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How to End the Draconian Unfairness of Plea Bargaining

Recent years have seen a dramatic growth in the number of complaints, e.g., here, that criminal trials have all but disappeared in the United States and essentially have been replaced by plea bargaining.  Closely related to this complaint is the argument that, mostly just to make their jobs easier and marginalize judges, prosecutors brandish long mandatory minimum sentences to bully defendants  -- including the legion of innocent ones  --  into prison.  The idea is that defendants are offered the choice of taking a plea to a relatively lighter charge or going to trial on charges with much longer, and often mandatory, penalties. Defendants, even those with solid defenses, feel like they have no choice but to take the deal.

One thing seldom heard when the bellowing starts is even slight mention that exactly these arguments were presented to, and rejected by, the Supreme Court decades ago, in Bordenkircher v. Hayes, 434 U.S. 357 (1978), with Justice John Paul Stevens casting the deciding vote.

But still, what the heck.  If this is what the defense bar and some of the bench think, is there something that could be done to address their concerns?

You bet.
Give them what they say they want  --  trials.  

Every time.

Absolutely nothing in the Constitution requires the prosecutor to offer a bargain, and, since that option has proven to be so terribly unpopular, I suggest we eliminate it. We could start on a trial (as it were) basis. That is, one jurisdiction or another could announce that for, say, the next six months or a year, every defendant is going to trial on the indictment as written. No offer will made, and none accepted. No prosecutorial "threats."  No extortion by politer names. No sitting down at the table.  No deals. Trials, period.

We could undertake this experiment in several states (the joys of federalism!) and/or in federal districts here and there, for a period of years, to see how judges and the defense bar would react to the banishment of this instrument of oppression, this lazy expedient that has made the Framers' designated mechanism for the resolution of felony charges all but extinct.

I have a few predictions.  

From the judges: "The prosecutor, in a reckless if not unhinged abuse of his discretion, has decided to offer defendants no leniency by way of bargained for charge reductions, to insist on the public shaming of a trial in every case, and, worst of all, to cram my docket to the breaking point so that I can't even do my ABA speeches anymore."

From the defense bar: "As usual, prosecutors are into their Puritanical fantasies, and yearn to go back to the Puritan system.  We all know our country can't afford to try every case; a decent regard for the public fisc demands that prosecutors stand down from this insanity.  And even worse, prosecutors have walked away from what little humanity they used to show  --  on occasion anyway  --  and now want to stick it to every defendant every time.  What happened to the days when prosecutors knew that a willingness to make a deal was the path, not only to frugality, but to compassion?  It's extremely unfortunate they've decided to ignore what, with our help, they used to know:  Plea bargains are the only way a humane system can work."


Refusing to plea bargain in certain cases was instituted by Rod Pacheco in Riverside County, CA. Perhaps those who were there can share whether the reaction was as described above. I suspect so.

I agree with you Mr Otis. Bring it on.

I have always thought that the entire defense bar, should, in toto, always demand a jury trial. If only two percent of current cases go to trial, then a regime of no plea bargaining would increase the number of jury trials forty five times! Imagine that, forty five times as many trials! No criminal court in the nation could handle the caseload that would ensue and prosecutors would be much more likely to pursue cases that have the highest likelihood of a speedy conviction based on the merits and the evidence.

jardeniro --

I sincerely hope my proposal for experimentation among the states gets a tryout, but I have my doubts.

The current system that overwhelmingly uses bargains instead of trials is in place because of three very, very strong factors.

1. Economics. Neither the country, the judges, the prosecutors nor the defense has the money to take all but a fraction of the cases to trial.

2. Ease. The judges don't want to work 16 hours a day, the defense lawyers don't want to see their clients go down for the whole rap, and the prosecutors want their work wrapped up quickly and "well enough" to satisfy themselves that, even if they left a lot on the floor, they honestly did what their resources allowed.

3. Rough justice. The fact that virtually all defendants are factually guilty for the crimes they get convicted of under plea bargains is the 800-pound gorilla in the room. Although defense lawyers shriek (because God builds them to shriek), they know, as does every other actor in the system, that what's going on, while rough justice, is still justice. Since prosecutors' dockets are just as overstuffed an anyone else's, they have a strong incentive to settle cases on the cheap, and this is exactly what happens. "On the cheap" means the defendant gets a sweet deal, so he'll sign quickly and get out of there. This may not serve the ideal of accountability very well, but, until the taxpayers pony up more for prosecutions than they do now, it's the only way the ADA's can cope with the volume of cases.

