“Plead guilty or go to trial?”

by Walter Olson on June 6, 2006

The Pittsburgh Post-Gazette takes a look at the system of plea bargaining and the pressure it can place on defendants to forgo their right to a jury trial of the charges against them. (Paula Reed Ward, Mar. 27)(via Balko).

{ 13 comments }

1 E-Bell 06.06.06 at 8:40 am

So what do these folks think? That every case should go to trial?

Believe me, I worked as a prosecutor. If you saved me the time and expense of trying a case for a crime that you knew you were guilty of, you’d get a better deal. Why should someone who admits their guilt face the same penalty as someone who wastes scarce taxpayer dollars?

Plea bargaining is a good thing, just like civil settlements are a good thing.

2 Ima Fish 06.06.06 at 12:40 pm

The person who wrote the article has absolutely no understanding of what a plea deal is. Heck, they seem to even lack any understanding of what a “deal” is!

They are criticizing that defendants who take the plea deals get less time, well friggin duh!!!! For a plea deal to be legal there has to be some sort of an incentive of the defendant to make his plea. If there is no benefit to the defendant the plea would be ruled as illusory and set aside.

People get deals all the time. Some people willingly pay full price when they buy houses and cars. While others bargain and get deals. Guess what, those who bargain and take the deals end up paying less! God, what nonsense this is!

3 Mike 06.06.06 at 1:37 pm

Why should someone who admits their guilt face the same penalty as someone who wastes scarce taxpayer dollars?

That’s not the issue. The issue is whether innocent people are pleading guilty rather than going to trial, since the “trial tax” makes it overly risky for even innocent criminal defendants. (On a more theoretical note: Give that a jury trial is a constitutional right, it seems perverse to punish someone for exercising that constitutional right.)

4 Deoxy 06.06.06 at 1:39 pm

E-Bell,

Deal with this one situation (among many):

Tulia, Texas. Specifically, a big sting operation… fabricated by the undercover cop.

That it was fabricated is now not in question. Everyone awaiting trial has had their charges dismissed, and those found guilty have been exonerated.

But those who PLED guilty (under GREAT pressure, as some were too poor to post bail) are STILL IN JAIL.

That is a travesty.

I completely understand the issue of tax-payer dollars; I also understand that those who are the most obviously guilty, those for whom we should be most comfortable with long sentences, are the MOST LIKELY to plead guilty and get a lesser sentence, while those whose guilt we fel least comfortabl about, about whom we are most likely to make a mistake (and mistakes DO happen) are the ones who serve the longer sentences.

Wasting resources is a serious issue, certainly, but you didn’t make any case at all that is was MORE serious than justice.

5 Deoxy 06.06.06 at 1:40 pm

Let me add that I have no magic solution to this problem. It is a difficult problem, with no easy solution. The current “solution” is simply not a very good one – but it’s remotely possible that it is the best we can come up with.

6 Ima Fish 06.06.06 at 4:20 pm

“On a more theoretical note: Give that a jury trial is a constitutional right, it seems perverse to punish someone for exercising that constitutional right.”

The person that goes to trial on the original charges and is convicted on those original charges is not be punished.

Here is how it works. A defendant does some act or acts. Those acts correspond with the elements of a particular crime. A jury takes the acts committed and compares them with the elements of the crime to see if that particular crime is committed.

And here’s my point: If a defendant is found to have committed a crime at trial and he’s sentenced for committing that crime under the guidelines, where is the alleged punishment for not taking the deal?

I was involved with a case where the defendant stabbed someone to death. The prosecutor offered her a deal where she’d plea to second degree murder, thus giving her a chance for parole. She decided to go to trial and the jury found her guilty of first degree murder. Second degree murder was an option for the jury to consider, lesser included crimes are always included for the jury as an option, but the jury determined that because the defendant stabbed the victim twice in the heart, it showed an intent and deliberation to murder. Of course she was sentenced under the guidelines to life in prison without parole.

In that situation, where was she “punished” for not taking the deal? She did commit first degree murder and was sentenced to first degree murder. Did she screw up by not taking the deal? Sure. Will she be kicking herself the rest of her life for not taking the deal? Yep! But was any additional punishment applied to her situation for not taking the deal? Not at all. She was sentenced according to her conviction and not a bit more.

7 Deoxy 06.06.06 at 5:28 pm

Ima Fish,

Yay for that.

Now deal with the situation I posted.

