Here’s a not-so-modest proposal that will reduce the prison population, improve the performance of the criminal justice system, and yield greater confidence in the administration of what we call, with no apparent sense of irony, "justice." Ready? Eliminate plea bargaining.
If you’re still reading – I could almost hear the "pshaw" of jurists such as New Haven’s Patrick Clifford, who, of course, doesn’t read this column, but yet becomes aware of its contents by a form of judicial osmosis – here’s why plea bargaining is really a form of social cancer.
Jurists like to whinny about the "vanishing trial," yet we are systematically killing trial on the civil side by way of pre-trial motions; on the criminal side, defendants are overcharged, terrified and, often, all but extorted to take a plea. If trial by jury is disappearing, that is because we want to kill it. We do so at the loss of a sense of legitimacy, that odd form of alchemy in which mere power is transformed into a sense of authority.
The overwhelming majority of criminal cases are resolved by way of guilty pleas, whether the defendant is, in fact, guilty or not. The law has erected elaborate charades to make it possible to plead guilty to crimes you never committed. An Alford plea, by way of example, permits a defendant to plead guilty to a crime without admitting he or she committed the crime. Is that justice?
Not long ago, a client of mine read in the newspaper the statutory maximum he faced if convicted of a crime he was charged with, but did not commit. I explained that almost no one gets the statutory maximum. Yet there it was in cold type: He "faced" decades away from his loved ones. He wanted to plead to something, anything, to avoid what he was "facing."
There is no doubt in my mind that had the man gone to trial he would have beaten the case. Indeed, there is little doubt that we would have persuaded a judge to dismiss significant parts of the case at the close of the state’s evidence. The prosecution was a threadbare farce. But defendants in criminal cases lack what is so readily available in civil cases: the ability to conduct some limited discovery and then move for summary judgment. A criminal defendant has to roll the dice at trial, gambling his or her liberty against the sufficiency of the evidence.
Smart prosecutors know this. These same prosecutors also control the decision on what charges to file against a defendant. No judge supervises these charging decisions. Hence, the incentive for prosecutors to overcharge, publish the warrant or indictment, and then let the press scare the wits out of a defendant by reporting on the worst that could possibly happen.
If we eliminated plea bargain and required prosecutors to try the cases they charge, they would be more parsimonious in the charges they bring. It’s one thing to accuse, another to convict.
Wouldn’t that result in fewer prosecutions in a world of scarce resources? Yes. And who’s to say that would be a bad thing. Prisons are one of the few growth sectors in a bad economy, and we incarcerate, in this the Land of the Free, a higher percentage of our population than any other nation on Earth. When everything is a crime, everyone "faces" time. That’s wrong.
Forcing cases to trial could yield a greater sense of legitimacy in the community at large. Let juries nullify the law when they think it is misapplied. If we are trying to hold people accountable for the sake of the community, then why silence the community when it matters most?
Plea bargaining always takes place in private discussions either with the judge, as is done in the state system in Connecticut, or between the parties, as is done in the federal system. What is presented in open court is the result of a secret process. We talk about transparency in the criminal justice system, but then hide the manner and means by which most cases are resolved from the public. No wonder the criminal justice system is regarded by many as the moral equivalent of an alien power in our midst.
The prosecution of a person for a crime should be an extraordinary event in the life of a healthy society. Yet today prosecutions are routine, the prisons are full, we are feeding upon ourselves and we wonder why trials, once the showpiece of our criminal justice system are vanishing.
Why not place a moratorium on plea bargaining for a decade or so. My hunch is that we would be no worse off that we are now. In fact, it might yield an improvement in the form of fewer prisons, more confidence in the criminal justice system, and greater accountability by prosecutors.
Think about it. Don’t just reject this altogether immodest proposal because it is at odds with that we do now. What we’re doing now isn’t working. It’s time for radical change.
Reprinted courtesy of the Connecticut Law Tribune.