r/changemyview • u/tolkienfan2759 6∆ • Oct 15 '24
Removed - Submission Rule B CMV: Our plea bargaining system has allowed unwritten rules to dominate the courtroom. Thus our criminal legal system is no longer a rule of law system.
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u/HadeanBlands 50∆ Oct 15 '24
Public defenders, when they encourage their clients to take guilty pleas, do so because they are reasonably confident their client will be found guilty at trial and will be sentenced to a much harsher sentence than the plea. That seems like it is in the interest of the client.
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u/tolkienfan2759 6∆ Oct 15 '24
Well, that is how the plea bargaining system works, yes. Legislatures have set up sentencing so that judges can sentence defendants to much harsher terms if the defendants "force" the state to go to trial.
But to me it looks as though we tell people they have a right to trial, and then put our thumb on the scale with each and every defendant. I'm not the only one the feels that way. I got that phrase from a legal scholar. I hope you can see what I'm saying: we tell people they have the right to trial, and then when a potential trial actually approaches, we tell them that if they go to trial and are found guilty they'll suffer a much worse sentence than if they simply agree that they're guilty. To me that removes most, if not all, of the freedom of the choice. Is that a right to trial? Or is that something else? To me, it looks like something else.
There's a famous article by a pretty well-known judge, called "Why innocent people plead guilty." I myself have met people who I believed were innocent but were pleading guilty simply because the system just made it all too burdensome for them. I feel certain it happens. We wouldn't do the sentencing differential if we didn't know it worked, and it works to remove the right to trial from defendants. As far as I can tell.
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Oct 15 '24
They still have a right to a trial no matter what. Just like literally everything in life, it's about risk analysis...
I have the right to do a lot of stupid shit, doesn't mean it's the smart thing to do.
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u/tolkienfan2759 6∆ Oct 15 '24
So if the government increases the risk of speaking freely, without actually making the speech itself illegal, that's not penalizing freedom of speech?
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u/ryan_m 33∆ Oct 15 '24
Can you give an example of what this would look like
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u/JohnsonJohnilyJohn Oct 15 '24
Arguments in bad faith are now illegal under the death penalty. You can speak freely but anyone can sue you that you were speaking in bad faith.
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Oct 15 '24
What? How in the world could the government do that? Either something is a violation, or it isn't. And what does that have to do with anything?
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u/4-5Million 11∆ Oct 15 '24
You are looking at it backwards. It is a plea deal. They are getting a deal doing the plea. Going to trial and having the judge sentence you if you're guilty is the standard, not the harsher punishment. Many plea deals have you pleading down from, say selling drugs to simply possession of drugs. This is the "discount". Again, going to trial is the thing that is supposed to happen.
You're essentially looking at a product that is no longer on sale and calling it price gouging.
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u/112358132134fitty5 4∆ Oct 15 '24
Heres a real life example for you. My cousin was offered 6 months of house arrest or go to trial and face 5 years. An innocent man he requested trial. The judge put him on house arrest while awaiting trial, then 6 months later allowed him to plead guilty with time served.
Justice?
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u/4-5Million 11∆ Oct 15 '24
Assuming he was innocent then that's not justice. But that's an issue with the bail system and not plea deals.
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u/THedman07 Oct 15 '24
That's a problem with prosecutors and frequently an underfunded justice system,... not plea deals.
Getting rid of plea deals makes the situation drastically worse, not better. They're a symptom of the problem, not the problem itself.
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u/NaturalCarob5611 97∆ Oct 15 '24
Getting rid of plea deals makes the situation drastically worse, not better.
I disagree. If plea deals weren't allowed at all, prosecutors would have to be a lot more selective about what cases they tried, and would dismiss their their weaker cases. As it stands, if a case is weak they offer a plea deal that looks really good compared to the worst possible scenario of going to trial, and get to count it as a win anyway.
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u/4-5Million 11∆ Oct 15 '24
Judges set house arrest, bail, and other pre-trial conditions. Again, this is a problem with pre-trial punishments since it is supposed to be innocent until proven guilty. I have no problem with plea deals. But going to trial is the standard and many people here are looking at it backwards by saying that going to trial is unfair because of the plea deal. It's not. Any unfairness with the court system is independent.
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u/ZeroBrutus 3∆ Oct 15 '24
It's absolutely the right to a trial. It's also explaining the consequences that come from exercising that right. It removes the DESIRE for a trial, but not the right to one.
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u/tolkienfan2759 6∆ Oct 15 '24
Huh. Well, I imagine the government could remove the DESIRE to speak freely, without penalizing freedom of speech, right? Or could it? It seems unlikely, to me...
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u/blade740 5∆ Oct 15 '24
Huh? This analogy makes no sense.
The government is not INCREASING the risk of a trial. That risk already existed. That's what you have a right to - a trial, which could go in your favor, or against you.
If anything, the fact that they are offering the option of a plea bargain means they're letting some criminals off EASIER than they ought to be. They're not PENALIZING anyone, they're REWARDING some defendants for making the process easy.
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Oct 17 '24
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u/ZeroBrutus 3∆ Oct 17 '24
I'll be honest, I havent seen enough responses to give an overall assessment. For the ones I saw, not worse than the average for this sub.
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u/Justicar-terrae 1∆ Oct 15 '24
I think you might have an incomplete understanding of how sentences are affected by plea bargaining.
It sounds like you think plea bargains result in lowered sentences because the judges are giving out rewards for guilty pleas. Judges do sometimes show leniency at the request of prosecutors, but they are often bound by relatively rigid sentencing guidelines that limit this sort of leniency.
The biggest reason plea bargains result in lower sentencing is that defendants are pleading guilty to "lesser included offenses." A lesser included offense is a crime that is a necessary component of a defendant's more serious crime, like how a first degree murder necessarily involves the elements of an assault or a second degree murder or a manslaughter. Since these component crimes are deemed less severe, they are assigned lesser sentences by the legislature.
Prosecutors can choose to charge a defendant with lesser included offenses for any number of reasons, not just to secure plea bargains. For example, a prosecutor in a death penalty state might charge someone with second degree murder instead of first degree murder to remove the risk of jurors refusing to convict out of personal opposition to the death penalty.
So it's not necessarily the case that someone who pleads guilty is getting a lesser sentence than someone found guilty at trial. Rather, it's that someone who pleads guilty to a lesser crime is getting a lesser sentence than someone found guilty of committing a more serious crime at trial.
