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  • Pleading With Satan

    William Fisher

    By William Fisher

    President Obama is fond of waxing eloquent about "the majesty of the rule of law." A prosecutor reminds us that we're the only country in the world where a defendant's innocence is defended with at least as much passion as his guilt is attacked. A judge rolls out all his Sunday adjectives to extol the blessings of the jury system.

    This is, of course, rhetoric, and talk is cheap. Bottom Line: It's not true. Or it's only partly true. Or it's true only a tiny fraction of the time. Whatever.

    But when I hear pronouncements like these, I am invariably reminded of some of the tawdry practices that threaten to shatter our criminal justice system.

    Tim Lynch, who runs the Cato Institute's Criminal Justice portfolio, has written about one of those practices in an article he calls "The Devil's Bargain: How Plea Agreements, Never Contemplated by the Framers, Undermine Justice." The article appeared in the July 2011 issue of Reason.

    Lynch writes that the point of the article is that" most Americans are under the mistaken impression that when the government accuses someone of a crime, the case typically proceeds to trial, where a jury of laypeople hears arguments from the prosecution and the defense, then deliberates over the evidence before deciding on the defendant's guilt or innocence."

    Well, according to Tim Lynch, me, and just about everyone associated with the criminal justice system except prosecutors and bookkeepers, this image of American justice is "wildly off the mark," as Tim puts it,

    He says, "Criminal cases rarely go to trial, because about 95 percent are resolved by plea bargains. In a plea bargain, the prosecutor usually offers a reduced prison sentence if the

    defendant agrees to waive his right to a jury trial and admit guilt in a summary proceeding before a judge."

    This procedure was not contemplated by the Framers. The Constitution simply says, "the Trial of all Crimes, except in Cases of Impeachment; shall be by Jury."

    So it's not as if one of our storied forefathers corralled his colleagues and said, Hey, Colleagues, let's come up with a system that's better and cheaper than juries and would also relieve any doubt about guilt or innocence and, that "would replace jury trials with a supposedly superior system of charge-and-sentence bargaining," as Tim Lynch puts it.

    Tim Lynch likens the growth of the plea deal to the growth of government in general. "Plea bargaining slowly crept into and eventually grew to dominate the system," he says.

    He goes on: "From the government's perspective, plea bargaining has two advantages. First, its less expensive and time-consuming than jury trials, which means prosecutors can haul more people into court and legislators can add more offenses to the criminal code.

    "Second, by cutting the jury out of the picture, prosecutors and

    judges acquire more influence over case outcomes.' Once a defendant pleads guilty as part of a plea deal, he's guilty. No one has to sweat it out while the Law and Order-type jury comes to its decision."

    Supporters of plea deals also point out that a plea agreement, requiring only the approval of the judge, saves the court endless hours of litigation.

    From a defendant's perspective, writes Tim Lynch, "plea bargaining extorts guilty pleas. People who have never been prosecuted may think there is no way they would plead guilty to a crime they did not commit. But when the government has a "witness' who is willing to lie, and your own attorney urges you to accept one year in prison rather than risk a ten-year jury sentence, the decision becomes harder."

    But not always. To begin with, what if the defendants are innocent? Such things have been known to happen with frequency in courtrooms all across the county. In this situation, innocent people are getting locked up for crimes they did not commit.

    And sometimes the choice of plea or no plea seems like no choice at all. Four men from upstate New York were arrested for "material support of terrorism" a few years ago. The prosecutor's deal was "confess or you will find yourself in Guantanamo Bay forever." The four confessed and are serving time in the US.

    Or how about a plea when the defendants are guilty? Why should guilty men get reduced sentences when they know they're guilty. The answer is: Because they Can.

    By signing on with the DA, the guilty party absolves him/herself of guilt for the crime he was to be charged with (more serious) and accepts the one he's plead to (less serious). Which could mean the criminal would be out on the street and doing what he does while those charged with the original crime are still serving their time.

    Why has this happened? There are a number of reasons but the primary one is cost. The costs of preparing a case, empanelling a jury, and conducting an average trial, tends to vary somewhat depending on location, complexity, time required, and other factors. But a recent Wyoming murder trial believed to be at the low end of the cost scale cost $111,000.

    Later, if the defendant is found guilty, it will cost $55.09 on average per day or $20,108 per year to keep an inmate in prison (FY0708),

    The impact on the courts' caseloads is immediate. The 1,195 jury trials conducted in 2011 are one-third the number held in 1996, according to the Texas Administrative Office of Courts. During the same period, the number of lawsuits filed rose 25 percent. In 1996, juries decided one out of every 48 lawsuits filed. Last year, only one in 183 new complaints.

    Says Houston trial lawyer David Beck, "We are seeing our rights to trial by jury disappear before our eyes." To which many other lawyers, judges and defendants argue that justice should never be held hostage to the mountain of unprocessed paper work that might one day become the organized basis of a real jury trial.

    Someone -- a lot of someones -- ought to be reminding our President that justice is not simply a cost-benefit analysis. Some of our sentencing rules may well be demented, but we do have rules. They should be changed, then followed.


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