The Constitution, Plea Bargaining and Justice

Trial by jury is “enshrined” in the Constitution as a part of the Bill of Rights.  In order to suggest the importance of criminal-trial rights, I refer to Lavrentiy Beria, chief of Soviet Union’s security and secret police in the 1940s until 1953. He said, “Show me the man and I will produce the crime.”  Plea bargaining might result in some benefits to society, but I don’t believe the Founders would compare them to trial by a jury of peers.  Criminal plea bargaining occurs mostly in courts of original jurisdiction of cities, counties, and states.  The Supreme Court condones it, but it never occurs there.  A dark side of a “plea-deal” offer by prosecutors is they are known to add on charges against defendants for the purpose of adding to defendant’s risk of lengthy jail-time, if convicted. The intent is to change a defendant’s analysis of his risk-reward probabilities in a trial, even if the defendant believes he is not guilty.  It takes courage and money to risk going forward to trial.  Prosecutors may offer plea bargains rather than risk defeat in trial. Not that they will let the defendant know of their uncertainty.  The numbers prove the point; ninety-five percent of criminal cases moving through the courts will not go to trial by reason of plea bargain agreements. They can be sought by either the plaintiff’s attorney or the prosecutor.  Society obtains only a single positive result, and it is not better justice.  It reduces the court’s backlog of trials.  The negatives, all include injuries to society, are:

1.   Citizens are not called for jury duty, an important citizen responsibility and a learning opportunity to see government and justice in action.  (A worthy learning experience for the poor, who rarely see “equality before the law” in action.)

2.   Innocent people become saddled with a criminal record, and more serious guilty-offenders get off with lesser sentences. 

3.   Prosecutors in many jurisdictions are elected, and will use plea-deals as resume-builders for their re-election.  This is not a healthy motive, and may really show a lack of ability to obtain an honest conviction.      

4.   When crimes are not prosecuted in court, judges never hear about matters pertaining to police misconduct, but prosecutors may know about illegal searches and seizures, witnesses that are unsure of the facts, and even prosecutor misconduct, such as not revealing exculpatory evidence to the defendant.  

5.   The plea-bargained conviction is still as much a criminal record as a trial conviction and equally often results in inability to work, vote, find a woman to marry, and worse.  

6.   The “nightmare scenario” is the defendant who is innocent and claims so, but agrees to a   plea bargain. That may show the judge the defendant lacks remorse and sentences the crime longer than otherwise.  Similarly, parole boards look for remorse, and claims of unjust imprisonment result in additional jail-time than otherwise. 

7.   Finally, retracting a guilty plea becomes nearly impossible based on the statistics.  Government prosecutors put up fierce fights to maintain “finality of judgments.”  

For innocent defendants, accepting a plea bargain can be making a bargain with the devil.  They can be saddled with a criminal record for a lifetime.  Whatever happened to the concept of serving a jail sentence as paying their debt to society?  It is supposed to bring “finality” to a criminal event.  There are few employments for which a criminal record should result in disbarment from serving.  All others should not be made an impediment from earning a living.                                                                            August 16, 2019