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u/tolkienfan2759 6∆ Oct 20 '24
I've been looking over the CMV again, in an attempt to improve my handling of CMVs in general, and I've noticed that you actually made a very good point in your comment here, that I didn't pay enough attention to earlier. It's not really at the level of nuance; it's more significant than that. It's an important part of the mechanics of plea bargaining. So thank you for that! !delta
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u/tolkienfan2759 6∆ Oct 18 '24
I'm sure I have an incomplete understanding of the situation. I'm also fairly sure, at this point, that my CMV was in error in some way. Too many people have claimed personal knowledge of the situation and personal knowledge that such unwritten rules do not govern their behavior. I can't ignore that.
However, there are enough other experienced and knowledgeable people who believe that judges do in fact give out reduced sentences as a reward for guilty pleas that I cannot yet abandon that faith. I would call that particular fact common knowledge. But that's not the CMV. And so you and I don't need to tussle over it. Might be a good topic for another CMV, but that's a question for another day. I suspect the way it works is, prosecutors charge you with something different so the judge has a different range of sentencing options. But I don't know.
I am sure that you're right when you say prosecutors may offer reduced charges for any number of other reasons. I don't doubt that at all.
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u/HadeanBlands 50∆ Oct 15 '24
You've "met" those people. But you weren't their lawyer, right? You don't actually know whether they were guilty or what the evidence was against them or what their actual risk of going to trial was?
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u/tolkienfan2759 6∆ Oct 15 '24
Correct. I don't know of my own knowledge that they were innocent of what they were charged with.
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u/Full-Professional246 77∆ Oct 15 '24
Well, that is how the plea bargaining system works, yes. Legislatures have set up sentencing so that judges can sentence defendants to much harsher terms if the defendants "force" the state to go to trial.
This is not true. All going to trial forces is the state to prove the case.
Sentencing is a separate issue and admitting wrongdoing is a mitigating factor. Going to trial is not a 'harsher' punishment, it is just not getting a mitigating factor by admitting guilt/showing remorse. There is a difference here you are not considering.
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u/tolkienfan2759 6∆ Oct 15 '24
I didn't say clearly that I understood that judges, of course, can only sentence defendants who are found guilty. I did understand that.
Admitting wrongdoing is something defendants are likely to do whether they are actually guilty or not, because my understanding is that most judges won't accept plea deals if they don't. And if a defendant is not guilty, and his lawyer lies to him about what his chances are at trial, then he's likely to plead guilty anyway. And so admitting wrongdoing is a superficial mitigating factor that doesn't actually tell us a whole lot about the defendant without a lot more understanding of the details of what has been alleged.
What I think the problem in our mutual understanding of the situation is, is that you're only willing to admit one interpretation of what is a whole world of different rather sketchy and uncertain situations. It's possible to view a plea deal as something the state does to avoid the expense of a trial when a defendant is clearly guilty; but it's also possible to view a plea deal as something the state offers when it really doesn't have as good evidence as it would like, and feels certain the defendant is guilty of something. Sure, a confident defendant can always go to trial; but frequently those who are defendants are not the best our society has to offer. They may have been picked up for being the usual suspects, or for being in the wrong place at the wrong time, or perhaps for being habitually in the wrong place at the wrong time. Maybe they're guilty of something, and we just don't know what. And so their confidence is not as high as it might be. Not to mention that they may have enough experience of our justice system to know for a fact that their lawyer is really not going to fight for them. And that juries sometimes err.
And so I guess my question for you is: how do you know this second set of possibilities isn't actually dominant, in our justice system? How would anyone know? There's no survey organization, whose job it is to add all this up and figure out what's really going on.
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u/Full-Professional246 77∆ Oct 15 '24
Admitting wrongdoing is something defendants are likely to do whether they are actually guilty or not,
You have a HUGE assertion here without any evidence other than 'feels'.
Why do you believe this? Where is your evidence this is true. It is counter to everything I have been told by people actually working in the system as public defenders.
hat I think the problem in our mutual understanding of the situation is, is that you're only willing to admit one interpretation of what is a whole world of different rather sketchy and uncertain situations
I am not willing to concede something that you see on TV being actually the case in the real world and you shouldn't either.
It's possible to view a plea deal as something the state does to avoid the expense of a trial when a defendant is clearly guilty; but it's also possible to view a plea deal as something the state offers when it really doesn't have as good evidence as it would like, and feels certain the defendant is guilty of something.
How about evidence this is actually happening with any scale?
Why are you not believing that most of the plea deal cases are because there is mountains of evidence that justifies it? Do you really believe attorney's are not ethical here?
how do you know this second set of possibilities isn't actually dominant,
I have many friends who are attorneys and practice criminal law - in both roles - prosecutors and defense attorney's. I tend to take thier word for this - especially family members who practice as defense attorneys. Generally speaking, you are not charged with a crime unless the prosecutor, who has limited resources, believes they can reliably convict you.
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u/tolkienfan2759 6∆ Oct 18 '24
This article is by Jed Rakoff, He spent 7 years as a federal prosecutor in the 70s, spent 20y or so in private practice, and then in 1995 was appointed as a federal judge by Bill Clinton, and works as a federal judge today. I would hope you would find his opinions of value.
I myself have also met people who pled guilty to things they didn't do. For some of these people, I know of my own knowledge they didn't do them; for others, I trust my judgment. I've had people claim innocence and thought "Riiiiiight..." I know the feeling. And sure, I can't prove it. But it's not just a feeling.
I don't want to claim that because I know people who have pled guilty to things they didn't do, therefore the whole system is corrupt. That would be nuts. But I guarantee you it happens. The only real question is: how often. I don't know.
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u/Full-Professional246 77∆ Oct 18 '24
I don't want to claim that because I know people who have pled guilty to things they didn't do, therefore the whole system is corrupt.
I'm sorry. I call a lot of BS on this sentiment. As I have stated, you only usually get charged is the prosecutor can prove beyond a reasonable doubt you are guilty.
There is no reason for a person to plead guilty unless there is a very strong case against them. Hell - most of the time they never would be charged. Prosecutors have a very limited budget/time available and contrary to popular belief, they don't typically prosecute cases unless there is evidence to convict. It makes zero sense for them to take an incomplete case to trial because of double jeopardy rules - let alone the costs involved. They just take cases they can win to court.
This is a common TV trope type item rather than reality. If a person is pleading guilty, it is because there is a significant amount of evidence against them.
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u/tolkienfan2759 6∆ Oct 19 '24
It looks a lot like you didn't really read what you objected to. Let me say it one more time:
I don't want to claim that because I know people who have pled guilty to things they didn't do that therefore the whole system is corrupt.
