When I was in college, I needed a certain number of credit hours in a certain category (I cannot remember what), and I just looked at what was available that would fit that slot and took the most likely class.

In this case, it was a class called “Law and Society.” The textbook had the same name.

I wasn’t really sure what it would be about, or if it would be interesting, but I was pleasantly surprised.

It turned out to be about controversial subjects and how they are handled in/by the courts.

In the syllabus, the prof had created a whole section for each of several controversial issues.  One for abortion, one for capital punishment, for instance.  And within each section, I had to read voices from both sides (and sometimes voices from the middle).

So, for the abortion section, I read not only the summary of Roe v Wade, and a few other landmark abortion-rights cases, but also the dissenting opinions and some articles from anti-abortion spokespeople.  And then I was expected to write a paper outlining my own position on the subject and giving my reasons for my position.

It was challenging and interesting, in part because I’d never read so many court cases before. I discovered that even though they are full of citations of previous cases (and that is boring as hell to read generally), they are also full of really great stuff. If you want to understand why that evil activist liberal judge ruled that awful way, read the opinion.  You might discover things you didn’t know.

But then a subject popped up that I knew very little about.

Plea bargaining.

Honestly, at the time, I didn’t even know it was controversial.  I knew basically what it was, but just took it for granted.


I found that it was the hardest section of that course for me, because even today I still don’t know how I feel about it.

Here’s the case that was offered for consideration. I no longer have the syllabus and the case is not in the book, so this is coming from memory and I may have some of the details incorrect but this is the basic scenario.

A single mother who lived in government housing was swept up in a drug raid in the housing project along with a dozen or so other people.  All the defendants were jailed and then offered a plea bargain.

This woman faced a really unfortunate dilemma.  She had no way to post bail.  If she insisted on her innocence, she would have to stay in jail waiting for her trial.  As a result, the state would have to place her children in foster care, she would lose her job, and in addition, she might well lose her apartment, and she’d spent a considerable amount of time on a waiting list to get the apartment in the first place.  In other words, disaster.

She opted to take the plea deal. In the end, I believe she lost her apartment anyway, because of her conviction.

Several other defendants were in more fortuitous circumstances and were able to either bail out or didn’t lose anything by waiting for trial. And at the first trial, evidence was presented that conclusively proved that law enforcement officers had totally overstepped their boundaries and arrested a whole pile of innocent bystanders. She was one of them.

The other innocents were cleared.

She was not.

She was not because she had taken the plea and therefore was considered guilty no matter what evidence appeared later on.

I tell you, if you read that woman’s story, it will rip you apart.  You’ll come away hating plea bargaining as a deal with the devil.


But there is a reason why controversial issues are. . . controversial.

They are almost always way more complicated than it appears by looking at one account. And there are often more than two sides to the story.


Have you ever noticed that when the news networks have a discussion on a controversial issue (abortion, anyone?), they will put somebody on who is strongly anti-abortion and another person on who is just as strongly pro-choice and then they sort of moderate in the middle as the two sides duke it out.  I typically tune out those types of “discussions.”  There is heat generated, for sure, but very little light.  It’s a very important thing to understand that there aren’t just two opposing views, there are often about a million of them.

Plea bargaining has existed, in one form or another, practically forever. “Confession” is a form of plea bargaining which sometimes meant that the confessed criminal was not executed.

And in the United States, plea bargaining has been used extensively even in the 19th century.

After all, when somebody admits their guilt, there is really no reason to go through a whole trial over it. The prosecutor would simply offer some sort of recommended sentence, the admitted criminal would agree, the judge would bang his gavel and the whole thing was over.

But back in the day, jury trials were very rapid.  Courts would hear a dozen cases in a day.  Imagine a dozen jury trials coming through one courtroom in one day.

One jury would hear all those cases. That meant there was no jury selection. You took whatever you got.  It also meant that there was little time to do more than tell your side of the story and for the prosecutor to tell his and the jury to decide.  There was no forensic evidence to be analyzed because science was in its infancy. There were few if any appeals, so nobody was doing anything to ensure that a verdict would be appeal-proof.

