First, plea bargaining is why I have always taken people's complaint that our jails/prisons are full of unlucky people who were just drug users with a grain of salt. Most users aren't affluent enough to use w/o at least some side dealing, but the dealing may be hard to prove. The possession part is pretty obvious.
Second, it is sometimes more important to get a criminal off the streets than to send him up for his worst offense. The police often 'know' who was responsible for a serious crime but lack solid proof, sometimes because the victim is afraid to testify. Sending the perp away on a lesser change that is already outstanding beats allowing him back on the streets. It's probably not his first incarceration anyway.
I wonder whether another factor in the increase in plea-bargaining is improved forensic technology, particularly cameras, which I assume systematically provide much stronger evidence than was available to courts a half century ago. I speculate that that is why fewer defendants think they have chances with juries.
I certainly have great respect for Mr. Otis, every post by him I have ever read on here, and this one too. However, although I agree with a lot of the post, I would disagree or at least expand on a couple points based on 35 years as a prosecutor in state court.
First, the comparison with civil cases that is made here is not as broad as I think it needs to be. Both criminal and civil cases are legal actions brought by a plaintiff generally seeking a remedy for a perceived wrong. No one ever questions the fact that there are almost always negotiations between the sides to the civil dispute about how to resolve the case. The biggest reason there are (in addition the reasons cited by Mr. Otis) is uncertainty. When a case is tried the result to one degree or another is almost always uncertain. In both criminal and civil cases the parties have a great interest in certainty. This is one reason I think it would not be a good idea to adopt the practice that plea negotiations should always be initiated by the defense. Some defendant's attorneys, for a variety of reasons often related to their own interests, wouldn't to it and it would be to their clients's detriment and the remedies would be too slow in coming. Additionally to have a prosecutor unable to negotiate a case where the defendant was clearly guilty, but the admissible evidence in a trial might not result in a conviction would not be good public policy to my mind.
All this said, I have seen abuses albeit in a small minority of cases in plea negotiations by both sides and by the courts. Let me give one example: it is perfectly legal–at least in the jurisdictions I know of–for a prosecutor to bring a viable and proper criminal case against a relative or a friend of a defendant with the main goal of using that case to achieve a plea agreement with the initial defendant. There are good reasons which something that might seem at quick thought to be wrong is legal, but those are beyond the scope of comment here.
Sometimes this doesn't work an abuse, but sometimes it at the very least leaves a totally unsavory taste and certainly carries with it the potential perception of abuse. An example in the public eye that some might call an abuse was what happened with General Flynn and his son.
Another situation involves mandatory sentences. I am a big supporter of some mandatory sentences with qualifications. I think they can restore balance to to systems where the judiciary and the defense have aggregated undue power to themselves. However, mandatory sentences often confer significant power on the prosecution since baring a not guilty verdict the only way around the mandatory sentence is usually a plea bargain. I have seen some prosecutors use a mandatory sentence to achieve a result that, while lawful, I didn't consider appropriate or equitable.
On the courts and their approach to plea hearings: I have no doubt that what Mr. Otis describes is true in federal court and in many instances in state courts. However, in the press of business, in many state courts it I was my experience that there were a significant number of occasions when such close attention was not paid to the voluntariness of the plea.
That said, I think the holding in Ruiz is not quite as broad as implied regarding the lack of a need to disclose exculpatory evidence at the plea stage. I suspect it is required, and, if not, should be required to disclosed evidence of actual innocence at the plea negotiation stage. But plea negotiations are not necessarily successful and. if I understand Mr. Otis's proposal to call for open prosecutor files at the plea negotiation stage correctly, it would create a situation where there might not be a plea and where the case may well go to trial months or even years later. I do not think a prosecutor should be required to allow a defense attorney to review everything they have on the case at that point. It would create an unbalanced situation as the case moves forward and give the defense (whose file will of course never be totally open to the prosecutor) an undo advantage.
Finally, on the proported growth in plea negation: I don't know the numbers, but I do know that it was deeply embedded in the system when I started in 1977 and was the end result in the overwhelming majority of cases. My suspicion is that it will always exist and be the end result in most instances where there are legal cases between two parties and the result at trial is uncertain. While the growth of crime can affect the situation, plea negotiations were very robust in my jurisdiction during a time of significantly declining crime in the late '90's and the early 21st Century.
Of course, I retired 10 years ago when our local homicide numbers were a prosaic 19 instead of the three digits they regularly crack now thanks in large part to current prosecutors who abuse the law by not enforcing it. Thus, my experiences and examples are from the foreign country that is the past. Nevertheless, times may change and I bring my personal experience forward for whatever it may be worth.
Thank you for this wonderfully thoughtful and insightful comment. It obviously took a great deal of time and effort for you to put it together. For now, I'll just say that indeed uncertainty is a big driver of plea bargains, and I thank you for adding that important fact. I'll try to say more as time permits.
