Saturday, February 13, 2010

Why I don't like plea bargaining (in theory)

Scenario 1:  You look like the guy who robbed the liquor store down the street the other day.  The cops pick you up because you look like the suspect and you live nearby, you were even wearing a hoodie when they picked you up.  You were playing Xbox by yourself and have no alibi for the time the store was robbed.  You end up in a lineup and the clerk picks you out.  The cops conclude you did it and write a report to that effect.  The report goes to the prosecutor who files an information against you based on what the cops said.  You borrowed a lot of money from your grandma and you pay a bail bondsman and you pay a large amount of money to a private attorney.  He says the state's case is weak and you could go to trial and get acquitted, but there's no guarantees; he estimates your chance of acquittal at 55% because the clerk is gonna testify against you and you have no alibi.  Then he tells you that the DA offered a plea bargain; you plead guilty and you'll get a couple of months in the county jail with the rest of your sentence suspended, you pay fines and court costs as well; no prison time for you unless you violate the law during your suspended sentence.  You're not guilty, you know you're not guilty but if you continue to assert you're not guilty you run a pretty good risk of spending years in prison because of circumstances beyond your control.  Do you take the deal?

Scenario 2:  You robbed the liquor store.  They got you on a fuzzy video.  You got picked up by the cops with a wad of money in your pocket, but you were smart enough not to confess like all those other dummies who do.  You asked for your lawyer and you weren't further interrogated.  You're lawyer says you're screwed and it'll be an easy conviction for the state and you should look for a plea deal since this is your first offense (first one they know about anyway, suckers).  You have no reason to doubt what he says.  The DA offers you a deal, take a few months in the county jail, pay some fines and court costs and a suspended sentence; otherwise, the DA will go hard on you and ask for 5 years in the penitentiary, you probably won't get out until a little after 4 years pass.  Do you take the deal?

-- I don't practice much criminal law, but this seems to be a systemic sort of problem.  We have, in the first place, far too many laws and not nearly enough resources to enforce them all evenly.  We probably need to do something like halve the number of laws that result in criminal penalties while doubling the amount of resources prosecution and defendants have to adjudicate meritorious cases.

-- My buddy Erik thinks this is Pie in the Sky.  I agree, but it's still what I think.  And, no, I don't trust "the cops", only individuals that I know.