Using any common sense at all,  the veracity of all those verdicts has to be questioned.  Yeah, you got a jury trial, but what sort of trial?  Hell, with all those cases being heard, was the jury really even listening?

So, as time progressed and trials got more complicated because people understood more about evidence and things like “chain of custody” (who had possession of the glove? does it fit?) and scientific stuff like fingerprinting developed, trials simply began to take longer. Voir dire was introduced (jury selection).

We are one of the most litigious societies on earth.  We put more people in prison than any other nation, and we can argue all day about why that occurs and what should be done about it.

And that simple fact is one of the things  that drives the popularity of plea bargaining, but it’s not the only factor. The other factor is that trials began taking more and more time.  So we had too many people being charged with stuff and too little time for the courts to deal with them.

Judges and prosecutors began looking around for a way to clear their calendars in a way that might be reasonably fair.

The result was to grab an old tried-and-true ploy: the plea bargain.

After all, doesn’t it make sense to deal with a situation where a man charges over to a woman’s place of business and calls her a “cunt” along with some other nasty expressions by plea dealing and save the trial time for some other guy who actually may have done something terrible, like murder or armed robbery?

I’ve demonstrated a case where a plea bargain actually hurt a defendant. But in many cases, the outcry against plea bargaining comes not from the defendants, who are often delighted with the whole thing, but from victims who believe that the perpetrators are getting off with little to no punishment.

Obviously, one of the reasons defendants accept plea bargains is that they expect to get a lesser charge, often with a far milder sentence, than they might expect if they went to trial. And trials are not without danger.  Even the person who is certain he is innocent might not be found so in a jury trial. The plea is certain.  The defendant knows when he agrees to it what his sentence will be.  It’s all done.  There won’t be any surprises.

And another thing is that with plea deals, there is no discovery (that’s why the opposing sides get to dig into the background of the other side, looking for stuff). So the defendant who might be guilty of far more than calling somebody a “cunt” might find himself facing other charges as well for things that nobody knew about until the jury trial and discovery happened.

And just like “sales” on Black Friday, the prosecutors “sell” plea bargains by upping the “retail price”(the basic charges)  so that the plea looks more enticing to the defendant.  Go to trial and you face a possibility of a far greater penalty than you bargained for.  Accept the plea and you go home right now and everything is done.

There is an argument made that plea bargaining is unconstitutional because it deprives a person of his right to a jury trial, but the Supreme Court has decided that simply isn’t so (Brady v United States, 1970).

In essence, if a person has in fact done the thing they are charged with doing (called a woman a “cunt”), and the only issue is whether or not there is a reasonable excuse for having done so, taking a plea is probably the wisest course of action.

If, on the other hand, a person is accused of strangling his next door neighbor and he knows he’s innocent, well, it’s probably a better idea to hold out for that jury trial.

And yes, innocent people, like the poor woman in the case I mentioned earlier, get caught up in the system and suffer unfair consequences, sometimes very serious, very unfair consequences.  If you happen to be a minority, your risk of having this happen is orders of magnitude greater than if you happen to be white.

But the same thing can happen in a jury trial.  Just ask someone who works with the Innocence Project and they’ll tell you all about it.

Determining guilt or innocence regarding an event in the past is difficult at best, and impossible at worst. We are not gods. We’re just folks.

So in the end, is plea bargaining a deal with the devil?  Or is it way to be soft on criminals?

Or is it just an imperfect system in an imperfect world managed by imperfect people?  And maybe do we need to look at the criminal code again and decide that some of these things we label “crimes” might not really be worth bothering with in the first place?

I don’t know the answer.






25 thoughts on “Pleading”

  1. Sally, thank you so much! Another very informative, thought provoking blog post!
    ( and so much on point right now)


  2. i for one am glad…nay..ecstatic, that the dumbass mentioned in the case you may or may not have been referring to has decided on a jury trial. The real trick is finding enough of his peers to fill those seats. How do they weed out any rational thinking humans? I can offer up some suggestions for the questioning of potential jurors…

    1. If faced with 3 or 4 walls which would you choose?
    2. White bucket or the more traditional Orange?
    3. White or wheat for your milk sandwich?
    4. At what age do you force your kids into manual labor 1 or 1 1/2?
    5. if your bumper falls off what sort of tape do you use to reattach?
    6. are you a prophet? If yes, what type?
    7. When calling women cunts is it used in defense?
    8. When confronted by a real man do you hide behind your wife?
    9. How many times a week do you eat Hardees?
    10. When faced with reality how do you react? Do you quote memes?


