New Report on Plea Bargains

Via Sentencing Law and Policy, this article in Harvard's Journal of Legal Analysis rebuts the notion that plea bargains are good for defendants:

How can a prosecutor, who has only limited resources, credibly threaten so many defendants with costly and risky trials and extract plea bargains involving harsh sentences? Had defendants refused to settle, many of them would not have been charged or would have escaped with lenient sanctions. But such collective stonewalling requires coordination among defendants, which is difficult if not impossible to attain. Moreover, the prosecutor, by strategically timing and targeting her plea offers, can create conflicts of interest among defendants, frustrating any attempt at coordination.


The substantial bargaining power of the resource-constrained prosecutor is therefore the product of the collective action problem that plagues defendants.

This conclusion suggests that, despite the common view to the contrary, the institution of plea bargains may not improve the well-being of defendants. Absent the plea bargain option, many defendants would not have been charged in the first place. Thus, we can no longer count on the fact that plea bargains are entered voluntarily to argue that they are desirable for all parties involved. (my emphasis)

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    A very distorted view (5.00 / 1) (#1)
    by oculus on Mon Oct 05, 2009 at 11:13:46 AM EST
    of the discretion exercised by a prosecutor in issuing a criminal complaint:

    Absent the plea bargain option, many defendants would not have been charged in the first place.

    I think what the author is saying is twofold (none / 0) (#3)
    by scribe on Mon Oct 05, 2009 at 11:26:27 AM EST
    (a) that many of the more serious charges would have been downgraded by prosecutors early in the process, so as to move them along, and
    (b) in the longer time horizon (months and years as opposed to days and weeks) prosecutors would be inculcated in a mindset of bringing appropriate charges rather than throwing the book at everyone, thus lowering the volume and severity of the charges on average.

    Plea bargaining allows politicians to criminalize (5.00 / 1) (#6)
    by BobTinKY on Mon Oct 05, 2009 at 12:01:06 PM EST
    anything and everything.  It is a way around the right to jury trial so that the limited resources of our judicial system never provide a practical limit on whatver it is politicans find popular to criminalize.  If it were not for plea bargaining we as a society would have to think long and hard about what types of behaviors we think merit the investment of scarce criminal justice resources. Unfortunately, as a society we seldom like to think at all much less long and hard.

    We have allowed our adversarial criminal justice system to become an inquisition presided over by prosecutors.    Hardly surprising plea bargaining does not redound to the defendants' benefit.  It is a system of convenience for the prosecution that is intended to facilitate "tough on crime" politicans.  

    Only rarely does defense collective action (none / 0) (#2)
    by scribe on Mon Oct 05, 2009 at 11:24:05 AM EST
    actually work.

    I recall an incident about 10 years ago.  In a state where I was then practicing, not-so-minor traffic violations were often plea bargained down to a lesser violation, rather than force the cop to come in and the prosecutor to try the case and the defendant to be exposed to the greater penalties.  Since, for the governmental attorneys (and the judges) theirs was pretty much a part-time job, they had extra incentives to settle.  It worked like this:

    Say, the defendant was (correctly) charged with running a stop light.  This was a 4 point offense, in a system which both allowed only 12 points to be accumulated before the operator's license would be suspended, and in which the auto insurance industry imposed a significant addition on the premiums of those with points.  Those additional premiums would continue for nearly 4 years.  In point of fact, the cheapest part of this ticket would be the court's fine.

    To prove the running a stop light charge at trial would require bringing in a cop to testify, and a good half-hour to hour of actual trial time.  The courts would schedule a hundred or so of these cases every week, and more-serious cases (DWI, for example) would take precedence.  Thus, the minor cases (running the red light) would be rescheduled again and again.

    There also existed a traffic offense called "obstructing traffic", which carried zero points and which had a pretty broad definition in the statute.  It was, therefore, standard practice for prosecutors to accept just about any factual basis for a guilty plea to the "obstructing traffic" offense, just to clear the dockets.  It got to the point where the state's Supreme Court (which had supervisory jurisdiction over the traffic courts) came out and said to the traffic courts "hey, you're accepting factual bases on this obstructing traffic offense which have no relation to the statute.  We decide that you will no longer accept plea bargains to this offense."  That limitations on what plea bargains the traffic courts could accept was pursuant to a well-worn precedent, and unchallengable.

