punishment for wasting the legal systems time by asserting your constitutional rights. I have been a prosecutor and defense attorney in both civilian courts and military courts-martial. Prohibiting plea agreements and requiring trials to be held within a year of charges being brought are not going to bring about a radically fairer criminal justice system in and of themselves. In the military justice system, an accused’s speedy trial rights are defined in a very bright line way - the accused’s court-martial must begin within 120 days of charges being referred by a General Court-Martial Convening Authority, unless any delay is excused by the military judge or occasioned by the accused, such as if the accused goes AWOL before the court-martial or asks for a continuance. The plea agreement process in courts-martial, much like in federal criminal court, can be long and excruciating. The judge asks the accused very detailed questions about what actions they did leading to and during the crime(s), their mental state at the time, whether any particular legal defenses apply to their case, and why such legal defenses do not apply. Essentially, the process is aimed to convince the judge that the accused truly believes that they are, in fact, guilty, that they have discussed their case and possible defenses in-depth with their attorney, and that their guilty plea is genuine. Even this rigorous, pain-staking process would not guarantee an accused is not simply lying about their guilt. So long as pleading guilty (and thus “accepting responsibility for their actions”), with the protections of a plea agreement or not, is considered a mitigating factor at sentencing that serves to lessen the punishment of an accused, then whether plea agreements are prohibited or not will not prevent defendants from saying they are guilty just to avoid a potentially increased sentence later if they are proven guilty at trial. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [April 29, 2018, 6:20am UTC](https://boards.straightdope.com/t/plea-bargaining-usurping-the-role-of-the-people-in-criminal-justice/813230/39 "2018-04-29T06:20:04Z")
> [@DavidwithanR](#): > > If you’re going to have private jails, you might as well go the whole way and privatize the judiciary and police and the congress too. Oh, that’s been done for years and years, the prisons were lower down on the list. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [April 29, 2018, 4:51pm UTC](https://boards.straightdope.com/t/plea-bargaining-usurping-the-role-of-the-people-in-criminal-justice/813230/40 "2018-04-29T16:51:25Z")
> [@UltraVires](#): > > It seems fundamentally unfair that in one county in the same state, I would get the book thrown at me for marijuana possession, but the next county over it isn’t even prosecuted. Forget about the variation in enforcement of cannabis laws: consider the variation from county to county in prosecutors seeking the death penalty. One study from Harvard indicated that since the restoration of capital punishment, one-20th of all state death penalty convictions in the US came from just five counties, during the tenure of just five district attorneys and their prosecutions policy. For instance, one of those counties averaged 12 capital prosecutions per year. When the DA retired, the number dropped immediately to 1 per year. The authors of the study concluded that the death penalty in the United States is a “personality-driven system”, not one where the outcome is determined by law alone. It is a tremendous amount of discretion given to a local elected official. [America’s deadliest prosecutors: five lawyers, 440 death sentences](https://www.theguardian.com/us-news/2016/jun/29/us-deadliest-prosecutors-death-penalty-five-attorneys-justice-system) [Previous page](https://boards.straightdope.com/t/plea-bargaining-usurping-the-role-of-the-people-in-criminal-justice/813230.md?page=1) [Next page](https://boards.straightdope.com/t/plea-bargaining-usurping-the-role-of-the-people-in-criminal-justice/813230.md?page=3)