I'm not sure that you have represented the plea-bargaining process correctly. Certainly there are cases when the prosecution offers a plea bargain early on, in order to free up resources, but defense attorneys do have a fair bit of discretion as well.
In general, if jail time is on offer, it would be foolish for an innocent defendant not to engage an attorney.
Thing is, what exactly is the alternative? In a society where lawbreaking is extremely rare, prosecutors would not be strapped for resources to try every case. But we don't live in such a society. That is the real problem, not this process.
I'm afraid that that article agrees with me down the line. They don't bring up the issue of actual justice, obviously, but their description of plea deals fits with what I am talking about.
No one is saying that defendants are foolish to accept plea deals. When you are extorted it is often to your benefit to pay off the extorter. And when you are guilty it is to your benefit to get a lesser sentence.
Neither of those arrive at justice, obviously, which was my point.
How are you defining "justice"? If you mean that injustice occurs whenever the punishment somebody receives isn't exactly what they would receive in a jury trial, you are insisting on a standard that is simply not achievable in our society. So the question has to be - what would be better? Let lots of accused people go free for lack of resources? Take all societal resources for jury trials and nothing else?
And even that definition assumes that every jury trial for the same exact case would result in the same exact verdict and penalty (if any).
Well, no, that isn't my claim at all. Indeed my statement would be that the very first thing we need to do is to look for a standard of actual justice. If we do not have one then we are saying that our 'justice' system is essentially a 'make it worth your while not to do what we don't like' system.
So one of the first things I am saying is that if we are actually looking for justice, we need to get rid of 99% of our laws... which would get rid of a lot of our problem :)
But that has nothing to do with plea bargaining. Plea bargaining is a necessary feature of the system we have, and I don't see that getting rid of laws fixes it.
Can you list a dozen laws that you believe that we should eliminate, which regularly send people to prison, who should not be imprisoned?
I will work on the 'dozen laws' later, but for right now...
you rather contradict yourself. If plea bargaining were to be eliminated tomorrow then perforce (because, as you say, it is a necessary part of the system) prosecutors would prosecute a whole lot less. A whole, whole, whole lot less.
They're already doing that in NYC, Philadelphia, LA, San Francisco, etc. I don't see that as an improvement. Prosecuting less just means that lots of criminals are never charged. How exactly does that make the system more just?
Alternative? Well, first of all get rid of 99% of our laws and you will find fewer lawbreakers. It has been estimated that the average professional commits three felonies... a day!
What problem do you see flea bargains as developed to address? As I have pointed out I think they are merely unjust from top to bottom so I’m not sure what problem is being helped by adding injustice to the system.
Having worked in the “Justice System “ for 35 years I have definitely observed first hand what you describe. I have also however, on many occasions, witnessed plea bargains used for those that were definitely guilty of the crime charged but, were allowed to plea to a lesser charge for fear of losing the greater charge in front of a jury. Not always in favor of plea bargains but, getting a bad guy in jail is preferable to him being free to commit more crimes.
Yeah, here is where I think we have our profound disagreement. I realise that this might sound a little hyper theoretical, but I fully believe that every time we pervert justice, we pervert justice. And every time that justice is perverted injustice is done. And injustice being done leads to more crime in general.
I believe that if we focus on the one particular person that we’re eager to get into jail right this second we lose the fact that we’re creating 100 different crimes by our action.
As you point out there is no perfect system for imperfect humans. You can take, what you think, is an iron clad case to court and still have a jury find against you. You never know what a jury will do. I also have major issues with the manner in which defense attorneys are allowed to conduct themselves in court but, that’s another story.
Yeah. I happen to believe that Juries are a bulwark against tyranny.
But I think my case is still more fundamental than you are seeing. I am saying that if we got rid of plea bargains root and branch, we would see some huge changes to the justice system. A lot of unimportant or counterproductive laws would be unenforced or repealed, and we would see more effective prosecutions of those important laws.
Right now no one would want me on a jury. Knowing what I know about the laws and the ways that they are enforced I could never find anyone guilty.
There are without doubt too many laws. Penal law is getting to the point of tax law, massive, unwieldy and no one knows or understands it all.(especially federal statutes) Maybe we agree more than we think.
The plea bargain is a solution to a problem, trials are taking too long.
When the founding fathers enshrined the right to trial by jury into our constitution, the typical jury trial took an hour. The judge would impanel a jury for the day and go through a number of trials.
Since that time in the name of "providing better justice" the lengths of jury trials have expanded and endless appeals have been added. The result was an overwhelmed justice system. Plea bargains developed as a way to relieve the pressure.
So you’re saying that Pete bargains were designed to dress a problem which we caused ourselves. So we have added injustice to the overall problem of the system.
Oh well, I can reassure you there. I don’t think the trials would be any longer, unless you count the non-trials that are plea bargains. And I don’t believe in an endless series of appeals, I believe that the execution should take place immediately after the trial. Or if we do wish to have an appeal it would be an immediate appeal so that within 24 hours the Supreme Court or whoever had to say yeah your knee and the person got executed.
I don’t believe in prison so that would definitely limit the amount that the judicial system would have to do.
I'm not sure that you have represented the plea-bargaining process correctly. Certainly there are cases when the prosecution offers a plea bargain early on, in order to free up resources, but defense attorneys do have a fair bit of discretion as well.
One lawyer posted this summary, which is worth reading. https://aizmanlaw.com/plea-bargain-process-prosecution-defense-attorney/#:~:text=Plea%20bargaining%20requires%20that%20your,of%20the%20prosecutor%20and%20judge.
