Should juries know about plea bargains rejected by those accused of crimes? We currently shield jurors from such knowledge. In most jurisdictions, jurors don’t even have a role in determining the sentence to be imposed if they find a person guilty. That’s the judge’s job, we say. This scrambled process yields something less than justice, and something far less than accountability, it yields an unregulated market in human souls.
Plea bargaining is the dark art of the criminal law. It takes place in secret. In the state system, there are private meetings between prosecutors and defense lawyers where the parties try to strike a deal; in serious cases, judges get involved in these skull sessions.
In the federal system, plea bargaining is quite different. You almost never meet with the a judge to discuss a proposed disposition; the judge plays the role of the great Wizard of Oz, remaining hidden from view, appearing only while bedecked in his robe, in open court, the very oracle of justice itself. Even so, prosecutors and defense lawyers bargain, or horse-trade, all the time in an effort to try to forecast what a judge will do at the time of sentencing.
The overwhelming majority of cases are resolved by way of a plea bargain, with the public seeing only the puppet show the parties quickly put on the record in open court.
Trial gets all the attention; it is a public drama pitting the state, or, as they say in the stylized idiom of the federal courts, the government, against an individual accused of a crime. (Some states, such as New York, call the prosecuting authority The People.) Complex rules of procedure and evidence govern every move at trial, appellate courts ever on the watch for the sort of error that could undermine confidence in a verdict of guilty; in almost no cases at all do the state, the government, the people — choose your locution for this vast fictive entity — get to take an appeal. One of these rules prohibits the parties from letting jurors know about plea offers. Indeed, even the judge presiding over the trial itself is not supposed to know about a plea offer, lest knowledge of what the state thought just before a defendant elected to go to trial should influence what the judge thinks a just sentence should be.
In other words, the just result of a criminal conviction is contingent, apparently, on whether a defendant goes to trial at all. Justice, is a commodity with a value that changes on the semi-private market in human life we call the criminal courts.
Shouldn’t jurors know about that?
Just the other day, prosecutors offered a client a chance to walk out the door if he would but plead to a felony, witness tampering, to be exact. If he plead guilty, the state would commit to a suspended sentence, and the client would face no time behind bars, only the virtual imprisonment of probation. It was a good deal; he faced serious charges, including sexual assault, and a requirement that he register as a sex offender if found guilty.
The client rejected the state’s offer, and the case went to a verdict. He was acquitted of the most serious sexual assault charges, but convicted of a misdemeanor sex charge. (Criminal offenses are classified as follows: infractions, which are not, technically speaking, crimes, carry no risk of incarceration, but merely a fine; misdemeanors yield a potential sentence of imprisonment of up to one year; felonies yield potential incarceration of anywhere from one year to life, or, in capital offenses, death.) He now faces up to 11 years at the time of sentencing, one year for the misdemeanor, and up to 10 years for the witness tampering charge. Bottom line: he’s going to prison on judgment day, the day sentence is imposed. He will be punished more severely as a consequence of rejecting a plea offer.
The jury deciding a case has no input into sentencing, it doesn’t even get to make a recommendation, at least in Connecticut. (Death penalty cases are the sole exception.) Some states, such as Texas, let jurors at least make a recommendation on what should happen. But no state, to my knowledge, permits jurors or judges to consider plea offers rejected prior to trial at the time of sentencing. In other words, all states think justice changes shape depending on whether a person chooses to go trial.
Plea offers are the criminal court equivalent of settlement offers in civil cases. Some schmo plows into your car while texting, and his lawyer, more likely his insurance company, is going to offer you money to make amends. The courts don’t want jurors hearing those offers of settlement for fear that jurors might conclude that only a party who did something wrong offers to pay money. After all, what person offers to pay money unless this did something wrong? And suppose the state offers a sweet deal, won’t a jury conclude that there must be reason to doubt the state’s proof if it learns that the man facing a handful of felonies was offered a walk out the door? Settlement discussions could taint the process of deciding guilt/liability.
There is a simple response to those objections. First, require a jury to decide guilt, or, in civil cases, liability. Once that decision is made, let jurors know what the plea/settlement discussions look like; let jurors hear from the parties what they thought justice required before trial — what, as lawyers say, the case was “worth.”
Years ago, an anguished juror called me. She’d voted guilty in a murder case. Eyewitnesses reported my client, a teenager, had shot a rival in the head at point blank over some trifling disrespect. The juror had just read in the newspaper the young man had been sentenced to 60 years in prison. “Why didn’t you tell me this could happen?,” she asked.
“Because the law would not permit it,” I said.
She understood but remains, to this day, troubled by the outcome. I wonder whether she would also have thought the plea bargain offered, 35 years, was too much?
We truck, barter and trade in human lives in the criminal courts. Seasoned lawyers know the value of a set of allegations, and speak candidly in private about the “worth” of the cases they handle. It is a semi-regulated market, the participants buying and selling liberty much like slave auctioneers. I fail to see why we keep these prices a secret from the very jurors we empower to act in the name of us all at trial. Shouldn’t the people in whose name justice is said to be done have a say in regulating this market once they’ve inspected the product?