Plea Bargains

Puzzled

So far, I haven’t been too vocal on some of the issues that float around the legal weblog world that are specific to criminal justice. I’ve spent a fair amount of time going into the how of prosecution decision making (i.e. all that stuff on warrants), a little bit on life in my world in the office and in the appellate courts, and some personal stuff. But a couple of things caught my eye and have apparently been churning around in my sub-conscious for a while. So I thought I’d share some thoughts on a prosecutor’s perspective on one of those topics - plea bargains.

Everyone knows what a plea bargain is, I suppose. Technically, it’s when the prosecuting officer determines that a bird-in-the-hand is worth two-in-the-bush and reduces or modifies the already issued charge (or charges) against a defendant in return for a guilty plea to the modified/reduced charge. The term is also used, somewhat loosely, to refer to sentence bargains and charge bargains.

In a sentence bargain, the prosecutor recommends a particular sentence to the court - depending on the state the court may or may not be involved in the negotiation and may or may not be bound by the recommendation. Note: In the federal system, pre-Blakely and pre-Fanfan and/or Booker, it looks to me like the US Attorney can pretty much guarantee a sentence bargain by careful manipulation of the "facts" submitted to the court for sentencing.

In a charge bargain, a potential defendant comes to the prosecutor, before a warrant is issued, and says something like ‘look, I did this thing and you’re going to find out about it. I’ll plead to a charge of {fill in the blank}’ and the prosecutor agrees and issues the warrant for the charge of {fill in the blank} and the defendant pleads guilty, as charged.

So, what’s the deal? Everyone knows about this, and, I suppose, the reasons cited for approving the practice. Heck, Chief Justice Burger even said,

"The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called ‘plea bargaining,’ is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities." Santobello v New York , 404 U.S. 257, 261 (1971).

Well, this.

A while ago, a public defender blogging as Blond Justice posted a note about being a bit too busy to blog because she had been in a longish trial that her client had to do because there was no plea offer. Go here to see the post and the ensuing comments. Apparently this lodged in some hidden recess of what I like to call "my mind," and has been working away ever since. I woke up this morning at an ungodly hour, probably because I’d had two days off and my reptile brain figured it must be Monday! As I tried to return to the arms of Morpheus, one of the comments from that blog post jumped up and refused to leave me alone. So, here I am, at the keyboard, while the world is dark and cold and trying to make up its mind whether to rain or snow, thinking about plea bargains! You can read the initial post and the comments .

Now, what appears to have nestled into my sub-conscious and fermented (festered, you pick) are two things. First, Blond Justice’s comment about her client having no choice but tp do the trial, and, second, the comment "No offer? Shame." Well, three thing. The very first reply/comment about shouldn’t there be an offer to save the taxpayers the cost of a trial, also popped up this morning.

So what, exactly, is it that bothers me about this? I think it’s the sense of entitlement I get. When did the idea that there is a ‘right’ to a reduced charge become the norm in criminal law circles? Around here, it was sometime in the last 10 years or so. When I first started doing criminal law, as a law student intern in 1986, everyone I dealt with, prosecutors and defense counsel alike, knew that there were cases where an offer was routine (e. g. the offer on first offense possession of a personal use quantity of marihuana was almost always plead as charged with a delayed sentence and dismissal after a year’s non-reporting probation - or sometimes reporting if the judge didn’t like the defendant’s looks or something) and there were cases where no offer was the routine. For example, domestic violence, child abuse, destruction of public property, second or greater drunk driving cases. Of course, nothing is absolute in the real world.

The best defense attorneys would fly-speck a police report, maybe talk to a witness or two, and decide how likely a jury conviction was, based on their own experience. Note how much this is like the initial decision by the APA who reviews a warrant request. The difference, in misdemeanor cases, by and large, is that the defense attorney is looking at the case after having met with the defendant and evaluated his or her story first hand. Also, in my town it is not unlikely that the defense attorney will have more experience, sometimes significantly more experience, trying cases than the APA who reviewed the warrant request. Armed with this more intimate knowledge of the case and the client, defense counsel may very well be able to convince the trial APA that a better offer, or a below policy offer might be advisable. But if the APA determined that it wasn’t, no one complained about doing a trial.

When I did my basic course, years and years ago, that if an unrepresented defendant told me he didn’t do it and meant factually he didn’t do it, not that he just didn’t think he was responsible because he didn’t understand the law, I should not offer a plea bargain of any sort because to do so might induce an innocent man to plead guilty! Somehow, I suspect that particular idea may have fallen by the wayside in some jurisdictions. Indeed, raising this issue on appeal hasn’t been all that fruitful. See, for example, North Carolina v Alford where the Supreme Court essentially told Alford "tough luck. If you didn’t do it, don’t plead to it." And, ethics aside, there are other grounds on which to look askance at the whole idea of plea bargains. I’m not all that sure I follow the rational offered by this author , but it’s not all that far out, particularly in the situation the author seems most concerned about - lesser pleas offered to co-defendant’s.

All of which is a bit afield of where I started, isn’t it. I guess what bothers me is the idea that the criminal law has a built in reduction in culpability that a the defendant deserves. In my opinion that way of thinking leads, inevitably, to systematic overcharging by prosecutors is such a subtle way that no one notices until the charging standard slipped from can you prove this charge beyond a reasonable doubt to is it possible you can prove this charge beyond a reasonable doubt to there’s probable cause to charge this, and he’ll plead to this lesser/alternative charge. The de jure standard is still can you prove it beyond a reasonable doubt, but the de facto standard is something less. Not to mention that it doesn’t jibe with my ideas on what the purpose of the criminal law is. But I’m far from the mainstream there, so maybe I am getting worked up over nothing.

Consider this, though. If you do an illegal act, if you hit all the elements of, for example, drunk driving, why should you expect not to be held to account for exactly what you did? Why should your willingness to plead guilty induce me to give you a reduced charge just to avoid presenting the case to a jury and letting the facts be determined by your peers? Isn’t mercy, in the form of mitigating circumstances at sentencing the role of the judge?

And thus we come, by very roundabout means, back to Blakely and role of judges and juries. I suppose some of the urgency about plea bargains can be charged to the morass of mandatory minimum sentences and guidelines that have been forced on judges in the name of getting tough on crime over the years. In my state, at least, none of that nonsense applies to misdemeanor cases, so a judge can still be merciful within the dictates of his own conscience.