Putting Plea Bargaining in Perspective

One criticism of plea bargaining is that it leads to innocent people being convicted.  There is a public example that shows how. 

Imagine you are a lawyer for one the Duke lacrosse defendants.  The district attorney presents you with this deal: "Your client pleads to a misdemeanor.  If he behaves himself for 12 months, we will expunge his record."   If you were a lawyer for one of the accused, would you take the deal?

Before you yell out, "I would never tell an innocent client to plead guilty," consider this: If you refused the deal and went to trial, your client could face years in prison and would be required to register as a sex offender for the rest of his life.  Is going to trial worth the risk?

I do not know a criminal defense lawyer would wouldn't say something like this to his client: "It sucks.  It's not fair.  We will likely win at trial, but the risk is too great.  What if we get the only 12 people in Durham who believe you're guilty?" 

Do you now see the problem with plea bargaining?  It has turned our system into one that is supposed to convict the guilty and free the innocent into a risk-management system.   It has turned lawyers into actuaries .  "Is going to trial worth the risk?"  is what lawyers ask clients.  Innocence has little to do with the decision to take a deal.

Comments

[Windypundit]

So what's the alternative? Prohibit guilty pleas and make the state prove every crime?

[Mike]

Yes. If that would take too much time, then then the state should hire more prosecutors.

[S.cotus]

Or prosecute less people. Or criminalize less stuff. So many choices !

Maybe a middle ground would be to require more meaningful “change of plea” hearings. In the military these are called “Providence hearings.” (Even if they are outside Rhode Island – go figure.) The results of these hearings are reviewed directly by the service court of appeals.

[markm]

Windy: Require the prosecutor seeking a plea bargain to set a maximum sentence sought at trial*, and limit the sentence reduction from plea bargaining to 25% off of that.

*Yes, that would require giving the prosecutor a bit more power over sentencing. It's a big change in theory, but not much of a change in practice; since current laws allow most criminal acts to be charged as several different crimes, prosecutors who decide what crimes are charged usually have more influence on the sentence before conviction than the judge after does conviction.

[Brad]

In the military we do a providency inquiry, which means that the defendant must convince the judge that he or she really is guilty and that the defendant doesn't have any legitimate affirmative defenses.

In practice taking a dive at a court-martial is a two (or more) hour event. The defendant pleads guilty, and the judge asks if the defendant's plea is part of a Pre-Trial Agreement. The defendant is then instructed on his or her rights and the justice process. After the Judge does that, the defendant is asked to affirm he or she still wants to plead guilty. If the defendant does the judge then spends a good amount of time questioning the defendant on the facts, stipulation of facts, every element of the offense, and potential affirmative defenses. Only after the judge is satisfied that the defendant really is guilty, the the defendant has no affirmative defenses, and that the defendant is knowingly pleading guilty does the judge announce that "I accept your guilty plea."

Though the judge might know the plea is in consideration for a sentencing deal, he doesn't find out about the limits on punishment until after the defendant is sentenced. At that point the judge then limits his sentence, if necessary, to comply with the PTA. So in the military what we really have is an agreed upon sentence cap - but the defendant can "beat the deal" and if he or she does the adjudged sentence will be the one the defendant serves.

If the judge finds the facts, defendant's knowledge, or potential defenses don't support a guilty plea, the judge will reject the plea and docket the case for a contested trial.

Does this system work well for the military? In some respects yes, and some respects no. We don't have any provision for expunging a record - so a conviction is a permanent record. And our system discourages horse trading for efficiency or risk-managment purposes (like the hypothetical Mike talks about above). But we also don't get many innocent people pleading guilty just because they are risk adverse.

As a practical matter, I doubt many civilian systems could do anything like what we do - they have too many cases and too little assets. Y'all just don't have time to spend 2-4 hours on a guilty plea, and then run the risk of being ordered to trial because your client is too dumb to get through providency.

[atlantalawyer]

I'm not sure I can come up w/a systemic fix, but too many state court judges punish folk too harshly for going to trial. Take the case of Pete Williams who was just exonerated in Fulton Co. Ga. He was sentenced to 45 years in prison after being convicted by a jury of a rape he didn't commit. The actual perpetrator pled guilty to a rape and a sexual assualt w/similar MO's w/in a few weeks of the rape in question. He got 4 years altogether for those two crimes, just because he didn't go to trial. The only evidence against Pete Williams was eyewitness identification. When that was raised at Pete's sentencing, the judge responded "It's the best case of eyeball identification I've ever seen" before sentencing him to 45 year. Pete served 22 of the 45 before DNA testing proved his innocence.

[Randy Cadmus]

I am researching a case where he took an alford plea and had a providency hearing. 1. do any states have providency hearings? and 2. wouldnt that be an oxymoron considering the defendant took an Alford Plea... just wondering.

[Sarah Howard]

My husband did not take aplea bargain because he is completely innocent and he went to trial. Unfortunately the jury found him guilty. Would the government offer him another plea bargain if he appeals or has a mistrial? And would it happen after they sentence him or before?

[bridget cadmus]

Randy Cadmus!!! Daddy!! hahaha im at school and i looked you up!! It's bridget dad. hahaha this is so cool. I didn't know you knew how to comment a blog!! sweet. you comment on a lot don't-cha?

[bridget cadmus]

Mrs. howard, i know i'm only a minor but i wish to offer you a few words of advice, just keeps fighting the system. Dependingon the seriousness {did i spell that right??} will determine how long the prosses will take and before sentencing he will be put into custody if it is a serious crime. if not he should be allowed to go home. Just fight the man. the goverment needs a change anyway. hope i helped some. it's hard being so young and not understanding alot. good luck to you and i hope thing work to your favor. no one should be punished for the stupidity of the system. freedom to your hubby!! hahaha