Plea Bargaining as a Pathological Practice

One of the best scenes in “The Wizard of Oz” is when Toto, Dorothy’s dog, pulls back the curtain on the Great Oz, exposing a terrified man hiding behind his fearful machinery. One lesson: Appearances are deceiving.

I thought of that scene the other day as I read the Connecticut Supreme Court’s decision in a case called State v. Elson.

Mr. Elson isn’t the sort of guy folks rally to support. In 2004, he got liquored up and went on a rampage after a coed at the Western Connecticut State University rebuffed his romantic advances. He assaulted the victim with a knife, causing her serious injury.

At trial, he was convicted of assault in the first degree and unlawful restraint, a lesser form of something like kidnaping. He was sentenced to serve 20 years in prison. Although Mr. Elson apologized to the victim and her family at sentencing, the trial judge was unmoved. “I don’t know how sincere it is,” she said of the apology, “but it certainly comes so late in the process. If the defendant had been truly apologetic, he wouldn’t have put the victim through trial.”In other words, the judge appeared to be saying to the defendant: If you’re sorry now, you should have been sorry before your trial.

Ten years of appellate litigation followed, with two trips to the Appellate Court and a final stop in the state Supreme Court. Earlier this month, the Supremes sent the case back for resentencing. Why? Because public confidence in the integrity of the judicial system might be undermined if it were perceived that the defendant was punished for exercising his right to a trial by jury.

The wizard is blind.

You can read the Elson decision multiple times without ever seeing reference to the term “plea bargaining.” The justices on the U.S. Supreme Court see more clearly. Our criminal justice system is, the wizards of Washington wrote, “for the most part a system of pleas, not trials.”

The justices noted that nationwide, 97 percent of federal convictions are by way of a plea.

In Connecticut, 95 percent of convictions are by way of a plea, according to the Elson decision. Even on the civil side, where all that is at stake is money and honor, judges bemoan the “vanishing trial.”

Why do you suppose so many people plead guilty?

It is because many of them know that going to trial and losing will result in savage penalties: in other words, whether actually guilty or not, many defendants plead guilty as an act of desperation. The criminal justice system depends on it. In some courts with busy dockets, judges make a point of sentencing folks early, when everyone else is watching as they wait their turn before the court. Why? Scare ’em, and they’ll plead.

You won’t find many judges who will admit this, however. And you, as a member of the general public, will never be invited into judicial chambers where the lawyers meet with the judge to hammer out these sordid deals. If you saw the machinery of justice up close and personal, it would sicken you. Plea-bargaining is trucking, bartering and trading in human misery.

So spare me the unctuous regard for public perception of the integrity of the judicial system. We don’t want the public to know what goes on. We want to boast about how fundamental the right to a trial by jury is. We prefer illusion to truth in this the best of all possible Oz’s.

In the Elson case, the Supreme Court used what it calls its “inherent supervisory authority” over the administration of justice in the courts to send a message to trial judges statewide: Don’t place on the record hostile comments about a defendant’s decision to go trial when you sentence him. That could, as the court turgidly wrote, have “adverse implications on the public’s perception of the procedural fairness of the criminal justice system ….”

In other words, if we let everyone know that folks get punished more severely when they go to trial, people might get upset. The Sixth Amendment right to trial is supposed to be fundamental.

A client of mine not long ago was offered seven years in prison if he would enter guilty pleas to a series of offenses. He couldn’t face the time. A jury convicted him after trial on some, but not all, of the charges. The same judge thereafter offered my client another deal: take 14 years to wrap up all the cases.

“How did he get twice as bad after going to trial, judge?” I asked.

I got no principled answer I could understand. “You are imposing a trial tax,” I said.

The judge denied it. He claimed that a pretrial offer was a “discount.” A client taking a plea gets the benefit of his plea.

Huh? A discount off what value? When all but a handful of cases are settled by way of a plea, the “value” of an offense in human liberty is determined on the market where those transactions take place — the secret discussions in chambers.

Experienced lawyers know how to estimate the value of cases. I’ve played the following game with prosecutors during plea negotiations: We each write on a scrap of paper what a case is worth, knowing the anticipated evidentiary problems, the nature of the offense, the strength of the witnesses.

In an uncanny way, our numbers are typically similar. That’s the market talking. Lawyers, like used-car dealers, know what they have to sell.

The rare guy who goes to trial and has the misfortune of losing gets hammered as a warning to others. That’s the way the system works. Pretending otherwise fools no one.

The real danger in the Elson decision is it will serve as a warning to judges to keep their thoughts to themselves. The public, and defendants, will know even less about how the criminal justice system actually works. And the rest of the world will laugh at how the “land of the free” makes a mockery of justice.

I hear Toto barking in court most days. He wants a piece of Oz.

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