Justin M. Crozier Feb. 16, 2016

I wanted to spend a little time talking about plea bargains.   Plea bargains are a somewhat confusing part of the law for those who have not been involved in the criminal justice system, and they aren't too far off of a civil law "pre-trial settlement,"  though that is probably a discussion for another time.

A: Why would I take a plea bargain, I'm innocent!?

Whew, that is a tough question.  The reality is that, especially for people who have committed a crime in the past and been convicted, that taking a plea bargain is the safest thing they can do even when they are factually innocent.  Crazy, right?  Well, it turns out that for multiple offenders and for people who have been convicted of a certain subset of crimes (drugs, violence, etc.) that a second or third offense carries such a heavy penalty that if you don't win your case, then you are going to jail for a long time.  However, a prosecutor might amend that charge to a much lesser offense and then the "criminal" will only have to kick around in their tiny steel cage for a relatively short period of time.  Juries tend to have a bias that "if you get to trial you are probably guilty."  Which is funny considering that we have a Presumption of Innocence.   But, because of that bias, it can be very challenging for someone to "prove" their innocence.  If you had the choice between 10 months in jail for certain or risking 10 years... well, you might have to consider long and hard before you turned down the deal, even if you are innocent.  Maybe we should get rid of some of those mandatory minimum sentences as a way to make this kind of aggressive plea bargaining less tempting (an obligatory thanks to the late great Scalia).  But even then, a long criminal history is going to make a plea bargain tempting.

B: Well, couldn't we just go to trial on everything?!

Oh boy, no I don't think so. Currently, around 1-2% of all criminal cases go to trial.  That is a lot of plea bargains.  Consider this, though, even at that rate, our courtrooms are clogged.  If we added a couple more percent to that number, it would become nearly impossible to get anything done.  It's actually a little scary how close we run to the ragged edge on this stuff.  I guess if we stopped prosecuting drug crimes (or at least decreased the number of them that we prosecuted) then we would probably have some breathing room, though I imagine those are pleaded more often than other crimes are.  

Plea bargains, while not strictly a constitutional right, are actually very beneficial to the system.  There are a number of times when people are clearly guilty and there is no real reason to take the time and expense of going to trial.  The criminal doesn't want to pay an attorney for that much time and the citizens can't spend an infinite amount of money prosecuting everything fully.  By allowing plea bargains to exist and to help clean up the less complex docket of the court, we actually allow more room (and time) to focus on the more critical cases that require that level of attention.  

Certainly, it is a frightening idea that someone could be looking at a sentence that seems to far exceed their potential crime if they do go to trial (seems like it should be unconstitutional, but what do I know).  However, if they are guilty and the prosecutor can work around that mandatory minimum and still keep the legal gears a-churnin' then we have to accept that plea bargaining is a critical part of the criminal law system.

Good luck out there.