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December 18, 2013

"Plea Bargaining: Some Comparative Observations"

The title of this post is the title of this notable new (and notably short) piece providing a useful perspective on plea bargaining by Jacqueline Hodgson, a UK-affiliated author.  Here is the abstract:

Plea and sentence bargaining is characterized by several general features that we might recognize as common across a range of jurisdictions and procedural traditions.  It requires an admission of guilt from the accused; the accused is offered some reward, incentive or advantage, either in exchange for, or as a result of the plea; and there is some benefit to the criminal justice system -- typically the avoidance of a more lengthy and expensive contested trial.  The point in the criminal process at which these negotiations are initiated, the personnel involved, and the relative incentives and benefits available will of course differ.  In some instances, explicit bargains are struck between prosecutor and defense lawyer; in others, there is direct judicial involvement; and in others, the system benefit may operate as an implicit reward, without any explicit bargaining taking place.

December 18, 2013 at 04:20 PM | Permalink


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The adversarial sysem copied the disputation method of Scholasticism of the 1200's. The plea bargain came from the business method of the Inquisition, pursuing the wealth of the middle and upper class, using the point of the sword of the government to enforce its tyranny over every aspect of life. No one could pass any age withou a church ritual costing money. The church origins make both awful in their atavism, idiotic in their invalidity, and unlawful in their violation of the Establishment Clause.

Here is an alternative. The inquisitorial judge, a profession totally separated and unrelated to the lea advocacy profession. The judge would be a mature individual who has experienced the consequences of poor decision making. He would go to judge school. The main doctrine would b to enforce the law, not make the law. He would have high intelligence and supervise the police if the prosecutor is making mistakes in a case. He would judge for himself. His decisions could be second guessed in tort liability if he deviated from profdessional standards of due care. Superiors would review cases and make adjustments as needed. The core value would be to incapacitate busy, violent criminals, and to end all crime by whatever means necessary, including 10,000 executions for repeat offenders. If if there is an error rate, its damage pales in comparison to the same statisitics for 50 years of over 15,000 murders a year. In any year, 10% are committed by paranoid schizophrenics, loosed by the lawyer seeking make work government jobs.

If the crime rate in a jurisdiction rises for 3 years in a row, the judges must all be fired. Huge bonuses for lowering the crime rates 3 years in a row, such as $10 million for a state. Given their skill and responsibility, the base pay should be $500,000 and above. This should be based on payment for clearing cases. The falsely convicted should sue the judge personally, and he should carry professional liability insurance.

The plea bargain involves an inherent conflict of interest. It promotes the career of the prosecutor, and weakens the consequences of mostly guilty, and highly dangerous people. Then a judge says, prison is overcrowded, release the non-violent. However that decision is based on a fictitious adjudicated charge.

How much can a system fail before the public takes matters away from this horrible profession?

Posted by: Supremacy Claus | Dec 18, 2013 5:25:46 PM

I suggest everyone read the entire article. Eye opening.

Posted by: Supremacy Claus | Dec 19, 2013 2:21:18 AM

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