Quote:
Originally Posted by CPHoya
This is a very very very strange thread.
Very.
Why are there > 2 pages on the topic of whether prosecutors exert "coercion" on defendants through the offer of plea bargains in the American criminal justice system? That's literally the design.
There can be no dispute that plea bargaining is designed to be leveraged negotiation against the defendant. In this sense, chez has identified a fact: plea bargaining is not conducted on equal footing.
There can be no dispute that one of the obligations of defense counsel is to provide informed guidance and to appropriately negotiate an acceptable plea bargain. This is thought to negate the imbalance inherent in negotiating about the defendant's future freedom. This makes the system less coercive.
There can be no debate that case loads already destroy judicial efficiency and defense diligence. This is not an issue of PDs being poor attorneys - by the way whoever made that post, you are so wrong; I say that as someone who has done criminal defense - but an issue of necessitated volume. You cannot be diligent for 500 people in a year, not like a civil attorney is for 30 cases a year. Just an example. Anyway, our system is ALREADY overloaded in numerous ways.
There can be no dispute that plea bargains are the most effective grease for the dilapidated gears of the contemporary judicial system. To eliminate plea bargains without overhauling the entire system is basically to remove oil from a ****ty engine and see how long it'll run. It's a tremendously, tremendously, tremendously godawful idea. Every lawyer in this thread has said this, and I'm joining them.
Perhaps the interesting point is that IF you were able to completely revise the entire criminal justice system, THEN perhaps adjusting the "coercive" - chez's argument, such as it is, is really an argument regarding institutionalized violence from the critical legal theory world - effect of plea bargaining could be a priority, and THEN that discussion might include eliminating plea bargaining. Maybe.
Anyway, the list of more important issues, some combination of which or all of which would need to be addressed before the concept of eliminating prosecutorial bargaining could even be countenanced as anything less than the worst idea possible:
- Revise state and federal criminal statutes / codes to decriminalize no-victim crimes, drug crimes, etc.
- Eliminate mandatory minimums.
- Eliminate cyclical parole / probation systems (treadmill systems like D.C. where arrest itself is a violation)
- Improve the exercise of prosecutorial discretion by disincentivizing max charges and litany charges.
- Cease biased community policing.
- Cease race-targeted policing.
- Develop and fund diversionary programs until diversionary programs actually have a reasonable expectation of rehabilitation / reasonable expectation of reducing recidivism.
- Massive raises for PDs, and hiring of 3-4 times more (this will never happen)
- Stop politically incentivizing prosecutrial overcharging / misconduct.
- Stop utilizing conviction rates as the measure of prosecutorial success - this stat is only "good" if prosecutorial discretion is excellent, which it is not.
- More stuff that I can't think of right now because I'm tired.
As it stands today, the American criminal justice system aggressively tramples defendants and their rights and interests, and structurally encourages recidivism. Plea bargains are a risk-reduction benefit to defendants stuck in that system. If we were to eliminate plea bargains without addressing the foregoing (totally incomplete) list, we would theoretically maybe reduce the grad school conception of "coercive violence" done to defendants while simultaneously disarming defendants by removing risk reduction possibilities, guarantee a probably 100-fold volume of trials, bankrupt our courts and PD offices and prosecutorial offices, begin systematically violating speedy trial rights, virtually guarantee significantly increased prison sentences for the same alleged crimes, forego opportunities for diversion that are part-and-parcel of the plea bargain process, condemn defense attorneys to taking dead-bang-losers to trial, and generally just **** up everyone's **** even worse than we already do.
This is a considered post. Eliminating plea bargaining in a vacuum, OR without fully expressing ALL the other corrections that need to be made in the Amercan criminal justice system before eliminating bargaining, is honest-to-god the worst idea I've read in this forum in at least a year.
Thanks for the considered post. The thread is initially stranger then it should be because the initial story I responded to is left out till later and we we had the silly derail because ... oh it doesn't matter, it's what we do around here
To clear up one point, I'm not, and don't think anyone here is, advocating for the removal of plea bargaining in a vacuum or without addressing other problems. I agree that the system as it is cannot function without plea bargaining but its too important and could hurt too many people to just bring it crashing down. The example that started the thread is a good illustration of how unacceptable/unjust the oil (as you nicely put it) is - it's not some benign lubricant. That doesn't imply just getting rid of the oil, it means redesigning the engine which in practice means an evolution not a revolution. My contention is that a redesigned engine should eliminate that type of oil though I'm open to ideas on how to remove the toxic content from it instead.
I also agree that other injustices are plentiful and I hope we get into discussing them more. That's still no reason not to consider comparative justice systems and non plea bargaining type systems are worth considering. It's not some accident that the UK explicitly bans aspects of plea bargaining, the concerns about it being coercive and fundamentally unjust are common.
Last edited by chezlaw; 07-20-2016 at 08:18 AM.
