Wednesday, March 12, 2014

Sentencing and Policy Blog Post: "Judges as Framers of Plea Bargaining"

I'm sharing the below post about a new paper on the topic of Federal plea bargaining and a proposal for future deals but personally I believe plea bargaining should disappear in America all together.

If the Prosecution does not have a case that would hold up in a trial then charges should be dropped. After all it is the responsibility of the Government to prove guilt beyond a reasonable doubt but that not what happens in or country today. Prosecutors stack charges, they have mandatory minimums  on their side and anyone who can’t afford an OK defense attorney ($50,000-$75,000) will be given a court appointed attorney who will just push the defendant into taking the plea deal so they can get their paltry payment from the State and move on to the next defendant who has no money. 

That’s why more than 94% of criminal charges in Virginia are settled with a plea deal, not because of guilt but because the Prosecutors hold all the cards, our statutes have been re-written over the last 25 years to lower the bar of guilt while raising the penalty and a good attorney is more than $100,000. Who has $100,000? 

I’ve previously posted articles about plea bargaining in the In the News page . Including some of these:
·        Southern Virginia task force polices digital shadows, February 16, 2014
·        Report: Prosecutors force federal drug defendants to plead guilty, December 15, 2013
It says those who reject plea deals get stiffer terms
·        Harsh Sentences Are Killing the Jury Trial, December 6, 2013
As they coerce defendants into making plea bargains, prosecutors are also shutting everyday Americans out of the justice system.
·        Prosecutors Draw Fire for Sentences Called Harsh, December 5, 2013
·        US: Forced Guilty Pleas in Drug Cases, December 5, 2013
Threat of Draconian Sentences Means Few Willing to Risk Trial
·        OpEd: Colorado’s draconian sex-offender laws need reform, November 10, 2013
·        Thumb on the scale: How mandatory minimum sentences distort plea bargaining, January 26, 2013
·        Widespread Use of Plea Bargains Plays Major Role in Mass Incarceration, November 2012
·        The Devil’s Bargain: How Plea Agreements, Never Contemplated by the Framers, Undermine Justice July 2011
·        The Case Against Plea Bargaining, 2003
Government should not retaliate against individuals who exercise their right to trial by jury.

I know from personal experience that plea deals are offered in Virginia before the Prosecution interviews the defendant (5 months and 2 weeks since the false accusation was made), you are only given 5 minutes to make a decision about the plea and if you don’t take the offer they’ve stated your photo, name, address and charges will be released to the 6 O’clock news.  

5 minutes to make a decision that will affect the rest of your life and your families with no knowledge of the actual accusation, any facts of the case, the dates, the times, the witnesses, nothing because in Virginia a motion for discovery is denied. But with the plea deal you can take one misdemeanor and go home today but if you turn it down you’ll face two felonies that each carry a sentence of life plus 20 years. Plus you’ll need to spend another $20,000+ (that you don’t have) to go to trial which would be 6-9 months more away and in the meantime you’ll be dismissed from your place of employment because your job allows you to work with a misdemeanor but not if you’re facing a felony. How will you pay the additional $20,000 and cover household expenses for the next 6-9 months if you’re dismissed from your job?  What do you do, you have 5 minutes under the threat of your photo being given to the local news? You take the damn deal and go home. 

Because of this experience I will always take the stance plea bargains should be abolished! 


"Judges as Framers of Plea Bargaining"

The title of this post is the title of this intriguing new paper by Daniel S. McConkie Jr. now available via SSRN. Here is the abstract: 
The vast majority of federal criminal defendants resolve their cases by plea bargaining, with minimal judicial input or oversight.  This presents significant issues concerning transparency, fairness, and effective sentencing.  Federal prosecutors strongly influence sentences by the charges they select.  The parties bargain informally outside of court and strike a deal. But defendants often plead guilty without a realistic understanding of their likely sentencing exposure.  Instead, they plead guilty based on their best guess as to how judges will resolve certain issues and their own fear that they could get an unspecified but severe post-trial sentence.  The judge is often reluctant to reject the parties’ deal, partly because the judge may have little information about the case, and partly because the judge lacks the resources for courtroom-clogging jury trials.  What is needed is a public, court-supervised, advocacy procedure early in the case to guide the parties in considering key sentencing issues and fashioning a just and reasonable sentence based on the judge’s feedback. 

This article explores a proposed procedure that would do just that.  Early in the case, and upon the defendant’s request, the parties would litigate a pre-plea motion procedure similar to sentencing proceedings.  As part of those proceedings, a pre-plea, presentence report would be prepared with input from the parties.  The motion would educate the judge about the case and enable the judge to issue two indicated sentences: one for if the defendant pleaded guilty as charged, and another for if the defendant were convicted at trial.  This increased judicial participation through a regularized, advocacy procedure would allow judges to help frame the parties’ discussion of sentencing issues and likely sentencing consequences earlier in the case, all without involving the judge in the parties’ plea discussions.  Several benefits would flow from this: the plea bargaining process would become more transparent, resulting in increased public accountability; the defense attorney would have greater incentives to properly investigate and present key issues; and the defendant could make a more informed decision about whether and on what terms to plead guilty.  In short, plea bargaining is here to stay, but criminal justice would be greatly improved by bringing more of the plea bargaining process back into the courtroom where the judge could help frame the key issues for the parties.