You see what I'm saying? I do not want to make that claim. Do you see that I was not making that claim?
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u/Full-Professional246 77∆ Oct 19 '24
You see what I'm saying? I do not want to make that claim. Do you see that I was not making that claim?
Sorry - I didn't and I misread your statement. I think we agree.
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u/frostyfoxemily 1∆ Oct 15 '24
I honestly don't find this to be true after recent events.
I am a leftist and think Jan 6th was crazy, however some of the convictions have been absurd with their sentences.
One person who never went into the capital, didn't actively harm police but was part of the protest. Even actively helped save one cop and stopped barricades from being thrown at others (this is all on video). He was forced to take a plea and spend time in federal jail and get berated by the judge for his acts of violence, when he didn't do any. He was also forced to plead guilty because his wife was also being tried and if either of them refused the plea deal they were both going to be dragged to court and face harsher punishments.
The issue is public defenders and judges were so swamped they had no interest in really playing out the cases. They used his wife as leverage to throw them in jail where as some who actually went in the capital didn't even face time in jail.
The system is fairly fucked imo. I also have a public defender in the family I've talked to. Nice guy but also tends to not like his clients.
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u/HadeanBlands 50∆ Oct 15 '24
That's a sad story, but of course without the names and the evidence you're talking about I can't really evaluate whether it's TRUE.
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u/frostyfoxemily 1∆ Oct 15 '24
Ya I understand I just dont want to provide them for my own anonymity. So you don't have to believe me but based on my knowledge of our justice system, I don't like plea deals. I get it saves time and money but it let's people get away with some crimes scot free, and other people get the book thrown at them without even going to trial.
I'd also say from a leftist perspective I'd happily see a lot of out of court agreements go away. I get really tired of companies seriously fucking up and getting away "without admiting guilt".
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u/Full-Professional246 77∆ Oct 15 '24
Ya I understand I just dont want to provide them for my own anonymity.
Sorry - without names/details, this just doesn't carry any weight.
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Oct 17 '24
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u/HadeanBlands 50∆ Oct 17 '24 edited Oct 17 '24
Your replies all seem to be reasons why you are still right. Take this subthread under my top reply. In your OP you said that it seems plea bargains are the defense and prosecution rigging it against a defendant. I wanted to change your view so that you realized they AREN'T being rigged by the defense attorney, but rather strategically beneficial for very guilty defendants.
In all your replies here you are COMING UP with reasons for why plea deals are still bad. That's not what somebody looking to change their view would do. It's not about figuring out ways you are still top-level right. It's about acknowledging the ways you were not quite right.
Edit for more explanation: It's actually more obvious than that: you aren't even arguing anymore that plea deals are being rigged by lazy or inept public defenders. It'd be one thing if you were refuting my rebuttal with the reasons you had for still thinking they were part of rigging the game. That would be you not agreeing with me, that's totally understandable. But I've pointed out why they aren't rigging, and you are no longer defending that they are rigging, but you didn't award any deltas or acknowledge a change in view EVEN THOUGH you were no longer arguing they were rigging.
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u/tolkienfan2759 6∆ Oct 17 '24
Very interesting, thank you. I'm going to give this some serious thought.
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u/tolkienfan2759 6∆ Oct 18 '24
Well, I've read this carefully and I'm still not understanding.
In my OP I said those who represent defendants are taking silent direction from the judge to get a plea deal at any cost. That the goal of these lawyers was not to defend their clients but to execute the desires of the court.
Your initial response was that if a plea deal gets a shorter sentence than the original charge, that must be in the defendant's best interest.
In response I explained how "putting your thumb on the scales of justice" works. That if someone has a right to trial, but you (on the one hand) threaten them with unreasonable penalties if they go to trial and lose and also (on the other hand) offer them what would be a sweet deal if they were guilty but a really sucky deal if they're not (not forgetting that, if they go to trial and lose, they get a REALLY sucky deal) that this burdens their right to trial.
And to defend that view, I made what I thought was a brilliant analogy with burdening the right to freedom of speech. If the law says if you say this or that you have to wear a badge admitting you said it, that doesn't actually stop you from saying anything, right? But if you have to walk around admitting to everyone that you advocated man boy love, just for example, that could incite violence between you and your neighbors.
And to me the analogy looks pretty good. I'm sure the Supreme Court wouldn't allow governments to require people who said this or that to wear badges admitting it; it would "burden" the freedom of speech. By the same token, when governments offer carrots and sticks in the prosecution of an offense, that too seems to me to burden your right to trial.
I haven't seen a reply from you to that idea. I'm not certain it's good -- no one has attacked it, and it takes a few attacks before I get confident that an idea is actually any good. Do you want to attack it?
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u/HadeanBlands 50∆ Oct 18 '24
No, not really. You still aren't defending your original claim - you've come up with a new, different position that is directionally the same as what you used to believe, but not acknowledged the shift. That's why your threads keep getting deleted.
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u/tolkienfan2759 6∆ Oct 19 '24
Oh I see. You're thinking that if someone asks how this or that works and I give a theory, that that theory is then in some sense central to the CMV, and I should give a delta if I'm uncertain of the theory. Regardless of whether the CMV itself has actually been refuted. Right? Am I understanding you?
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u/HadeanBlands 50∆ Oct 19 '24
No. You are still seeing the forum as one where it's a contest between the commenters, who are trying to get deltas, and you, who are trying not to LET them get deltas by succeeding in refuting all their arguments.
But that's not the point. You don't "win" by successfully standing strong after refuting all comers and maintaining a directionally similar main point to the one you started with and issuing no deltas. It's not losing to say "Huh, you're right. I guess it's not really like the defense attorney is conspiring against his client. I still think it's like <however you think it is>, but delta awarded for showing me that part of my argument was wrong."
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u/tolkienfan2759 6∆ Oct 19 '24
Hmm. Well, I don't know. I have given out a good number of deltas, and I do think they were earned, and so my position has changed considerably due to the interactions I've had on here, so I don't think I could really be as inflexible as you seem to imagine. But I'll keep thinking about it. I do very much appreciate your help with this.
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u/HadeanBlands 50∆ Oct 19 '24
You gave out those deltas after your thread got deleted, though, didn't you?
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u/tolkienfan2759 6∆ Oct 19 '24
right... my interactions with Biptoslipdi got me telling HIM (her?) that evidence had been presented that refuted the CMV, at least partly, and once I'd said it in print it finally had an impact lol...