If you have more time, consider this situation: you are innocent. You are charged with a crime, and the circumstantial evidenc against is significant. Your lawyer adviss you that you’ve got about an 80% chance of being found innocnt (best guess).

The prosecutor offers you a deal: plead guilty to a certain set of charges, get 3 months probation. Otherwise, at trial, the charges he will bring (which you aren’t currently being charged with – he’ll add them, just because he can) have a minimum penalty of 10 years in prison, up to 25 years.

Now, 80% is pretty good odds… but do you want to be 10-25 years on 80%? How about 90%?

That is what people are being asked to choose between. Innocent people plead guilty because of choices like that. THAT is why the ssystem is BROKEN. (See the Tulia example, above, for more.)

If you can’t see that, you need to be charged with a serious crime. It would open your eyes.

OK, one more point: if you aren’t charging someone with a certain crime now, yet you will if they don’t plead guilty, and your rationalization to yourself is that they really are guilty of it and therefore it’s a legitimate charge, WHY AREN’T YOU ALREADY CHARGING THEM WITH IT?!? It’s levrage, plain and simple, to up the risk of going to trial, to get them to plead guilty, whether they are or not.

8 E-Bell 06.07.06 at 9:50 am

Deoxy,

Under the facts as you stated them, the folks who pled guilty should be permitted to withdraw their pleas.

The system doesn’t deal with truth – it deals with evidence and proof.

If folks who aren’t guilty choose to accept a plea bargain, that’s their decision. If they were coerced into accepting the plea through the presentation of false evidence against them, they should be permitted to withdraw their plea. I don’t know Texas law on those kinds of things, but perhaps that is where the system fails, not with plea agreements, generally.

9 MF 06.07.06 at 4:35 pm

There is one more possibility for righting the wrong (of an innocent person accepting a plea instead of facing false evidence and being wrongly convicted). It doesn’t happen very often, but the governor of the state (or POTUS, for federal crimes) can pardon the wrongly convicted person. I don’t know if that’s the same thing, because the part I don’t know is whether the act of a pardon also clears the pardoned person’s record of the crime.

10 Ima Fish 06.08.06 at 11:06 am

“Now deal with the situation I posted.”

I did deal with it. A person who is convicted of a specific charge at trial and is sentenced on that specific charge is NOT being punished for having his or her trial. They key phrase is “for having his or her trial.” Is he or she being punished? Sure. But you cannot show me any evidence that someone is getting additional punishment for going to trial.

There was a time before sentencing guidelines where defendants were in fact punished for NOT taking the deal. Judges had complete discretion to sentence and took advantage of it. Judges routinely would give harsher sentences to defendants who went to trial because they “wasted” the courts’ time. But, that no longer happens. Now judges have to sentence within the guidelines thus there is no additional punishment.

And it simply doesn’t matter if the defendant is “really” innocent. If an innocent person is convicted on specific charge at trial and is sentenced to that charge under the guidelines, where is the additional punishment for going to trial?

When you are convicted of X and get sentenced for X there cannot ever be additional punishment for not taking the plea.

11 Deoxy 06.08.06 at 2:58 pm

“I did deal with it.”

No, you ignored it.

The situation is one where innocence is completely and utterly not in question, yt because they were able extract a plea agreement before the “evidence” was shown to be a completely crock, that person is still in jail (barring any grants of clemency).

And your statement about pople being no longer being punished for going to trial…

OK, in the “old days”, 2 guys come in with exactly the same crime, under exactly the same circumstances, etc. One goes to trial, the other takes a plea. The guy who went to trial gets sentenced by the judge to more time.

In the “new and improved” system, guys come in with exactly the same crime, under exactly the same circumstances, etc. One goes to trial, the other takes a plea. The guy who went to trial gets chargeed with more stuff by the prosecutor and gets sentenced to more time.

Now, how, exactly, are those to cases different? THEY AREN’T.

The rest of the public can se what prosecutors are being willfully obtuse about.

“If an innocent person is convicted on specific charge at trial and is sentenced to that charge under the guidelines, where is the additional punishment for going to trial?”

BEING CHARGED WITH MORE STUFF. You said it YOURSELF. If it’s a lgitimate charge, IT SHOULD ALREADY BE INCLUDED.

All you’ve done is switch where the discretion is applied.

And unless the system is 100% accurate, the people MOSE hurt by this system are the innocent who dar to insist upon their innocence.

You also didn’t deal with the issue I posted last: that 99% of people will plead guilty if the disparity of punishment is high enough.

It’s a simple game of numbers and confidence in the infallibilty of the system.

