Plea Bargaining Usurping the Role of the People in Criminal Justice

[k9bfriender]

@ganthet

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.

And that was what I said in the first place. You may have evidence that provides undeniable proof the prosecution’s case to be without any merit(proves your innocence), and yet still take a plea deal. I understand that you seem to have much more experience in these matter than I, and if I somehow missed a word, I apologize, but this really is a semantic hijack.

Lets say you have a perfect alibi for the time in question. Multiple witnesses, several video recordings, an Uber transaction, and whatever else. At what time are you allowed to present this evidence?

If you have to sit and wait in a jail cell for months before you are able to present this evidence, and in the meantime, witnesses move or disappear or don’t have such a good memory, and even videos get lost or corrupted, would you take the plea deal and get out today, or wait months, maybe years, and hope that your exculpatory evidence is still viable?

I don’t know what I would do in that situation. Get out today, and only have to serve a few years of probation, but at the same time having a mar on my up to now spotless criminal record, or sit in jail for an unknown amount of time, and gamble that your side of the story is compelling enough to a jury to overcome the prosecutor’s side.

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, what would you do in order to improve the criminal justice system?

To be honest I don’t think that you really need a whole new amendment, just take the ones we have seriously. The sixth specifically says "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, ", and my proposed amendment would essentially just change the ambiguous “speedy trial” and replace it with an actual time, and maybe change “shall” to “will”, along with prohibiting the accused form being punished for exercising that right.

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.

I disagree with the notion that pleading guilty should be considered a mitigating factor. Mitigating factors and extenuating circumstances, sure, they can be a part of sentencing. And maybe admitting guilt and responsibility should be part of rehabilitation, parole, and release, but threatening someone with harsher punishment if they do not admit guilt, and instead they insist on the rights granted to them by the constitution, seems to go against all sense of fairness and justice, IMHO.

[elucidator]

Being a prosecuting attorney has long been a stepping stone in a political career. In America, being seen as “tough on crime” is totally a winner, vote wise.

Most all societies have one form or another of a “criminal underclass”, for lack of better term. Some places treat them in an effort to reform them and return them to “normal”. America finds that too tiresome, and simply hates their guts.

So, you gotta add that into the mix and determine how much that influences the results.

[Mk_VII]

In my country, pre-trial incarceration is very much the exception rather than the rule.

[Northern_Piper]

In Canada, prosecutors are not elected, so “being tough on crime” is irrelevant to job advancement.

[Tom_Tildrum]

@Northern_Piper

In Canada, prosecutors are not elected, so “being tough on crime” is irrelevant to job advancement.

Presumably they can move on to elected office, however, which might explain why “tough on crime” keeps ebbing and flowing as a topic in Canadian politics. There seems to be a constituency for it.

2010: Is Canada tough on crime or doing just fine?

2011: Tough on poverty, tough on crime

2012: Feds get tough on white-collar crimes

2014: Canada Sticking To Tough On Crime Approach, While U.S. Slowly Moving Away

2016: Supreme Court strikes down Tories’ tough-on-crime laws

2018: Liberals advised to ditch ‘tough on crime’ approach to justice system

[Richard_Parker]

It’s a mistake to tie the phenomenon to electoral politics. Some US jurisdictions don’t elect prosecutors, and they tend to behave more or less the same there.

[Shodan]

I FIND that the scales of justice tip in favor of rejecting plea bargains unless I am presented with a counterbalance of case-specific factors sufficiently compelling to overcome the people’s interest in participating in the criminal justice system.

…97 percent of federal cases and 94 percent of state cases end in plea bargains, with defendants pleading guilty in exchange for a lesser sentence.

Are the People interested enough in participating that they are willing to fund 16 times as many state judges, prosecutors, and jurors, and 33 times as many federal ones? I suspect not.

Regards,
Shodan

[SmartAleq]

Well, how about requiring a balance between funding law enforcement and funding the court system? It makes no sense to keep on throwing money into more cops if you won’t also throw money into taking care of the workload more cops create. It’s like buying a million garbage trucks and hiring drivers for them but refusing to build landfills. Where’s it all going to go?

We fund the holy fuck out of cop shops, we spend like water to build prisons and throw money at the corporations who run them and we financially guarantee they’ll have a full slate of prisoners but then we choke out the court system and public defenders and don’t give them more than the most token pittance to operate on? Seems to me that’s not an oversight, that’s a pretty deliberate construction of an industry that makes money from incarceration. I don’t think that’s what was envisioned when all this was set up. The goal is not to create prisoners so prisons can make money, the goal should be to deal with whatever criminals show up on their own in the most sensible manner that protects society. This is not happening.

[Bone]

@UltraVires

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.

It’s a bad system where there need be a reliance on overcharging or coercive pre-trial activities else the system would collapse. A backlog would be detrimental to the very people with little means so that’s crap, but ultimately getting to the place where there are less overall charges issued could be better.

Ultimately I think the penalties for minor offenses should be reduced, the incidence of plea bargaining should be dramatically reduced by making the choice less attractive to those accused, and the leverage wielded by prosecutors should be curtailed to limit coercive impact. I don’t know how to accomplish any of that.

[Richard_Parker]

@Shodan

Are the People interested enough in participating that they are willing to fund 16 times as many state judges, prosecutors, and jurors, and 33 times as many federal ones? I suspect not.

Regards,
Shodan

The alternative, of course, is simply to arrest and charge fewer people.

[elucidator]

By God sir, the collapse! Barbarians at the gated communities!

