The Dark Side of Justice: Plea Bargaining

“You are confusing me,” he said. “You’re telling me I should really consider the state’s offer, and that you are ready to go to trial. Which is it?”

We were standing on the courthouse steps. Jury selection was set to begin in less than an hour. The client had been made an offer of several years in prison in exchange for a guilty plea. If we tried the case to a verdict, and lost, he could serve a decade or more. The evidence against him was overwhelming.

“Both,” I replied. “My job is to advise, yours is to decide.”

Plea bargaining is the dark underbelly of criminal justice. Most cases end with a guilty plea of one sort or another. Only a handful of cases actually go to trial, and the prosecution wins the overwhelming majority of verdicts.

I worry that clients and their families don’t understand plea bargaining. Criminal defense lawyers marvel sometimes at self-destructiveness. You can tell folks that the odds of conviction are overwhelming; they should cut their losses with a plea. But some folks can’t face the catastrophe their lives have become. They hold out for a better bargain, or for the hope that a jury will forgive what the law condemns.

Would you ignore a tumor?

If prosecutors have probable cause to believe a crime was committed, and that you are the person who committed it, you may well be arrested. All at once, you stand in front of a judge, with a lawyer at your side, and plead not guilty.

The tools a lawyer can use to discover what a case is all about differ greatly in the state and federal courts. In general, however, defendants can file a series of motions requesting that the court order the government to provide information. During the course of these proceedings, the lawyers get to talking about what can, and cannot, be proven. A creative lawyer wheedles away at the prosecution every chance he can get, always looking for an angle, an edge, a means of pushing back.

Given enough time, in most cases experienced defense lawyers and prosecutors can reach a rough agreement about what a compromise might look like. Sad as it sounds, the criminal courts resemble a marketplace, this one trading in human suffering. After a decade or so, lawyers know the going rate for a given set of accusations. The price is measured in years. The government will agree to reduce or eliminate certain charges, if the defendant will plead guilty to what remains. The benefit to the defendant is avoiding the risk of getting hurt far worse at a trial, should he or she lose.

Sometimes, but only rarely, the government will drop charges altogether. I will never forget the stunned look on two brothers’ faces when I walked them out the door of the courthouse still dressed in their prison smocks after the state agreed to drop murder charges against them.

In cases involving serious criminal allegations, the choices an accused person must make are almost always awful. Young men accused of murder might be offered a chance to plead to 30 or 35 years in prison; lose that same case at trial, and the man child might be sentenced to 50, or even 60 years. Try explaining to a 20-year-old that there’s life at 50.

Sometimes, the choices seem easy to the lawyer, but are impossible for a client to make. The state might offer a suspended sentence in a difficult case, if the client will but plead guilty to a felony. But the client cannot face a felony conviction. So he rolls the dice on a trial that will result in a sentence of many years in prison if he loses.

Plea bargaining is unlike a trip to the used car lot, where both buyer and seller are free to walk away unless just the right terms are struck. Yet many clients regard plea bargaining as a trip to the market. “Try again,” some say. “Get me a better deal.” Kicking the law’s tires will sometimes work wonders.

But more often than not, there is a limit to what creative lawyering can do. Plea bargaining is not like a trip to the mall, where you needn’t buy anything if the price isn’t right. A better analogy is to regard plea bargaining as akin to being tied to railroad tracks. There is a locomotive bearing down on you. What will you give to derail it?

Some clients seem to care a great deal whether their lawyer believes they are innocent. I’ve never understood that. Innocence is God’s problem; mine is the protection of a defendant’s prospects on this earth. Trial is always risky, and it should be avoided if it can be — ask all the men and women who have been exonerated after conviction about whether the truth set them free in their initial trial.

There are times trial is a necessity. Sometimes, the state simply wants too much from a defendant. You calculate that even if you lose the trial, you can do better pleading for mercy from the court than you can by begging a prosecutor for justice. And sometimes, the state is just dead wrong, and you know it, but cannot get the state to listen. So you gamble on a jury’s willingness to follow the law. But placing a client’s life in the hands of the jury is always a gamble.

Too often trial is driven simply by terror and an inability to appreciate just how horribly wrong things can go in the instant a jury utters the word “guilty.” I’ve seen folks undone by that word, all at once wishing they could take the offer they were made before trial. Once a jury returns a verdict, however, the state rarely retreats to its pre-trial offer.

Why does the prosecution insist on charging a tax measured in years of a man’s life when a defendant chooses to go to trial? I wish judges were required to impose the last best plea offer as a sentence after a conviction. Justice doesn’t change, does it? The fact is, folks are punished more severely if they go to trial and lose, thus making even darker the shadows hanging over the plea bargaining process. Bargaining with a gun pointed at your head is only permitted in the courts, where justice is said to be done.

Also listed under: Journal Register Columns

Comments: (1)

  • Abolish it
    Plea bargening is an abomination. It violates the presumption of innocence to offer different charges and punishments depending on pleas. It should be abolished. I don't think they have it in England. When did we introduce it?
    Posted on June 27, 2013 at 9:31 pm by James

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