Great post. Comprehensive, with practical suggestions to improve what is a necessary practice in our justice system. Jim Dueholm
Excellent post - two observations.
First, plea bargaining is why I have always taken people's complaint that our jails/prisons are full of unlucky people who were just drug users with a grain of salt. Most users aren't affluent enough to use w/o at least some side dealing, but the dealing may be hard to prove. The possession part is pretty obvious.
Second, it is sometimes more important to get a criminal off the streets than to send him up for his worst offense. The police often 'know' who was responsible for a serious crime but lack solid proof, sometimes because the victim is afraid to testify. Sending the perp away on a lesser change that is already outstanding beats allowing him back on the streets. It's probably not his first incarceration anyway.
I wonder whether another factor in the increase in plea-bargaining is improved forensic technology, particularly cameras, which I assume systematically provide much stronger evidence than was available to courts a half century ago. I speculate that that is why fewer defendants think they have chances with juries.
I certainly have great respect for Mr. Otis, every post by him I have ever read on here, and this one too. However, although I agree with a lot of the post, I would disagree or at least expand on a couple points based on 35 years as a prosecutor in state court.
First, the comparison with civil cases that is made here is not as broad as I think it needs to be. Both criminal and civil cases are legal actions brought by a plaintiff generally seeking a remedy for a perceived wrong. No one ever questions the fact that there are almost always negotiations between the sides to the civil dispute about how to resolve the case. The biggest reason there are (in addition the reasons cited by Mr. Otis) is uncertainty. When a case is tried the result to one degree or another is almost always uncertain. In both criminal and civil cases the parties have a great interest in certainty. This is one reason I think it would not be a good idea to adopt the practice that plea negotiations should always be initiated by the defense. Some defendant's attorneys, for a variety of reasons often related to their own interests, wouldn't to it and it would be to their clients's detriment and the remedies would be too slow in coming. Additionally to have a prosecutor unable to negotiate a case where the defendant was clearly guilty, but the admissible evidence in a trial might not result in a conviction would not be good public policy to my mind.
All this said, I have seen abuses albeit in a small minority of cases in plea negotiations by both sides and by the courts. Let me give one example: it is perfectly legal–at least in the jurisdictions I know of–for a prosecutor to bring a viable and proper criminal case against a relative or a friend of a defendant with the main goal of using that case to achieve a plea agreement with the initial defendant. There are good reasons which something that might seem at quick thought to be wrong is legal, but those are beyond the scope of comment here.
Sometimes this doesn't work an abuse, but sometimes it at the very least leaves a totally unsavory taste and certainly carries with it the potential perception of abuse. An example in the public eye that some might call an abuse was what happened with General Flynn and his son.
Another situation involves mandatory sentences. I am a big supporter of some mandatory sentences with qualifications. I think they can restore balance to to systems where the judiciary and the defense have aggregated undue power to themselves. However, mandatory sentences often confer significant power on the prosecution since baring a not guilty verdict the only way around the mandatory sentence is usually a plea bargain. I have seen some prosecutors use a mandatory sentence to achieve a result that, while lawful, I didn't consider appropriate or equitable.
On the courts and their approach to plea hearings: I have no doubt that what Mr. Otis describes is true in federal court and in many instances in state courts. However, in the press of business, in many state courts it I was my experience that there were a significant number of occasions when such close attention was not paid to the voluntariness of the plea.
That said, I think the holding in Ruiz is not quite as broad as implied regarding the lack of a need to disclose exculpatory evidence at the plea stage. I suspect it is required, and, if not, should be required to disclosed evidence of actual innocence at the plea negotiation stage. But plea negotiations are not necessarily successful and. if I understand Mr. Otis's proposal to call for open prosecutor files at the plea negotiation stage correctly, it would create a situation where there might not be a plea and where the case may well go to trial months or even years later. I do not think a prosecutor should be required to allow a defense attorney to review everything they have on the case at that point. It would create an unbalanced situation as the case moves forward and give the defense (whose file will of course never be totally open to the prosecutor) an undo advantage.
Finally, on the proported growth in plea negation: I don't know the numbers, but I do know that it was deeply embedded in the system when I started in 1977 and was the end result in the overwhelming majority of cases. My suspicion is that it will always exist and be the end result in most instances where there are legal cases between two parties and the result at trial is uncertain. While the growth of crime can affect the situation, plea negotiations were very robust in my jurisdiction during a time of significantly declining crime in the late '90's and the early 21st Century.
Of course, I retired 10 years ago when our local homicide numbers were a prosaic 19 instead of the three digits they regularly crack now thanks in large part to current prosecutors who abuse the law by not enforcing it. Thus, my experiences and examples are from the foreign country that is the past. Nevertheless, times may change and I bring my personal experience forward for whatever it may be worth.
Thank you for this wonderfully thoughtful and insightful comment. It obviously took a great deal of time and effort for you to put it together. For now, I'll just say that indeed uncertainty is a big driver of plea bargains, and I thank you for adding that important fact. I'll try to say more as time permits.