  3. Here’s my question : if someone fucks up and forgets about discovery, say due to completely organic memory loss caused by heavy Marijuana usage (probably organic, so healthy? ), can the fuck-up tuck tail and say, “Shiiiiiiit. I totally made a mistake. Can I please, oh please, take a plea?” I believe Jabba has made a bet that he’s smarter than a jury and he’s forgotten that his past transgressions are not going to paint him as a nice fellow. Funny thing about being a life-long asshole and a bully towards women is that people don’t forget and they actually get gleeful when they have a chance to be safely heard. I think this is going to go sideways for Jabba. Should be an interesting show.


  4. When will this event be taking place? Or is it still a surprise? If J loses does he incur court costs in addition to his sentence?


  5. Joe’s jury trial (I assume that’s what you’re asking about) is in mid-May. No idea about costs, etc.


  6. I’ve been on trials as a juror where it went all the way to closing arguments, and the defendant and his attorney decided to accept a plea bargain on lesser charges because he was really close to being convicted (oh yeah, tell me one jury who doesn’t discuss the case behind the jury room doors). Guess those lightning bolts coming from the jury’s eyes didn’t help. We were sent back to the jury room and then called back to have the judge say that Mr X has pled to these charges and our service has ended.

    It’s like the gang member who shoots someone in plain sight of witnesses, security cameras and pleads not guilty, even though all the evidence is conclusive. I think the defense attorney (most likely a public defender) just wants trial practice. When a jury comes back in 3 hours, it’s pretty clear.

    The trial of he who shall not be named will be interesting. Especially if there is discovery.


  7. I had no idea the United States had such a high incarceration rate (per % of population). Apparently, it’s sitting at around 666 people per 100,000 of national population. As a comparison, here in Australia it’s 162 people per 100,000.
    US Incarceration Rate
    Australian Incarceration Rate

    Why on earth I wonder, did a certain person elect a jury trial over a plea? Pleas seem to have worked so well for him in the past….. Perhaps they wished for a Jury trial because they aim on presenting all their “documentation” of whatever they have documented. Which absolutely makes me wish I was going to be there.


  8. Soooo glad you’re back, Sally. Another post that uses this KY stupidity and turns it into a learning opportunity.

    I’ve said it before. Cops in my area have a bad habit of arresting quickly and letting the courts sort it out later. I’ve already told my husband if they ever arrest me, I will sit my ass in county. My medical conditions will make it very difficult and inconvenient to house me. Either I’d be RORed or charges dropped pretty quickly. But I’m lucky. I’m white, educated, no past criminal history, with close ties to the community. Most likely I’d be arrested for something pretty minor, like pot or feeding the homeless without a permit (a citation by itself, but they’ve been arresting people by considering the act as “disorderly conduct”).

    Now, if I was a career criminal back in court for my umpteenth charge, unless I have AMAZING attorneys, you bet your ass that I’m pleading out.


  9. “After all, doesn’t it make sense to deal with a situation where a man charges over to a woman’s place of business and calls her a “cunt” along with some other nasty expressions by plea dealing and save the trial time for some other guy who actually may have done something terrible, like murder or armed robbery?”

    Sally, are you saying what this man did shouldn’t be considered a crime?

    To me it seems what he did was ‘terrible’. It must have been frightening to the woman and especially her little girl.

    Should this kind of thing go unpunished? I don’t know Joe personally, thank god, and I don’t know what he’s capable of doing. It seems like this incident could be an indicator of worse behavior to come.

    Also, the ‘like’ button is still missing, at least it is on my phone. 🙂


  10. “can the fuck-up tuck tail and say, “Shiiiiiiit. I totally made a mistake. Can I please, oh please, take a plea?” ”

    Yes. I was once in the jury pool and a bunch of us were sitting around until noon when the bailiff came in, announced that a deal had been struck and we were all excused for several years. We were all stiff, hungry and bored to some degree or another. I had brought two books and a GameBoy so I was prepared for just this sort of event.


