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January 11, 2016
"Guilt, Innocence, and Due Process of Plea Bargaining"
The title of this post is the title of this recent paper authored by Donald Dripps that I just noticed on SSRN. Here is the abstract:
Threatened decades of imprisonment can exert more behavioral pressure than coercive police interrogation. Normative distinctions between confessions and guilty pleas offered in the Supreme Court's jurisprudence, and the academic literature, are unsound. Ergo catastrophic trial penalties should be subject to the narrowest version of the due process doctrine barring involuntary confessions: When the gap between the trial and guilty plea sentences might induce an innocent person to plead guilty, the plea is unreliable and a violation of due process. The appropriate remedy is for the defense to enter the plea subject to a trial offer, i.e., a request to the court to set the case for trial on lesser charges than those in the prosecution's trial threat; or subject to special procedures to reduce the risk of erroneous conviction at trial, such as barring proof of the defendant's prior convictions. The Supreme Court's plea bargaining cases are not inconsistent with such a procedure, while current practice is inconsistent with the Supreme Court's coerced confessions jurisprudence.
January 11, 2016 at 01:42 PM | Permalink
Comments
Assembly Line Justice at it's best...
Posted by: Cody | Jan 11, 2016 3:04:27 PM
Oops BS in Justice Administration
Posted by: Cody | Jan 11, 2016 3:05:02 PM
I blame the defense bar. According to the New York Times, ninety seven percent of federal cases and ninety four percent of state cases are resolved via plea bargaining.
The criminal court system, at the state and federal levels, could not handle even fifty percent more trials than they currently handle. The odds are hugely stacked in favor of the defense bar if they, each and everyone, held out for a trial on twice as many cases. If that happened the police would be forced to change enforcement priorities and prosecutors would have to be more discriminating in which cases to bring charges.
Posted by: Jardinero1 | Jan 11, 2016 3:24:47 PM
Jardinero1
The problem is that defense lawyers owe no duty to the system, they owe a duty to their client. This is a classic "tragedy of the commons" situation where what is best for each individual in isolation leaves everyone the worse off. Do YOU want to be the one to tell your client that you intend to sacrifice them for the greater good? And what do you think your client's reaction to that is going to be?
Posted by: Daniel | Jan 11, 2016 3:35:16 PM
The tragedy of the commons deals with the depletion of a common resource. It has no relevance to individual attorneys contracted to defend individual for a fee. There is no common resource. The attorney offers time and expertise; and the client or his proxy offers money.
Defense lawyers may owe a duty to their client, but the 97 percent and 94 percent plea bargaining rates indicate that they are not fulfilling their duty to their client. The overwhelming majority of the defense bar prefers to just muddle along, plead it out and collect their fee. Are the police and the prosecution really so efficient and effective that 97 percent of the cases are provable beyond a shadow of a doubt?
Posted by: Jardinero1 | Jan 11, 2016 5:07:12 PM
Jardinero1-
If the standard at trial really was "beyond a shadow of a doubt," you'd have a good point. The applicable standard of reasonable doubt is less stringent, both legally and practically. And this is the operative reality: it's not that hard to convince a jury of a defendant's guilt, even if in the vacuum of theoretical perfection some cases could be effectively challenged. It is a rare case that has true potential to result in an acquittal at jury trial, and both sides know this. In the district where I work, the public defenders are pretty savvy about recognizing those cases, and that's why, when they do go to trial, they get acquittals roughly half the time. But they don't go to trial very often...
Posted by: USPO | Jan 11, 2016 5:52:22 PM
And I'd like to point out that 50% is excellent. My recollection is that 75% of those who chose to go to trial are found guilty, on a nationwide basis. You can argue that 75% is still better than 97% but add in the trial penalty and it is easy to see why many don't take the risk.
So yes, it is a tragedy of the commons because the common resource is justice. But the pursuit of justice for one's client leads to a reduction in justice for everyone.
Posted by: Daniel | Jan 11, 2016 9:03:42 PM
The phrasing of the issue reveals the bias of the writer. Is there a trial penalty or a plea discount?
At the plea stage, the parties face some unknowns: 1) will the trial court exclude some of the evidence; 2) will the jury find my side's witnesses credible; 3) will my witnesses show up or change their versions of events; 4) what inferences will the jury take from the evidence. They also face the reality that going down the road to a trial (as opposed to a quick plea) will require the expenditure of resources for both sides. Additionally, a plea reduces the burden on non-government participants (witnesses and victims). All of these factors lead the prosecution to offer a deal that is better than what the defendant could get after trial if the defendant is found guilty.
Assuming that the police and prosecutors have done their job before charges are filed, most defendants are better off accepting that plea discount (which is what leads to the 97% plea rate). The risk that the jury will find them guilty of the crime they actually committed (as opposed to the reduced charge offered in the plea bargain) and the judge will sentence based on their real conduct is too high. (And it is important to remember that, even though counsel can recommend that a defendant take a plea, the final decision is made by the defendant.) While criminals as a whole would be better off if every criminal went to trial, the criminal who does go to trial is worse off.
The situation is more a "prisoner's dilemma" than a tragedy of the commons but does share some of both. The benefit to criminals as a whole (a less effective justice system) only obtains if a significant number of defendants do not overuse the resource available to them (favorable plea offers).
Posted by: tmm | Jan 12, 2016 10:04:17 AM
