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June 28, 2009

Local examination of the realities of plea bargaining

A local paper from Maryland this morning has these two pieces talking about the dynamic realities of plea bargaining:

Here is a portion of the first of these articles:

Because of the volume of jury trial requests alone, plea negotiations are a necessity of the criminal justice system nationwide, local prosecutors and defense attorneys agree. The situation is in no way unique to Frederick County.

Former State's Attorney Scott L. Rolle, now a defense lawyer trying cases against some of the prosecutors he hired, calls plea agreements "a necessary evil."

Frederick County processes more than 10,000 criminal and criminal-related cases each year, including probation violation and child support cases. "With only seven sitting judges in eight courtrooms, every case can't go to trial," Rolle said of Frederick County's judges, three in District Court and four in Circuit Court. "The system would simply come to a screeching halt if that happened."

June 28, 2009 at 10:26 AM | Permalink


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The reporter didn't seem to understand how plea bargaining works so it's not surprising her story sheds little useful light on the subject.

It's not happenstance, as the reporter implies, that "some defendants" who reject plea deals draw disproportionately harsh sentences upon conviction.

To the contrary, a systematic, thinly veiled threat of severe retribution (charge stacking leveraged by sentencing guidelines) is the core of the government's power to imbue trial rights with terrifying risks.

It's how states somewhat effortlessly compel confessions in 3 of 4 cases (and apparently 4 of 5 in Maryland).

It's how the feds easily compel confessions in upwards of 95 of every 100 cases.

No, the draconian hammer smashes virtually every citizen who loses after putting the government to the irritation of a trial.

Traditional protections for accused citizens fall by the wayside, of course, but it's OK because it makes the process more efficient.

Think what the reporter might have learned by digging a bit deeper, maybe by interviewing a white-collar defendant forced to choose between the plausible threat of 30 years in prison for technical, regulatory infractions or six-months home detention, probation and a fine.

She might have learned it costs upwards of $40,000 just to "bargain" with the government and upwards of $200,000 to go to trial?

Or maybe that jurors sometimes don't understand complex federal charges, and confused jurors can't be relied upon not to default in favor of the government?

Or that vague, sweeping federal laws were designed to make them next to impossible to defend against? (In a trial I covered recently the jury broke from deliberations to ask if it were "possible" to acquit on a conspiracy charge).

As a retired newspaper editor, I'm often saddened by how much media reporting and opinion copy squares up almost verbatim with self-serving DOJ press releases.

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Posted by: lucas law center | Jun 30, 2009 5:36:08 AM

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