Defense lawyer whining about bargaining is a fraud (what else is new?). If prosecutors actually started demanding trials, the defense bar would go ballistic, fuming that what tiny amount of slack the system ever gave their clients had just been stomped out by the Arrogant, Self-Satisfied, Priggish, and Very Big Meanies.

Civil attorney here...to me this is analogous to settling any civil litigation matter - I make an offer which I know the other side won't accept, they counter at something I won't accept, and we repeat the process till we get to something that works. Of course, there are times where we end up going to trial, but that is the exception as trial is costly and for the most part a crap shoot.

Now of course, in the rare situation I have a case where I think I have a winner, I might bargain a little harder (or if I think I have a loser, more willing to capitulate).

I surmise it is somewhat similar in a criminal context. I don't really see what the problem is -

That being said, in my criminal procedure idiocy, is there some equivalent of a Motion for Summary Judgment in criminal so criminal defendants could theoretically get "trumped" charges dismissed well in advance of trial? That is usually a big negotiating tool out here in civil universe.

There is the ubiquitous pre-trial motion to dismiss, but it hardly ever gets granted.

One of the big differences between civil and criminal litigation is that, in the latter, prosecutors get to pick their cases. Prosecutors don't have a "client" in the usual sense, i.e., someone paying the fee to press a case no matter how lousy it is.

Prosecutors have more potential cases than they can handle, so they can walk away from the dicey ones and take the low-hanging fruit. This is the basic reason prosecutors win almost all the time, via guilty pleas or trials. If the evidence is shaky or the legal theory problematic, the case gets left on the editing room floor.

In civil work, one side or the other is going to have an uphill climb -- either that, or you can have a case where the evidence is in equipoise. That almost never happens in criminal law. If the prosecutor sees that the evidence is less than ice-cold, the case never gets indicted, and you just move along to the next case where the evidence IS ice-cold.

This also explains why there is so much defense lawyer grousing about guilty pleas being "extorted." They would like to pretend that the prosecutor is just a heartless SOB. The truth is that the prosecutor can drive a hard bargain because the evidence against the defendant is overwhelming; no one has much of a doubt about what would happen if the defendant were crazy enough to demand a trial.

Thanks for the clarification - the calculus is definitely different. Most civil cases that approach trial are usually of the 60/40 variety. Those are the hardest to settle.

I don't see a criminal analogy as if I understand correctly a prosecutor would be unlikely to pursue a case with a 40% chance of conviction.

The rare civil "slam dunk in either side usually settles quick or dies in summary judgment

The section of the defense bar I work for does appeals, so I guess I can't speak to the trial attorney perspective on this, but I'm all for trials for everyone. Of course judges will hate this. I read plenty of transcripts where judges complain about how full their dockets are and how long pretrial motions and trials are dragging on, and this is in our current plea-bargain-heavy system. And the voters won't want to pay for more judges, prosecutors, and public defenders. But I think we'd have a fairer system, even if 99% of defendants get convicted anyway.

Currently we have essentially two sets of laws and penalties that apply to the same conduct. First you have the actual laws that e.g. make it a felony punishable by up to eight years in prison to commit theft while using force. This set of laws can make one criminal scenario result in a plethora of charges, e.g. if the thief resists arrest and assaults an officer on the way out the door. Defendants who go to trial are found guilty and sentenced under this set of laws.

Second, you have the set of lesser offenses prosecutors can substitute for the actual laws a defendant violated, with corresponding lesser sentences. This system also not bringing charges for all the crimes the defendant committed. Those who agree to plea bargain are subject to this set of different set of laws. So the thief in the earlier example gets sentenced to theft without the use of force element, with a max sentence of a couple of years.

I think this second system undermines democracy by taking power aware from the legislature to determine how certain defined criminal conduct should be punished. The state legislature decided that someone who uses force while committing theft should face up to 8 years in prison. It also decided that resisting arrest and assault of an officer are illegal. If everyone got trials, prosecutors would presumably listen to the legislature and charge every offense they could prove. If the defendant obviously used force while committing theft, he'd be found guilty of that and sentenced for it. This seems preferable to our current system where prosecutors decide to pretend the defendant didn't use force so that the court can apply different penalties than those mandated by the legislature for the defendant's criminal conduct.

While this would of course initially result in a huge increase in the severity of sentences for defendants, it would also return the power to the legislature to actually define the penalties for proscribed conduct. I would think you'd be all for this, Mr. Otis, since allowing the people to set minimum sentencing standards through mandatory minimums has been your cause célèbre as long as I've been reading C&C.

My apologies for the length of this comment.

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