  11. Is he taking the jury trial as a “hail Mary” because if he accepts the plea, it could affect the CPS case? If he’s in violation of probation, or has simply shown a pattern by re-offending, doesn’t that kinda support CPS’s notion that the parent’s obsessive aggression about all things pertaining to their rights (real and imagined) poses a potentially unhealthy situation for the kids? I’m thinking maybe there are some consequences we don’t know about. (and I certainly could be wrong)

    Maybe he’s taking the jury trial because the plea would cause consequences he’s trying to avoid?

    If so….I think he’s going to end up with far more consequences from a trial. Joe is unlikable. And stupid. And has a past history of menacing.

    There is absolutely no justifiable reason on Earth to stay in a shop you’ve been asked to leave. There’s no justifiable reason on Earth for Nicole to dig in and refuse to take the video down of the shop. There is no justifiable reason for Nicole not to immediately apologize.

    A normal jurist is going to ask themselves:

    1. Why in the hell is Nicole filming another person’s dog and publishing it? And “as evidence I wasn’t doing anything wrong” is a VERY SUSPICIOUS answer. Makes her look guilty as fuck of using bad judgement in the past that people have made note of. (which is true…so…yeah, the jury is going to go…ok, this is weird, the community seems to have had problems with these people in the past)

    2. When the owner became upset, whatever the reason…fair, unfair, or completely random….if the owner was upset about the video, why didn’t Nicole apologize immediately and take it down? That is what the jury will want to know…and there is no answer. Because Nicole.

    3. When Nicole had other means to explain herself…email for example, if her intent was to “smooth things over and explain” as she’s claimed….why in the hell did she force herself into the woman’s shop when it was made clear she wasn’t welcome? She could have sent a brief apology note and asked for permission to talk it over in person…or she could have phoned and asked if they could meet. That’s how feathers are smoothed. NOT by barging in and demanding your account of events is accepted. And why in the hell did she bring Joe? Joe had absolutely nothing to do with any of it.

    4. There is no excuse for Joe to call a woman a Cunt in front of a child in a shop. Particularly, after she has asked him to leave. And that’s the one item that the jury will unanimously agree on that ends in a guilty verdict.

    I think Joe and Nicole believe that the general public is as easy to manipulate as their clueless followers. They’re in for a huge surprise. In real life, you can’t delete the things you don’t like and play victim to the rest. And if you try? It will be nakedly obvious you’re a con artist. And shocker of shockers….people really don’t like con artists.


  12. Sally, are you saying what this man did shouldn’t be considered a crime?

    I didn’t say that at all. What I said is that when you are totally covered up with cases coming through the door of the ER, you have to do triage to cope with it all. In the same way, the courts don’t have enough hours in the year to try all these cases.

    A person convicted of a crime via a plea deal is still convicted.


  13. Is there good evidence of JoJo calling her a C? I don’t normally wish bad upon people but I personally am getting real sick of seeing the way they treat people. I imagine it will be really hard to keep up with the 20 million sock accounts and pages if JoJo finds himself locked up.
    I don’t imagine a sentence for menacing is very long? Slap on the wrist I’m sure. Naugs will brush it off, water down a duck’s back. It WILL most definitely be someone else’s fault. They’ll scream injustice! Someone is out to get them without the court house walls! *Eye roll*


  14. Is there good evidence of JoJo calling her a C?

    There’s no question about it. Not only has Viv said he did (and her daughter witnessed it) but Joe and Nicole said he did as well.


  15. Also, the ‘like’ button is still missing, at least it is on my phone. ?

    I have spent most of the morning trying to fix it. I have no idea what is wrong. I’m getting nowhere. I even removed it and reinstalled it. I tried installing a different one. Nothing works. I feel horrible (aftermath of a respiratory infection) and that’s all I can do right now.


  16. @Penelope Wise: When you dig into the numbers, it turns out that poor people from disenfranchised neighborhoods who are in relatively good health and of working age make up a disproportionate percentage of the incarcerated. And the prison system is increasingly privatized, that is, run for profit. And the amendment that finally made slavery illegal in the U.S. includes a clause that allows the incarcerated to be forced to work in conditions that are essentially slavery.


