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.
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.