If Joe off the street believes the system to be infallible, thn the disparity in punishment doesn’t matter: if he is guilty, he’ll plead, because it’s the best deal, and if not, he’ll get his day in court to prove it.

Unfortuntely, the system is fallible; most people know that. If you tell them that they can go home if they just plead guilty (the years of probation, etc, aren’t mentioned), vs spending more time in jail (as some people can’t post bail) followed by a trial that they aren’t 100% sure will exonerate them, well… put yourself in that position.

THAT is what’s wrong: the system has been repeatedly shown to bring about false guilty pleas. REGULARLY.

That is unjust. And you are defending it.

12 Ima Fish 06.08.06 at 5:03 pm

“exactly the same crime”

That’s the mistake you are making. They are NOT the same crime. When someone pleads guilty they plea to a lesser charge or some other benefit which would differentiate them.

So let’s assume that two people commit two separate murders. One pleads to 2nd degree and the second is convicted of first degree. It only makes sense that the person convicted of the higher charge gets more punishment. But the fact that he or she is getting more punishment is in no way related to the trial. It’s solely because of he or she was convicted of a higher charge.

Under your system, a person convicted at trial of first degree murder should only be sentenced for 2nd degree murder, MERELY, because somebody else, under different facts, and with a different criminal history, pled to 2nd degree murder. How does your system make any sense? And let’s take it further…

Under your system, no one would EVER be sentenced to first degree murder! And because people charged with 2nd degree murder sometimes plea to manslaughter. No one could ever be sentenced to 2nd degree murder. Taking it to your illogical extreme, no one would ever face any sentence because someone, somewhere received no jail time after pleading guilty for stealing a pack of gum.

I’ve asked you to show me an instance where a person was punished FOR HAVING A TRIAL. You’ve yet to show that. You’ve showed examples where people receive higher punishments for being convicted of higher crimes. I.e., compare apples to oranges in an extremely ignorant manner.

And here’s the important thing you should consider. Getting rid of the plea deal system will NOT help innocent people!

You say that innocent people take their chances at trial and are convicted and punished, and that’s wrong. But how would that be any different if plea deals were not offered?! They’d still go to trial and still be convicted!

13 Deoxy 06.09.06 at 1:29 pm

“exactly the same crime”

Th crimes committed in the scenario ARE the same. That’s the point. They are not givn the same CHARGES. If you can’t differentiate betwn the two, you have problem.

For the same exact crime, with the same level of guilt, the person who goes to trial gets more time than the one who takes the plea.

All you’ve changed is whether the judge sentences them to more or if the prosecutor charges them with more.

If it was wrong when the judge did it (as you’v already said), it’s still wrong now.

“Under your system…”

No, you have completely and totally misunderstood me.

Under my system, you wouldn’t be able to offer to charge someone less if they just admit their guilt. That is, if the charge should be applied, it is applied. If it shouldn’t, it isn’t. Whether or not the person pleas has no effect on what they are charged with.

“I’ve asked you to show me an instance where a person was punished FOR HAVING A TRIAL. You’ve yet to show that.”

No, you’re just being willfully obtuse.

The punishment is additional charges. ***Unless the system is 100% accurate***, additional charges are additional risk. To put it another way, ***unless the system is 100% accurate***, additional charges average out to more punishment.

“You say that innocent people take their chances at trial and are convicted and punished, and that’s wrong. But how would that be any different if plea deals were not offered?! They’d still go to trial and still be convicted!”

Again, you’re being willfully obtuse. I’ve made this point MULTIPLE times, (as have many others).

MOST people aren’t wrongly convicted.

BUT, if you ratchet up the additional charges far enough, that is, if you make the disparity in possible punishmnt large enough, it becomes BETTER ON AVERAGE to take the plea and serve the 100% guaranteed small amount of punishment than risk the enormous punishment, even if the risk is relatively small.

To go to the absurd example, if additional charges piled on resulted in a possibility of the death penalty, while the plea agreement was, say, 1 year in jail… well, how high is your confidence in the accuracy of the system?!? Take 1 year in jail, or take a 1% risk of execution. Innocent or not, many people are would tak the year in jail.

THAT is the choice you present to innocent people every time you pile on more charges if they don’t plea.

“Getting rid of the plea deal system will NOT help innocent people!”

YES IT WILL, for one INCREDIBLY simple reason, which has been stated MANY TIMES RIGHT HERE: because innocent people won’t be induced into false confessions (innocent person taking a plea agreement).

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