  17. I know we all hope that the guilty-as-sin person going to jury will show his true colors and the jury will see it as clearly as we do, but I doubt it. I believe as strongly as I believe anything that he will walk away from this with a spring in his step and a twinkle in his eye. There will be no consequences. It’s just what happens.


  18. Sally – you have an excellent skill – taking a subject that can be very confusing and explaining it in a way that makes it accessible for most people to understand, or at least understand it a little better than before they read your explanation.

    I work in a law office, and have worked in the legal field for close to 30 years, first as a legal secretary, then a legal assistant, and now I manage a law office, handle the bookkeeping and the payroll, the time keeping, along with the legal assistant stuff. And I still benefited from your blog today.

    And that’s the primary reason I read here, because I enjoy intelligent conversation and learning new things. I’ve been around for a long time, but the more years I put on this body, the more I realize how little I really know. I’m willing to be educated though 🙂


  19. Some of hr ardent humpers have turned on her wit her refusal e the Chemical attack in Syria, according to her its all a lie and mostly photoshopped. No matter how you feel and I have no love at all for trump, he did the right thing here. NN is a nitwit along with her fat ass husband.


  20. Heck, they are so famous that it will be hard to find an impartial jury. They may have to do this jury trial in another county where no one knows them. Gosh, I wish Nancy Grace was still on TV to cover this trial of these famous celebrities!


  21. the Chemical attack in Syria, according to her its all a lie and mostly photoshopped.

    I have never known Nicole or Joe to turn away from a loony conspiracy theory. They believe them all.

    We can debate if 45 “did the right thing,” but debating whether or not there was, in fact, a chemical attack on civilians is simply ridiculous.


  22. Maybe Nicole should look up Bana Alabed, the 7 year old little girl, who was tweeting and pleading from Aleppo for Asaad to stop the bombings which is killing her friends and classmates along with thousands of adults. She and her family have finally escaped Aleppo, but she has faced and witnessed what no child should ever see. What no adult should even have to look upon! She plead with Trump to end Asaad’s madness along with pictures of some of the children murdered by Asaad’s regime using chemical weapons. Nicole, ask Bana who has their hands on and is using chemical weapons. BTW… Bana can read and write in TWO languages and I’m certain she wasn’t ‘unschooled.’


  23. Plea deals, as they are done now, are terrible things. Far too many defendants take them because they are looking at a ruinous amount of time in jail. If a person could be released in a reasonable time, then a plea taken might more accurately reflect their guilt. If someone is failing being separated from their families for an extended time, especially over minor charges, then their basic civil rights are being violated.

    If I were to be arrested on breaking and entering that happened over a weekend when I was three hours north at a retreat that I could prove, yet I was facing weeks in jail before getting a trial, or I could take a plea and get out and go home to my autistic child who can barely be apart from me for the two nights of the retreats I go to, you can bet your ass I’d take the plea to minimize damage to my daughter. If I could get out without a bail that would financially devastate my family (you’re out the 10%, which means there’s a penalty even if you’re innocent and prove it), then I’d wait for a trial. Lucky for me, I’m in a position where we could come up with a good amount for bail. Many defendants, especially poor ones, can’t.

    Which makes plea bargains a form of poor tax. This system sets poor people up to fail since they can’t afford options, and in making them fail, helps ensure that poor people are more likely to stay poor.

    We certainly need a system where plea bargains can be used, but we very much need to revamp our entire criminal system so that innocent people aren’t put into positions of having to take pleas to try to minimize the damage to their lives. Eliminating plea bargains won’t do that, but reasonable bail based on a person’s ability to pay (and the court system reimbursing people found not guilty–that might incentivize judges to not set bail so fucking high over minor crimes) and enough public defenders will help.

    Of course, it’s not like there’s money to hire public defenders or pay for PBS or anything these days, what with bombs needing to be set off and more wars needing to be started and shit. So there’s no way that the system will be revamped to protect poor people, especially poor minorities. They should have thought about that before deciding to be born black or anything else other than white, I guess….


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