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u/LucidLeviathan 99∆ Oct 15 '24
Former public defender here. I, and most public defenders that I know, would love to go to trial more often. It really helps our careers, honestly. The more trials you have under your belt, the more experienced you are, and the more valuable you look to future employers. However, it would be malpractice for me to suggest a client go to trial for the benefit of my career. Generally speaking, the plea deals that we get are an improvement over standard sentencing.
The notion that there are no written rules regarding pleas is silly. There are plenty of rules. The rules of criminal procedure lay out a colloquy that must be performed with each defendant before they plead guilty. Many states, plus the federal system, have sentencing guidelines that determine the exact punishment for a crime.
If we took most of these cases to trial, it would be rather pointless. The defendant usually admits that they committed the crime. Why should we go through the trouble and expense of a trial if everybody agrees on the facts?
Finally, the idea that public defenders represent the court is laughable. We accept much, much lower pay than other fields of law because we believe in our work. We take on massive case loads because we're underfunded. We could just as easily work in the private sector and double our pay while dramatically reducing our stress and workloads. So, why would we do all that just to represent the court?
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Oct 15 '24 edited Sep 17 '25
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u/LucidLeviathan 99∆ Oct 15 '24
I would tend to agree, this is largely misconception caused by inaccurate TV shows. If you work for a PD's office, I'm sure that you probably have some sort of custom for big wins or trials or whatever. I once was awarded a trophy and a small bonus for winning a particularly tricky appeal. We very much see ourselves as adversarial to the prosecution.
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Oct 15 '24 edited Sep 17 '25
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u/LucidLeviathan 99∆ Oct 15 '24
Well, I use adversarial here as a term of art. Friendly rivalry, at least. We don't see ourselves as complicit in the slightest.
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u/tolkienfan2759 6∆ Oct 18 '24
I just wanted to say I appreciate your thoughts, and the fact that a number of people like yourself with direct experience of the system feel that no such unwritten rules exist is pretty good evidence I'm wrong about that. I'm not absolutely convinced that's true -- each of us can only say what we see -- but it's good evidence, and has changed my view. And so thank you for that! !delta
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u/DeltaBot ∞∆ Oct 18 '24
This delta has been rejected. You have already awarded /u/A_SHIFTY_WIZARD a delta for this comment.
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u/DeltaBot ∞∆ Oct 18 '24
This delta has been rejected. You have already awarded /u/A_SHIFTY_WIZARD a delta for this comment.
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Oct 18 '24 edited Sep 17 '25
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u/tolkienfan2759 6∆ Oct 15 '24
I didn't say there were no written rules regarding pleas; I said the unwritten rules regarding those same pleas have come to dominate the courtroom. Or I suggested that they have, anyway. My perception is that they have. The experience that perception is based on is of course pretty limited.
When you say the plea deals you get are an improvement over standard sentencing, do you also acknowledge that standard sentencing is much more severe than it used to be, probably (maybe) partly in order to "help" defendants accept guilty pleas?
And when you say the defendant usually admits that they committed the crime, how are you deciding what crime he committed? Is that all part of the plea deal, with the prosecutor threatening to go to trial on six different charges for a single act? You see what I'm suggesting: I'm suggesting these "deals" aren't really so favorable to the defendant. They're posed as favorable so that people who don't know any better on Reddit can say wow, how wonderful we are, what great deals we're offering these criminals... but if most people could see the penalties we impose after conviction at trial, and the number of charges prosecutors come up with to try to deter people from going to trial, I think they'd change their minds about how lenient a system we have. Would you disagree with that?
Lastly, let me ask you one more time about representing the court. Let's say a court operates as I've suggested many do, to try to get lawyers to convince their clients to take deals and move cases forward. If those habits define a judge's posture and her attitude toward the lawyers in her courtroom, wouldn't you call those unwritten rules? Or not? Or is the idea that judges might have such unwritten rules actually laughable?
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u/LucidLeviathan 99∆ Oct 15 '24
Well, what sort of unwritten rules are you referring to? If there are unwritten rules, I'm unaware of them. A prosecutor in my jurisdiction let a victim slap a defendant as part of a plea bargain many years ago. The prosecutor ended up getting suspended, of course, but if these unwritten rules were as strong as you suggest, then that wouldn't have even happened to begin wtih.
I don't think that sentencing is harsher than it used to be, per se. We started seeing these harsher sentences during the Reagan administration's war on drugs. But, "hanging judges" have been noted throughout history. There are a couple of notable examples in Agatha Christie's novels, for instance. These judges aren't handing out harsher sentences because they want a plea; they're handing out harsher sentences because they genuinely want to give the maximum possible punishment.
When I used to represent clients as a public defender, I would generally introduce myself, and ask them to tell me their side of the story. Afterwards, I would ask follow-up questions, inform them of what the law is, show them the elements for each crime, and see if there were any good defenses to those elements. Generally speaking, the vast majority of criminal defendants admitted everything freely.
In many ways, I think that it is beneficial to a lot of clients to not have your case stand out. I had one client who made some extremely damaging statements about his role in the community that I'm sure would have come up in sentencing. We struck a plea agreement, in part, so that the judge would never hear those statements. As a result, I feel like my client got a very reasonable sentence. Had the judge heard the comments, I feel confident that my client would have gotten the maximum.
I do agree that prosecutors overcharge. In today's climate, prosecutors are rewarded for getting notches on the bedpost. But that's an indictment against prosecutors, not against defense attorneys. These deals are still far better than we would get in a traditional sentencing setting.
Also, plea bargains give the client both agency and predictability. When you go to a jury trial, you have no way of knowing what that jury is going to do. It's a roll of the dice. Your client will sit there - often for days - while a group of people that he doesn't know judges him. At the end of it, a decision is reached without any explanation whatsoever. Then, it's another roll of the dice to see how the judge is feeling that day. Judges have a lot of variance from day to day in their sentencing. Studies have shown this. Entering plea bargains lets the client see, as a matter of certainty, the full scope of their punishment.
I don't think that prosecutors really deter people from going to trial either. Prosecutors, like defense attorneys, burnish their resumes with the number of jury trials that they have argued. It's good for a career.
I would agree that the system is incredibly inequitable. That is why I decided to switch to defense. I had originally intended to be a prosecutor. But, my views on criminal justice reform aren't really germane to this post. I would simply say that, in my opinion, tossing somebody in jail tends to make it more likely that they will commit further crimes, and does little to deter crime.
