Mimesis Law
23 March 2019

Pleading Dirty: Do Plea Bargains Corrupt The System?

June 1, 2015 (Mimesis Law) — There are lies, damned lies and plea bargains.  Cleveland, Ohio, of all godforsaken places, has become a hotbed of challenges to the routines of the criminal justice system.  After the killing of 12-year-old Tamir Rice, the Brelo acquittal and the Department of Justice report on the pattern and practice of excessive use of force (the settlement forbids cops from pistol whipping people, especially when cuffed), people are starting to ask questions.

One question resolves around the efficacy of plea bargains, one of the dirtiest deals in the criminal justice system.

Cuyahoga County Common Pleas Judge Michael Donnelly has been mounting a crusade to change statewide rules that govern how plea deals work.

Donnelly and other judges, lawyers and ethics experts argue that all plea deals should be made in public – not a backroom — and truthfully reflect the crime that occurred.

Anything less corrupts the justice system and prevents the community from assessing how dangerous a person could be.

The practice of lying in court about pleas has “become so ingrained people think there isn’t a more honest way of doing it,” Donnelly said.

“I don’t think that’s what the public wants,” he said. “They want some level of accountability.”

Well of course they do, Judge. They also want rainbows and unicorns, but I digress.

According to Donnelly, the choices should be simple: negotiate plea to a charge that reflects the crime committed, go to trial or drop the case.

Everything should be simple. Rarely is that the case.  Plea bargains reflect the confluence of two independent questions.  The first question is whether a defendant committed the crime charged, or a lesser variant.  In other words, is he guilty, and if so, of what.

The second question is what are the appropriate consequences for the crime that was, in actuality, committed.  Note that it’s not necessarily punishment, though few recognize that retribution is but one of the legitimate factors that should be considered in sentencing.

Plea bargains conflate the two issues, playing one off against the other.  Plea bargains reflect the most cynical view of the criminal justice system possible, that the threat of draconian punishment coerces a person to admit to the commission of a crime he didn’t commit to avoid the possibility of excessive consequences.

This isn’t a defense lawyer’s biased view, but a hard core argument by prosecutors as well: without the threat of life plus cancer, how will they ever get anyone to cop to jaywalking?

But what isn’t asked, at least not by those with sufficient juice to make a difference, is why prosecutors are all too happy to offer a remarkably reduced consequence to someone who is willing to cut a deal.  Sure, it saves the prosecution from having to suffer the drudgery of trial, thus preserving resources that could otherwise be expended on some other guy’s plea bargain, not to mention the risk of losing at trial.

But if a defendant is believed to have committed a murder, carrying a sentence of life without parole, what aspect of the legitimate goals of sentencing is served by agreeing to a one year sentence?  If the guy is a killer, then he shouldn’t be given a slap on the wrist.

The backside of this Faustian bargain is that plea bargains are a way around the draconian sentences that are sold to the public in headlines that speak to potential sentences of 7 billion years, when you calculate the maximum sentences for each alternatively charged crime, add them up consecutively, then multiply by ignorance, because that’s not how it happens in real life.

So who wouldn’t want integrity and transparency in the criminal justice system?  Who wouldn’t want innocent defendants to walk free, and guilty defendants to be sentenced appropriately?  Who wouldn’t want purpose and rationality returned to a system of consequences that has come to reflect little more than blind outrage rather than a societally purposeful resolution?

Why, that would be everyone involved in the system.

Those limitations on plea deals are impractical, according to many criminal justice system players, including prosecutors, defense attorneys and some judges.

Strict rules would clog the system, they say.

The changes would, “substantially complicate life for both prosecutors and defense counsel and will contribute little, if anything, to the integrity of the process,” Ohio Prosecuting Attorneys Association Director John Murphy said in an email to an Ohio Supreme Court.

Whether it’s true that changes to plea bargains would “contribute little” to the integrity of the system is a dubious assertion, there is no question that the wheels of justice continue to grind because of plea bargains.

Without this shortcut to perdition, the system would either collapse or require a ten-fold increase in resources to deal with the mass of trials.  After all, no one would ever take a deal when they could go to trial, maybe win, and get the same sentence afterward.

Does that make Judge Donnelly wrong in his assertion that plea bargains are dirty backroom deals that undermine the integrity of the system? Not at all. But without these dirty deals, the system would fail to function, which is a manifest problem with the integrity of the system itself, whether due to plea bargains or not.

We survive on facile platitudes like “it may not be perfect, but it’s the best system there is,” so we can sleep at night.  And plea bargains are the foundation of this system, as it’s currently constituted.  Hate them all you want, but without them and the coercive and irresponsible outcomes they cause, we would have no system at all.

Main image via Flickr/Emmanuel Huybrechts

3 Comments on this post.

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  • Wrongway
    2 June 2015 at 1:40 am - Reply

    Hugs & Belly Rubs ..

  • John Neff
    2 June 2015 at 11:41 am - Reply

    As an outside observer I wonder if plea bargains lead to overcharging.

  • Dyspeptic Curmudgeon
    5 June 2015 at 9:17 pm - Reply

    @john: Of course. That is the leverage. Face a near certain chance of say 25 years for murder or plead to something relatively equal to jatwalking, and get a year.
    What would even things up would be a requirement that plea bargains and conviction terms be on a say 2:1 ratio. The DA can offer 5 but then a trial conviction can be no more than 10. That is, the downside risk is not infinite, but only twice the offer. Similarly for offers to co-defendants. And the offer must be made to all. It hardly upholds the ‘majesty of the law’ to let one bad guy walk when the reason for his walking is in effect his confession that he actually is that bad a guy.