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Take the Deal

April 30th, 2007 by Celeste Fremon


In this morning’s NY Times, legal columnist Adam Liptak writes about something that’s been troubling me for a long time:
The pressure on those accused of a crime, particularly if the accused is low-income, to take a deal rather than go to trial. I’ve personally seen it occur on a zillion occasions. And certainly, in many cases, the deal is the best course. But where the pressure gets the most troubling is when the accused doesn’t happen to be….well….guilty.

Liptak also focuses on civil cases, which present their own kind of problem in terms of the prevalence of settlements. But it’s the world of criminal courts with which I’m the most familiar—and in which this deal-making trend seems to be particularly pernicious.

Here’s what Liptak has to say:

In criminal cases, the vast majority of prosecutions end in plea bargains. In an article called “Vanishing Trials, Vanishing Juries, Vanishing Constitution” in the Suffolk University Law Review last year, a federal judge questioned the fairness of the choices confronting many criminal defendants.

Those who have the temerity to “request the jury trial guaranteed them under the U.S. Constitution,” wrote the judge, William G. Young of the Federal District Court in Boston, face “savage sentences” that can be five times as long as those meted out to defendants who plead guilty and cooperate with the government.

The movement away from jury trials is not just a societal reallocation of resources or a policy choice. Rather, as Judge Young put it, it represents a disavowal of “the most stunning and successful experiment in direct popular sovereignty in all history.”


In California, with its overburdened criminal courts,
there is a palpably strong prejudice against trials, which are after all quite expensive. With the high profile or affluent accused—Phil Spector, O.J. Simpson and an array down from there— we are content to spend the money. But with your average gang member…or, say, homeless drug user, the indirect, and often quite direct implication is, “Dude. You’re nobody, so why in the world would we want to spend time and money on you? Take the deal or we’ll bury you. Count on it.”

And in most cases, prosecutors are more than able to make good on the threat. In gang cases in particular, presumption of innocence is all too rarely present. “Prove” the kid is a gang member, and the rest of the road is greased. Juries will fill in the blanks as long as prosecutors provide even the most minimal trail of breadcrumbs.

Got no good witnesses? They must be out there but afraid to testify. Witnesses say the defendant doesn’t really look like the drug dealer (or the robber or car jacker or shooter)? They must have been threatened by gangsters. Kid didn’t have anything to do with the crime but was just standing in the area? He’s a cold-hearted gangster so he must have had a part in it. Or if he didn’t, he might next time. (In a gang case, the movie “Minority Report” plays like a documentary.)

On the other hand, there is an entirely different way to look at deal making in the criminal system: At times, it’s an act of kindness and mercy.

Here’s what I mean. In California, with its draconian determinate sentencing laws, not to mention the sentencing “enhancements” piled on in addition, deal making is often the only way a just prosecutor has of meting out a discretionary sentence that is more proportionate to the crime than the law would actually allow.

(The fact that discretion is now almost solely in the hands of prosecutors, instead of judges, is a is something that ought to give us pause. But that’s another subject altogether.)

Yet, whether merciful or bullying in a single instance, the sheer force of the trend is disquieting.

Somewhere in his column, Liptak quotes Antonin Scalia, never my favorite Supreme, but dead on with regard to this issue. Here’s the citation:

In 2004, in the process of revitalizing the role of the jury in criminal cases, Justice Antonin Scalia of the Supreme Court wrote that there were good arguments for “leaving justice entirely in the hands of professionals.” But that is not the theory of the Constitution, he continued, which enshrined “the common-law ideal of limited state power accomplished by strict division of authority between judge and jury.”

Exactly.

Posted in Civil Liberties, Courts, crime and punishment, Gangs, Supreme Court | 3 Comments »

3 Responses

  1. Woody Says:

    They should set up the court like Howie Mandel’s “Deal or No Deal,” where they have different plea bargains on a board and you get to choose one at random and then get your best deal by eliminating the bad ones. It would be as fair and would provide fun while freeing up the courts.

  2. richard locicero Says:

    Of course without plea bargaining the whole system would be even more chaotic then it is now as there would not be enough courts or judges to hear all the cases at trial.

  3. Sparky Says:

    Another consideration regarding plea bargaining is whether the defendant has a prior conviction that the prosecutor can use at trial; although the facts of the prior must be limited to show only motive, opportunity, intent, preparation, plan, knowledge, identity and absence of mistake or accident, it usually makes a juror think that if the defendant did it before, he or she would do it again. Then there is the situation where the prosecutor threatens to add additional charges which would increase potential penalties if the defendant does not “take the deal.”

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