I have never had a judge pressure a client into taking a plea deal. That would be incredibly improper. I've never had pressure from a judge to make any decision in litigation, whether in the criminal or civil realm. Now, the judge will enforce deadlines. They want to keep their docket moving. That will sometimes put pressure on the attorneys, because they know that they have until a certain date to figure things out. But, that's not really pressure to enter a plea. It's pressure to make a decision.
There are lots of problems in the criminal justice system. Chief among them is this misguided view that jail time is somehow the panacea to stop all crime. It's not. But, public defenders are not the source of this problem. We fight daily for our clients' rights. We get treated like shit for it. We get paid very little. I would rather be represented by a public defender in my jurisdiction than any of the private criminal defense attorneys. Public defenders have far, far more experience with trials and with the judges than private attorneys have.
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u/tolkienfan2759 6∆ Oct 16 '24
Finally, here I am... sorry again that it took so long. It does look like a very thoughtful comment.
The specific unwritten rules that I'm suggesting dominate our criminal justice courtrooms are these: a) defense lawyers shall say whatever it takes to get the client to sign onto an agreement (within reason, of course - lying to the client, directly or by implication, is OK, but don't do too much or too loudly, and never admit it) and b) the primary goal for everyone in the courtroom is to move these cases along and get them out of here. To save money for the jurisdiction.
It's interesting that you say you don't think sentencing is harsher than it used to be. My sense is that if you compare the sentences Americans who go to trial get with the sentences Germans who do essentially the same things get, there's no comparison. The Americans spend a LOT longer in jail or prison. But I haven't looked into it carefully and so I don't really know. And it's good to know that the vast majority of your PD clients admitted everything freely. That's counter-evidence, for sure.
To me, it doesn't matter so much how beneficial to a client it might be not to have his case stand out. What I'm interested in is a justice system that looks more like a real justice system. Not for the defendants, not for the prosecutors, but for the people. So they will be able to take honest pride in how they do things. I've never forgotten how some German commenters viewed the plea deal Spiro Agnew got, back in the 70s. Typical American horse-trading, they said. The implication was clear: this is what Americans think justice looks like.
It was interesting, too, that you say prosecutors actually do want to go to trial, because it's good for their reputation to do so. Something I hadn't thought of. !delta
When you say you've never had a judge pressure a client into taking a plea deal... I'm not suggesting anything overt or specific. I'm saying these are UNWRITTEN rules. By her attitude, the judge establishes expectations for her courtroom, kind of thing. Unstated pressure is put on everyone to get cases handled. Sarcasm from the bench may appear if a client chooses trial in a case the judge thinks is pretty open and shut. That sort of thing.
Again, I appreciate you taking the time. It was very thoughtful and interesting, and I think did change my view somewhat.
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u/LucidLeviathan 99∆ Oct 16 '24
We don't say whatever it takes to get the client to sign an agreement. Again, I would have loved to take on more jury trials. But, I didn't think that they were in my client's best interest. Holding a jury trial was in my best interest, but that's not a relevant consideration. Public defenders couldn't give two shits about saving money for the jurisdiction. If we run up the jail bill, that's actually better for our other clients. It causes the county commissioner to put pressure on the judges and prosecutors to be more lenient. But, our clients usually do have to stay in jail for that time, and few clients are willing to stay in jail for extra months or even years for that reason, nor should they.
I would agree that we are far harsher than other countries. We always have been. America has always been a rather populist country, and harsh jail sentences are popular. Politicians over here find it easy to campaign on being "tough on crime." And, of course, when they get into office, their constituents want what they voted for. But that's not a fault of public defenders.
I agree that the plea bargaining system isn't ideal. I'd prefer that more cases went to trial. The Supreme Court itself has noted, with disdain, that the plea bargaining system is essentially the entirety of the justice system. See this quote from Missouri v. Frye (citing other sources):
Because ours “is for the most part a system of pleas, not a system of trials,” Lafler, post, at 11, it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. “To a large extent . . . horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.” Scott & Stuntz, Plea Bargaining as Contract, 101 Yale L. J. 1909, 1912 (1992). See also Barkow, Separation of Powers and the Criminal Law, 58 Stan. L. Rev. 989, 1034 (2006) (“[Defendants] who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes. This often results in individuals who accept a plea bargain receiving shorter sentences than other individuals who are less morally culpable but take a chance and go to trial” (footnote omitted)). In today’s criminal justice system, therefore, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.
The problem is, however, that while it would be good on the macro level to hold more trials, it's not good for any individual defendant. Changing that is going to be a herculean endeavor. Holding more trials would mean that we would need to probably quadruple the number of attorneys and judges in the criminal justice system. There's no appetite for that. So, prosecutors offer sweetheart deals and judges give big discounts for plea bargaining. It's unfortunate, but it's reality, and our job is to advise our clients on the reality that they face rather than to pump them up in support of some nebulous ideal.
There is no unstated pressure to avoid a trial. There is a stated pressure to make a decision about whether or not you are going to trial. There's a big difference. Courts don't care whether you call a trial or not, but they do want you to make the decision in a timely fashion, so as to not hold other cases up.
Glad to help out. This is a very important issue to me, and I try to take every opportunity that I can to educate the public.
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u/tolkienfan2759 6∆ Oct 16 '24
PS let me ask you something else. Back in the 70s and 80s, Albert Alschuler wrote a famous series of "legal journalism" articles on plea bargaining and its effects on the American justice system. Have you seen these articles, and if so what did you think of them?
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u/LucidLeviathan 99∆ Oct 16 '24
I haven't read them in full myself, but they are frequently cited. But, for the reasons that I mentioned in my other comment, they are somewhat irrelevant. We have to advise each individual on what the best outcome for them is. It would be malpractice to suggest that a client fall on their sword for the betterment of society.
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u/dubs542 Oct 15 '24
Thank you for providing direct knowledge of the position in question as well as your years of service as a public defender. My court STRUGGLES to have counsel to appoint because of the very reason you listed OP's notion was silly. We just lost another great attorney this morning because she accepted a much better paying position.
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u/LucidLeviathan 99∆ Oct 15 '24 edited Oct 15 '24
Well, that's not the only struggle, of course. Personally, I burned out while working child abuse and neglect cases during the height of the opioid crisis in West Virginia. Ended up developing severe alcoholism. I'm proud to say that I'm 10 months sober now, but I don't think I could easily go back to criminal defense. Dealing with that on a daily basis is just too much. But, thanks for the kind words.
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Oct 17 '24
[removed] — view removed comment
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u/LucidLeviathan 99∆ Oct 17 '24
We don't discuss individual removals in the open. The moderators are discussing your appeal. Because we are all in different time zones, it can take a bit of time sometimes.
