Almost everyone pleads guilty to a crime when prosecuted. Some estimates place those pleading guilty, rather than facing trial, at more than 90 percent of all cases. In order to force defendants through the plea bargaining machinery, the law accepts outright hypocrisy. You can, for example, plead guilty to an offense while not admitting your guilt. That’s what is known as an Alford plea.
Plea bargaining saves the criminal justice system the time and expense of a full-blown trial.
But is plea bargaining good for the criminal justice system?
The reliance on pleas to resolve criminal accusations is weighted heavily in favor the state. Prosecutors have a great incentive to over-charge a defendant, effectively “throwing the book” at the accused. The practice of charge bargaining involves a prosecutor’s agreeing to withdraw serious charges in favor of a plea to lesser counts. No judge has supervisory authority over this not-so-subtle form of extortion. Plea bargaining is justice’s black market.
I understand the argument that a plea bargain is just that, a bargain offered in exchange for an agreement to enter a plea. But if the cost of the initial charge is massively inflated, the plea doesn’t represent a bargain.
The practical effect of plea bargaining is to hide the so-called trial tax from public view. It is understood among practitioners of the dark arts of criminal justice that should you decide to hold the state to its burden of proof, you will be punished more severely if a jury of your peers find you guilty. Of course, if you are found not guilty, there is no tax, but, why, if we are serious about the presumption of innocence, are we content to punish people who insist upon taking the presumption seriously?
I’ve a proposal that will draw nothing but scorn from criminal court judges and prosecutors: I say that once plea bargaining has reached a terminal point, place the last best offer to resolve the case in a sealed envelope. Then try the case to a verdict. If the defendant is found guilty, impose the sentence considered a fair, just and reasonable sentence in exchange for a plea of guilty. This would effectively eliminate the trial tax.
Insiders will scoff at this suggestion. What incentive will there be to defendants to plea guilty?
Why should there be an incentive to plead guilty? Doesn’t a system that creates such incentives treat the presumption of innocence as a mere afterthought? Are we serious about the venerable Supreme Court dicta that it is far better that 10 guilty men go free than that one innocent man be convicted?
Think of he cost, some will say. Plea bargaining saves the state money. If we had more trials, there would be more delay, more expense.
That assumes that there is a fixed quantum of prosecution that is necessary and just. But heavy reliance on plea bargaining relieves the state from the responsibility of deciding which violations of the law are actually worth the expense of prosecution. In a criminal justice system that abdicates all judicial responsibility for oversight of prosecutorial charging decisions, a little market discipline might go a long way.
There’s a reason Lady Justice wears blindfolds in court — she’s not supposed to know who places evidence in justice’s scales. But she is not supposed to be deaf, dumb and blind to what is going on in the courts.
Defendants ought not to punished for electing to go to trial. A system that tolerates a trial tax is a system content to deliver miscarriages of justice.
Norm Pattis is a criminal defense lawyer and civil rights attorney in Bethany. Most days he blogs at www.pattisblog.com.