    All of a sudden, defendants who last week could plead their running a red light down to obstructing traffic - and turn a ticket that would cost them $150 for the fine and costs plus four points and a good $2500 to $3000 over the life of the insurance surcharge, into a ticket that would cost them $500 for the fine and costs plus no points and no surcharge - stopped pleading.  The subset of bar association members who spent most of their time in traffic court went public with their associational decision "We will not plead any of our cases.  We will try them all."

    Prosecutors and traffic court judges went into a conniption and started threatening.

    The defense bar went through a week or so of forcing every case to trial.

    About 2 weeks later, the Legislature passed, and the governor signed into law, a bill (immediately effective) amending the traffic code, to provide a new offense called "unsafe driving" (or, as it came to be colloquially known "driving while stupid") which had a really, really broad definition (and thus would accept just about any factual basis) and, as importantly, bore zero points (for the first and second-time offender) and had a slightly higher fine.

    And driving while stupid took the place of obstructing traffic in the lexicon of resolving matters.  And pleas once again began to be entered and cases resolved quickly.  

    So, collective action by defendants in forcing prosecutors to try every case does, in fact, work.  I've seen it in action.  

    The core problem is, though, in getting all the defense counsel and defendants on board with it.  In traffic court, where a hundred cases a week in every town meant an instant backlog the size of a mountain if pleas stopped, it was easy.  In the slimmer major criminal dockets (with their correspondingly greater penalties), I can see it being much more difficult to carry out.

    Seems to me (5.00 / 1) (#5)
    by Steve M on Mon Oct 05, 2009 at 11:55:28 AM EST
    that it is difficult to employ collective action in a context where you owe an individualized duty to each client.  What if your client goes to trial and gets the book thrown at him, when he could have pleaded to a much lesser penalty?  "Sorry, but this strategy will work out best for defendants as a group in the long run, you're just one of the unlucky ones"?

    Now, in your example, the strategy was necessitated by the lack of any good alternative for the defendants, but that's a unique kind of scenario.  


    Good alternative, period. (none / 0) (#11)
    by Fabian on Mon Oct 05, 2009 at 01:07:07 PM EST
    After all, everyone got hammered in the "try everything" scenario.  If we did try everything, we'd have to invest significantly more in our judicial system to be able to handle the case loads.  Try more cases = need more resources.

    Could a Law'n'Order conservative could actually make the case that we need to raise taxes to discourage plea bargains?


    To this layman... (none / 0) (#4)
    by kdog on Mon Oct 05, 2009 at 11:40:00 AM EST
    the practice of prosecutors pleading down charges they have no chance to get a conviction on, or have no intention of pursuing through to trial, is a very dishonest practice.

    If we're gonna give our public servant prosecutors so much power, we must hold them to the highest of ethical standards. This sh*t ain't kosher...and its a hard bluff to call when it can mean your very life as a defendant.

    Sh*t happens. Sometimes (none / 0) (#7)
    by oculus on Mon Oct 05, 2009 at 12:05:34 PM EST
    what appeared when the prosecutor's office issued the case to be the factual basis for issuing doesn't turn out to be accurate.  Witnesses lie or are intimidated.  Domestic violence victim prefers not to testify.  No, a prosecutor should not issue counts for which there is no probable cause.  But situations do change after issuance.

    Thanks for the view... (none / 0) (#9)
    by kdog on Mon Oct 05, 2009 at 12:47:35 PM EST
    from the other side of the fence...I would hope when the sh*t happens and the situation changes prosecutors revise the charges asap, everytime...and not use charges they cannot prove as an axe over a defendant's head to basically force them to plead to lesser.

    In a perfect world. (none / 0) (#10)
    by oculus on Mon Oct 05, 2009 at 01:04:34 PM EST
    Roman Polanski plea bargain (none / 0) (#8)
    by oculus on Mon Oct 05, 2009 at 12:06:54 PM EST
    was certainly to his benefit as a criminal defendant.  

    Polanski's plea deal is an "exception" (none / 0) (#12)
    by FoxholeAtheist on Mon Oct 05, 2009 at 02:45:04 PM EST
    to the rule purported by the author?