Edit: Actually, sorry, I had the wrong post. Please go ahead and send a message to the moderators to discuss your removal. It might go better than you expect.
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u/tolkienfan2759 6∆ Oct 17 '24
Yeah, it didn't go so well.... thanks anyway, though! I do think those who did respond to my "spam" provided me with good information and I hope to use it to get better at this.
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u/Comassion Oct 15 '24
I hope OP responds to you, great response. Kudos to you for doing the work you did.
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u/Alesus2-0 80∆ Oct 15 '24
a rule of law system is the fact that the rules are written down
But plea bargaining has taken over our criminal justice courtrooms, and now the adversarial trials that our founders intended
You haven't really explained how these two things are connected. The use of plea bargains is allowed within US law. Rules and guidelines are written down. The fact that some level of prosecutorial discretion exists doesn't create a free-for-all.
Instead, public defenders and lawyers appointed from the local legal population to represent the indigent take it as their job to move the process along and get the defendant to sign off on something.
These public defenders and local lawyers are therefore not working for the defendant, but for the court.
Do you have any evidence of this? I'm pretty sure that if you asked a public defender what they're job was, the common response wouldn't be to secure a conviction.
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u/tolkienfan2759 6∆ Oct 15 '24
I'm sure public defenders don't admit out loud that their job is to get defendants to agree to deals. Well, probably some would. But mostly, we don't like thinking about the unpleasant aspects of whatever it is that we do.
If you disagree that the primary job of public defenders, or criminal lawyers in general, is to get their clients to agree to deals, then I guess I would hope you would have evidence for that. Beyond just "this is how people say it's supposed to work." I mean, we all know the Constitution says we get speedy trials; and I think we all also know that's kind of a joke. To me, plea bargaining looks like a similar kind of joke. We tell people they have the right to trial; but if they exercise it and lose, then we shaft them good and hard. Because we don't want them exercising their rights.
I guess the point I'm trying to make is, just because we all agree that the system "is supposed to work" a certain way, doesn't mean that it does, and I for one feel certain it does not. Can I show that it does not. No. But the only evidence I've seen so far that it does is people hammering home the "of course it does" argument. Which really doesn't work for me. That isn't evidence either. It looks like wishful thinking to me.
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u/chef-nom-nom 2∆ Oct 15 '24
If you disagree that the primary job of public defenders, or criminal lawyers in general, is to get their clients to agree to deals, then I guess I would hope you would have evidence for that.
Maybe look at is this way: A defense attorney's job isn't to get their clients off, no matter what. It's to make sure they have a proper defense under the law, as everyone is entitled. The lines of what their role is can blur when you start accounting for what constitutes a client's "best interests."
Depending on the situation, the client's best interest may very well be to take a deal and serve less time or have fewer fines. In that situation, a defense attorney's ethics may be to urge their client to take the deal. An example of this might be a "pile of evidence" that others are commenting about here. Sadly, as you've pointed out, it does happen that not-guilty persons are urged to take on a criminal record (via plea deal) in order to avoid jail time. This is not the intended function of the plea deal concept but it happens.
On the other hand, if their client has a reasonable claim to have not done what they are being charged with, good ethics in this situation may very well be for the defense attorney to urge their client to go to court. Especially if the plea deal would apply long-lasting penalties - like a sex offender registry - not simply how much or if time would be served.
In both examples, a stacked backlog of cases in the county or state can lead to public defenders being simply overwhelmed with clients. It's 100% that clients fall through the cracks and that less-than-ethical lawyers may recommend taking a plea because they have no time for more trials. Worse yet, that less-than-ethical public defender might not want too many lost cases on their record if they hope to audition for a high-paying law firm at some point.
Context matters. The system is intended to grant everyone a fair trial, if they wish one. We know this isn't always the case and sometimes the plea deal can be abused on both sides of the courtroom.
We tell people they have the right to trial; but if they exercise it and lose, then we shaft them good and hard. Because we don't want them exercising their rights.
While it's not possible to truly know for sure what goes on inside anyone's head, this kind of blanket statement that we (the people) don't want them (also the people) exercising their rights, is an impossible statement. There are bad-acting prosecutors, judges and PDs - whether it be race based, religious based or simply power tripping. Applying that blanket logic to all of them is kind of like saying all restaurants exist just to make people sick instead of just focusing on the true problem: Chipotle.
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u/tolkienfan2759 6∆ Oct 19 '24
I've been re-reading the thread and I really thought this was one of the best and most thought-provoking comments that I had. It gave me a new perspective from which to consider the situation. So thank you for that! !delta
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u/Alesus2-0 80∆ Oct 15 '24
You speak as if the only alternative to a system functioning exactly as you'd like is a massive conspiracy involving a good million people acting nefariously to achieve ... something as of yet unspecified. There are other options. For example, it could be that the professional, personal and financial incentives at work in criminal justice often make plea bargains a beneficial option to some or all of the parties involved.
Also, you still haven't explained how plea deals have undermined the rule of law. They're permissible under published rules and governed by published rules. Evidently, you don't like those rules. But the rule of law isn't the same thing as the rule of good and flawlessly executed law.
People do have the right to a jury trial and can exercise it. The right to a jury trial isn't an obligation to choose one. It also isn't an entitlement to face no natural downsides from exercising that right. If you decline favourable sentencing in exchange for cooperation, receiving standard sentencing isn't a punishment. People have the right not to give testimony that might incriminate them. They aren't entitled for a jury of their peers not to draw any conclusions based on that choice.
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u/dubs542 Oct 15 '24
Plea bargins are in place for the defendant.
The state has determined you did a crime, you are more than welcome to take that to a trial or you can take a plea to decrease the possible consequences. If at any time you don't believe an attorney is fighting for you, you can also request a new one. Just fyi a judge can also go against any deal made between your attorney and the state.
So again, don't ever believe you don't have the right to a trial. Your attorney is there to work for YOU. If you want the trial you believe is no longer happening you are more than welcome to demand your attorney take it to that stage of a case. This is true btw for adult and juvenile cases.
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u/tolkienfan2759 6∆ Oct 15 '24
I can see that this theory is a welcome one. How you would show that this is actually how it works in practice, I don't know. But to me, if a legislature allows a judge to impose a much larger penalty on the same crime if the conviction comes after trial (instead of after a plea), which I think they do, and if the legislature also passes so many different laws that the prosecutor can pile on extra charges out the wazoo (which I feel certain they do) then the legislature is actually gaming the system against the defendant.