In general, if jail time is on offer, it would be foolish for an innocent defendant not to engage an attorney.
Thing is, what exactly is the alternative? In a society where lawbreaking is extremely rare, prosecutors would not be strapped for resources to try every case. But we don't live in such a society. That is the real problem, not this process.
I'm afraid that that article agrees with me down the line. They don't bring up the issue of actual justice, obviously, but their description of plea deals fits with what I am talking about.
No one is saying that defendants are foolish to accept plea deals. When you are extorted it is often to your benefit to pay off the extorter. And when you are guilty it is to your benefit to get a lesser sentence.
Neither of those arrive at justice, obviously, which was my point.
How are you defining "justice"? If you mean that injustice occurs whenever the punishment somebody receives isn't exactly what they would receive in a jury trial, you are insisting on a standard that is simply not achievable in our society. So the question has to be - what would be better? Let lots of accused people go free for lack of resources? Take all societal resources for jury trials and nothing else?
And even that definition assumes that every jury trial for the same exact case would result in the same exact verdict and penalty (if any).
Well, no, that isn't my claim at all. Indeed my statement would be that the very first thing we need to do is to look for a standard of actual justice. If we do not have one then we are saying that our 'justice' system is essentially a 'make it worth your while not to do what we don't like' system.
So one of the first things I am saying is that if we are actually looking for justice, we need to get rid of 99% of our laws... which would get rid of a lot of our problem :)
But that has nothing to do with plea bargaining. Plea bargaining is a necessary feature of the system we have, and I don't see that getting rid of laws fixes it.
Can you list a dozen laws that you believe that we should eliminate, which regularly send people to prison, who should not be imprisoned?
I will work on the 'dozen laws' later, but for right now...
you rather contradict yourself. If plea bargaining were to be eliminated tomorrow then perforce (because, as you say, it is a necessary part of the system) prosecutors would prosecute a whole lot less. A whole, whole, whole lot less.
They're already doing that in NYC, Philadelphia, LA, San Francisco, etc. I don't see that as an improvement. Prosecuting less just means that lots of criminals are never charged. How exactly does that make the system more just?
Alternative? Well, first of all get rid of 99% of our laws and you will find fewer lawbreakers. It has been estimated that the average professional commits three felonies... a day!
https://ips-dc.org/three-felonies-day/
And how many people are actually being prosecuted under those laws?
Yes, we should greatly simplify our law codes. No, that won't help with the problem plea bargains were developed to address.
What problem do you see flea bargains as developed to address? As I have pointed out I think they are merely unjust from top to bottom so I’m not sure what problem is being helped by adding injustice to the system.
https://vonwriting.substack.com/p/no-plea/comment/74641117
Having worked in the “Justice System “ for 35 years I have definitely observed first hand what you describe. I have also however, on many occasions, witnessed plea bargains used for those that were definitely guilty of the crime charged but, were allowed to plea to a lesser charge for fear of losing the greater charge in front of a jury. Not always in favor of plea bargains but, getting a bad guy in jail is preferable to him being free to commit more crimes.
Yeah, here is where I think we have our profound disagreement. I realise that this might sound a little hyper theoretical, but I fully believe that every time we pervert justice, we pervert justice. And every time that justice is perverted injustice is done. And injustice being done leads to more crime in general.
I believe that if we focus on the one particular person that we’re eager to get into jail right this second we lose the fact that we’re creating 100 different crimes by our action.
As you point out there is no perfect system for imperfect humans. You can take, what you think, is an iron clad case to court and still have a jury find against you. You never know what a jury will do. I also have major issues with the manner in which defense attorneys are allowed to conduct themselves in court but, that’s another story.
Yeah. I happen to believe that Juries are a bulwark against tyranny.
But I think my case is still more fundamental than you are seeing. I am saying that if we got rid of plea bargains root and branch, we would see some huge changes to the justice system. A lot of unimportant or counterproductive laws would be unenforced or repealed, and we would see more effective prosecutions of those important laws.
Right now no one would want me on a jury. Knowing what I know about the laws and the ways that they are enforced I could never find anyone guilty.
There are without doubt too many laws. Penal law is getting to the point of tax law, massive, unwieldy and no one knows or understands it all.(especially federal statutes) Maybe we agree more than we think.
It sounds like we might have an interesting exchange of posts.
https://vonwriting.substack.com/p/too-many-laws-the-poor
The plea bargain is a solution to a problem, trials are taking too long.
When the founding fathers enshrined the right to trial by jury into our constitution, the typical jury trial took an hour. The judge would impanel a jury for the day and go through a number of trials.
Since that time in the name of "providing better justice" the lengths of jury trials have expanded and endless appeals have been added. The result was an overwhelmed justice system. Plea bargains developed as a way to relieve the pressure.
So you’re saying that Pete bargains were designed to dress a problem which we caused ourselves. So we have added injustice to the overall problem of the system.
The problems was caused by "justice reform crusaders" like yourself demanding that suspects get longer trials and endless appeals.
Oh well, I can reassure you there. I don’t think the trials would be any longer, unless you count the non-trials that are plea bargains. And I don’t believe in an endless series of appeals, I believe that the execution should take place immediately after the trial. Or if we do wish to have an appeal it would be an immediate appeal so that within 24 hours the Supreme Court or whoever had to say yeah your knee and the person got executed.
I don’t believe in prison so that would definitely limit the amount that the judicial system would have to do.