[elucidator]

@Richard_Parker

It’s a mistake to tie the phenomenon to electoral politics. Some US jurisdictions don’t elect prosecutors, and they tend to behave more or less the same there.

Perhaps. A thought experiment, maybe. How many legislators at all levels were lawyers? And how many of those, prosecuting attorneys?

[Richard_Parker]

@elucidator

Perhaps. A thought experiment, maybe. How many legislators at all levels were lawyers? And how many of those, prosecuting attorneys?

In Delaware, I think there are like 3 attorneys in the whole legislature. None of them were prosecutors. And yet, Delaware has an incarceration rate that is 80% higher than New Jersey’s, to say nothing of, like, normal jurisdictions in the developing world.

It’s a legacy of Delaware’s racial history, among other things.

[UltraVires]

@Northern_Piper

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

I agree that death is a much more serious penalty than a fine for a marijuana conviction, but I don’t necessary agree with the whole “death is different” concept of U.S. jurisprudence.

I wouldn’t want to be put to death, but right below that is doing the rest of my life in prison, 30 years, 20 years, 10 years, etc. I think all are simply matters of degree.

Sure, death is much worse, but I think it would be wrong to have to serve 20 years in prison when someone right across the county line who does the same thing with the same criminal history only has to do 10 years. Or, to look at it differently, why should the good citizens of his county have to put up with him back on the streets after 10 years when the people of my county are rid of me for 20? Either way it’s not fair.

[UltraVires]

@Richard_Parker

The alternative, of course, is simply to arrest and charge fewer people.

Not that I necessarily disagree, but wouldn’t that mean that as a society we could expect more turnstile jumpers, littering, and people pissing on the sidewalk?

[septimus]

Suppose we have two defendants; one of them is innocent but we don’t know which one. We could try them both, giving one 10 years in prison and setting the other free. Or we could just get them each to plea to a 5-year sentences. Same-same?

@UltraVires

Without overcharging or coercive pre-trial bail, more defendants will take their cases to trial causing a backlog in the system…

Yeah, we get that the “justice” system saves money by encouraging defendants, guilty or innocent, to plea bargain. But does your cost calculus also consider the costs incurred by innocent prisoners and their families?

I think it was in New Yorker where I read of an innocent man convicted of murder even though he had a good alibi witness. The public defender felt that his tiny “detective” budget wasn’t enough to take an hour-long car trip to interview the alibi witness. The taxpayers saved a tankful of gasoline; the innocent man lost years of his life.

[UltraVires]

@septimus

Suppose we have two defendants; one of them is innocent but we don’t know which one. We could try them both, giving one 10 years in prison and setting the other free. Or we could just get them each to plea to a 5-year sentences. Same-same?

Yeah, we get that the “justice” system saves money by encouraging defendants, guilty or innocent, to plea bargain. But does your cost calculus also consider the costs incurred by innocent prisoners and their families?

I think it was in New Yorker where I read of an innocent man convicted of murder even though he had a good alibi witness. The public defender felt that his tiny “detective” budget wasn’t enough to take an hour-long car trip to interview the alibi witness. The taxpayers saved a tankful of gasoline; the innocent man lost years of his life.

I wasn’t saying that in support of the system. I think the system is terrible and needs reformed.

[Northern_Piper]

@Richard_Parker

It’s a mistake to tie the phenomenon to electoral politics. Some US jurisdictions don’t elect prosecutors, and they tend to behave more or less the same there.

@elucidator

Perhaps. A thought experiment, maybe. How many legislators at all levels were lawyers? And how many of those, prosecuting attorneys?

I’ve been thinking about these two posts on and off all afternoon (although I do keep up a semblance of working ).

I’ve been trying to think of career prosecutors in Canada who have gone to stand in an election.

So far I’ve come up with two: Peter McKay at the federal level, and a retired Crown prosecutor in my own province who ran for the Assembly, close to 30 years ago.

McKay is an outlier, in my opinion. He was the son of an extremely well-connected federal MP/Cabinet minister. I think it was generally accepted he was a prosecutor for a few years to get some cred, sure, but I wouldn’t say he was a career prosecutor who jumped to politics.

The one at the provincial level was certainly a career prosecutor. When he hit mandatory retirement at 65, he stood for election and won. I think he expected he would be a shoo-in for Attorney General. But in our strong party system, experience in the party, being on the front lines, knocking on doors even in lost-hope ridings, is how you build your chops in the party. A retired public servant, who’s been non-partisan all his career, almost by definition lacks all that.

So he ended up as a back-bencher for one term, while people with 20 years service with the party were in Cabinet. He didn’t stand in the next election. That was the end of his political career.

I honestly can’t think of a career prosecutor who’s made a big splash politically.

As well, in our system you not only don’t run to be elected a prosecutor. You don’t run for Attorney General. It’s the first minister’s choice who becomes AG, and if you’re AG, you can be shuffled out on a moment’s notice.

That’s not to say that you can’t have a party running on a “law and order” platform. I’m just saying I’m drawing a blank on a career prosecutor doing it successfully.

[Captain_Amazing]

@Northern_Piper

I’ve been trying to think of career prosecutors in Canada who have gone to stand in an election.

Jody Wilson-Raybould, the current Attorney General, was a Crown Prosecutor in BC. That wasn’t what brought her to prominence, but she was. Vic Towes had been a Crown Attorney in Manitoba, also.

[Northern_Piper]

Those are two good examples, you’re right.