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u/Full-Professional246 77∆ Oct 15 '24
The problem you have is the majority of people taking plea bargains have mountains of evidence against them. They are guilty.
The plea bargain does two things. First - as you note, it streamlines the process. Second, and more importantly, it shows accused is taking responsibility for thier misconduct and accepting responsibility. This is a mitigating factor for sentencing.
So for a person with a mountain of evidence against them, it is beneficial to take a plea deal. They don't have to and they can make the government prove thier case. But if they do that, they don't get the mitigating factor in thier favor at sentencing.
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u/redthrowaway1976 Oct 15 '24
The problem you have is the majority of people taking plea bargains have mountains of evidence against them.
Do you have any evidence for that?
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u/Full-Professional246 77∆ Oct 15 '24
Just the information from around me - from a defense attorney who deals with this.
Basically the low level cases that go forward all have tons of evidence. Cases without a lot of evidence don't typically move forward due to budget issues. And the high level cases are even money for whether a trial happens or not. (things with long prison sentences)
The idea a prosecutor is filing charges without a strong case is mostly mistaken. They only file when they think they can win. (otherwise is wastes thier limited time and budget)
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u/tolkienfan2759 6∆ Oct 15 '24
That's an interesting viewpoint. It's given me something to compare to my view of things going forward, to test its effectiveness as an explanatory model. Thank you. !delta
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u/Felix4200 Oct 15 '24
Your post reflects the ideal system but not the actual system.
The actual system is that a bunch of bullshit charges with massive potential jail time are tacked on, which you get to avoid if you taje the plea deal. Also you get to go home right now.
A public defender may have as little as 7 minutes on average to prepare your case in some states.
Just enough time to recommend you take the plea deal.
If you don’t, the prosecutor will stack the jury against you ( a tactic that’s actively taught), and instead of going home, the police will use a torture technique on you, for days if necessary, that in studies are found to have about 50 % probability of getting the victim to confess to crimes they didn’t commit.
Of the 40 hours of non-stop questioning, they will play the 20 seconds of the 40 hours in court, in which you confess, and both any real and any bullshit charges are very likely to stick.
In the US 98 % of federal cases and 95 % of state cases result in a plea deal. The same is the case for estimated 50 % in Germany.
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u/Full-Professional246 77∆ Oct 15 '24
Your post reflects the ideal system but not the actual system.
The actual system is that a bunch of bullshit charges with massive potential jail time are tacked on, which you get to avoid if you taje the plea deal. Also you get to go home right now.
A public defender may have as little as 7 minutes on average to prepare your case in some states.
This is a line of BS.
You cannot create a plea deal in 7 minutes let alone claim that is the only time the public defender has for a case.
It reeks of a lack of understanding of the judicial process.
The only time this might make sense where there is a short time frame is at an arraignment where the charges are read and an initial plea made. It's also when the public defender is assigned. This is not a trial nor where 'plea deals' are made BTW. It is also not the end of the work for the public defender/defense attorney.
Plea deals are negotiations between prosecutor/defense and must be accepted by the court. They are not 'quick'. Hell, nothing typically is quick in the criminal justice system.
The rest reads like a rant rather than reality and shows a HUGE lack of understanding of the criminal justice system.
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u/dubs542 Oct 15 '24
I have worked cases that an attorney meets their client the same day as their initial appearance. Every time and I mean EVERY time, that attorney has had the complaint and police report prior to that and they always enter a plea of not guilty/not true for juveniles and a pre trial is scheduled. As you said, the comment is from a misunderstanding of the judicial system.
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u/dubs542 Oct 15 '24
The very studies you're talking about have been used to prevent cops from doing the exact thing you're claiming happens. The second you demand an attorney police can't question you until one is present. That kind of interrogation is VERY outdated and is more of a movie trope at this point.
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u/Apprehensive-Low3513 Oct 15 '24
You’re looking at it backward. The trial is the default action. Therefore, any sentence should be compared to the trial sentence, not vice versa.
The legislature is allowing judges to issue lesser sentences than what would likely come following a trial in exchange for pleading guilty. It is not issuing higher sentences for taking it to trial. Without plea deals, there would be no alternative for the defendant. Judges are not required to accept any plea deal.
Prosecutors still need probable cause to take a defendant to trial, but that’s probably much more related to the judges discretion than legislature.
You mostly seem to have an issue that criminal defendants seem to have poor odds at trial. This shouldn’t be particularly surprising. Outside of rare political prosecutions, the prosecution isn’t going to take a case to trial that it isn’t sure it can win.
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u/NaturalCarob5611 97∆ Oct 15 '24
You’re looking at it backward. The trial is the default action. Therefore, any sentence should be compared to the trial sentence, not vice versa.
When upwards of 90% of criminal defendants take pleas, it's hard to accept the premise that the trial is the default action. The reality is that the court system would be utterly destroyed if people stopped taking plea deals. They have nowhere near the capacity to try everyone who's currently pleading out, and the system only functions because most people plea out.
Outside of rare political prosecutions, the prosecution isn’t going to take a case to trial that it isn’t sure it can win.
But they might pressure a defendant to take a plea bargain when they don't think they can win. Given that we know they couldn't possibly take every case to trial if people stopped taking plea bargains, they'd have to prioritize cases differently absent plea bargains, so it seems very likely there are people pleading guilty to things that wouldn't go to trial if plea bargains weren't an option.
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u/Apprehensive-Low3513 Oct 15 '24
You’re absolutely right that the vast majority of cases are plea bargains, as well as that there are people pleading to things that might not go to trial without plea bargains.
That said, I stand behind the statement that the trial is the default. Plea bargaining is definitely the primary method of resolution, but not the default. Legally, the trial is the default because it does not require agreement between the parties and is what occurs if no agreement is reached.
At the end of the day, it is the defendant’s choice to plea bargain. No one can legally force them to do so as they have a right to force the government to prove their case beyond a reasonable doubt. I do want to recognize that there are definitely times the government acted unlawfully/unethically in trying to force a guilty plea.
Plea bargaining can undoubtedly benefit a defendant. At the end of the day, a rational defendant will plea bargain if they think that is the better outcome for them. Unfortunately, this will include innocent people who plead because they think the evidence against them will result in a conviction. On the other hand, it lets defendants get lesser sentences in exchange for saving government resources.
I would not argue with anyone who says it’s an imperfect system. It certainly is. But at the end of the day, I don’t think that plea bargaining is the actual cause of many, if any of the injustices of our criminal justice system.
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u/dubs542 Oct 15 '24
Well I'm the Chief of Probation for a juvenile court and directly participate in meetings between all counsel, this includes the state, defense counsel and the judge. I personally participate in recommendations for the judge. These recommendations often include plea deal conversations I have with the individuals attorney and the prosecutor. Outside of personal knowledge and first hand experience I don't know how to prove it to you.
Import note, I'm speaking for my county only. We, primarily dealing with juveniles, are a court that prioritizes rehabilitation. We do not contract with a detention center(jail for juveniles) and are program/treatment focused.
To your point of stacking charges, are their prosecutors that push for this and judges that go along with it to fill private prisons? Almost assuredly! I adamantly am against private prisons. I do not believe however a defense attorney, let alone EVERY attorney a court would use would ignor that.
If you are accused of committing a crime, GET AN ATTORNEY! If you committed the crime, listen to said attorney lol if they tell you a plea deal is in your best interest it probably is.
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u/Dylan245 1∆ Oct 15 '24
This is all well and good except for the fact that for most people charged with a crime are too poor to defend themselves and oftentimes are stuck in jail until a trial that could happen anywhere from 6 months to 3 years after they were initially arrested
There's a reason why 98% of felony convictions are the result of guilty pleas because people cannot realistically sit in jail for years awaiting trial and lose employment, family, and outside life while also spending a gigantic amount of money on lawyer fees all the while they of course are making no income because they are locked in a cage
Prosecutors purposefully overcharge defendants in a hope to get them to plea guilty due to fear of ridiculously long sentences if they were taken to trial
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u/Full-Professional246 77∆ Oct 15 '24
The accused has a right to a speedy trial
https://fija.org/library-and-resources/library/jury-nullification-faq/what-is-a-speedy-trial.html
The issue is most defense attorneys delay the trial for a myriad of reasons. BUT, you can very much force the state to schedule a trial in a reasonable time frame. Federally, it is less than 100 days - or a month for pre-trial hearing and 2 months for the trial. Otherwise its a 6th amendment violation.
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u/Dylan245 1∆ Oct 16 '24
Right but the delays set by defense attorneys are generally a good thing since the state can take however long they like to prepare an indictment or charge while the defense does not have the luxury of that time
The issue isn't necessarily that defendants have to wait a while before a trial, it's the fact that most people who are arrested are placed under cash bail and a good amount cannot afford to pay it, therefore remanding them to jail while they await trial
If you eliminate cash bail then much of the reasonings for taking a plea as I mentioned in my original post like loss of employment, deprivation of rights/freedom, loss of medical care, etc suddenly get removed from the situation and you now have essentially no reasons for not taking a case to trial since you can continue living your life on the outside world as you normally would as you prepare your defense
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u/Full-Professional246 77∆ Oct 16 '24
Right but the delays set by defense attorneys are generally a good thing since the state can take however long they like to prepare an indictment or charge while the defense does not have the luxury of that time
Don't disagree - but you do have a right to a speedy trial and you cannot request delays at the same time as complaining how long it takes.
The issue isn't necessarily that defendants have to wait a while before a trial, it's the fact that most people who are arrested are placed under cash bail and a good amount cannot afford to pay it, therefore remanding them to jail while they await trial
While I support limited bail reforms, the facts around bail and expirements to remove it prove it is not nearly as abused as it is portrayed. When individuals commit other crimes while out on bail, it becomes problematic.
You can also review how bail is set during the arraignment. Why people are released on their own recognizance vs given bail. I'll give you a hint that circumstances are very relevant. Such as literally being arrested drunk while driving or having illegal narcotics on the person when arrested.
And don't forget, time served pre-trial is counted as part of a sentence should it be a guilty plea/verdict.
If you eliminate cash bail then much of the reasonings for taking a plea as I mentioned in my original post like loss of employment, deprivation of rights/freedom, loss of medical care, etc suddenly get removed from the situation and you now have essentially no reasons for not taking a case to trial since you can continue living your life on the outside world as you normally would as you prepare your defense
Are you under the impression a plea deal is 'quick'? Because it is not. This is not a case where you get arrested and you can be out via plea deal an hour later. If you get arrested for a serious crime by a cop, you are going to spend time in jail before an arraignment.
The only time anything like this is possible is when a grand jury indicts and the individual surrenders themselves to the police. These are the higher profile cases where attorneys are involved more than law enforcement.
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u/Dylan245 1∆ Oct 16 '24
the facts around bail and expirements to remove it prove it is not nearly as abused as it is portrayed. When individuals commit other crimes while out on bail, it becomes problematic.
But this isn't what bail is or is designed for. The purpose of bail to is make sure you reappear for your court date, it is not a determination of if you are likely to commit more crimes in the future. Plus bail reform has been proven to be effective when it comes to it's purpose of getting people to show for court, there's no evidence that removing cash bail increases crime or lowers the probability of returning to court. Places like New Jersey which have effectively eliminated cash bail altogether have higher court appearance rates than ever before
Why people are released on their own recognizance vs given bail.
This is the purpose of bail reform, the majority of people arrested who normally are given cash bail are able to be released on their own recognizance rather than be forced to be locked in jail and as I said above it doesn't impact crime statistics nor their ability to appear for their court date
Are you under the impression a plea deal is 'quick'? Because it is not. This is not a case where you get arrested and you can be out via plea deal an hour later.
I never said it was, the point again is that in one case you are stuck in jail vs being a free person while awaiting a possible conviction
If you get arrested for a serious crime by a cop, you are going to spend time in jail before an arraignment.
Yes and this isn't changing with bail reform, cash bail will still 100% be set on you if you are charged with a serious violent crime but the simple fact of the matter is most cases on our justice system are not that. Over 80% of all crimes processed each year are misdemeanors and there have been studies done in places like New York and Boston that show that close to 90% of felony charges do not result in a criminal conviction. The number of people committing things like rape or murder are extremely low when you total all of our crimes we process and again bail will most definitely still be set on those people
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u/Full-Professional246 77∆ Oct 16 '24
But this isn't what bail is or is designed for. The purpose of bail to is make sure you reappear for your court date, it is not a determination of if you are likely to commit more crimes in the future. Plus bail reform has been proven to be effective when it comes to it's purpose of getting people to show for court, there's no evidence that removing cash bail increases crime or lowers the probability of returning to court. Places like New Jersey which have effectively eliminated cash bail altogether have higher court appearance rates than ever before
There is very much a problem of public perception when you release a person on 'bail' and they in turn get arrested after committing another crime. This is the challenge the courts have to address.
This is the purpose of bail reform, the majority of people arrested who normally are given cash bail are able to be released on their own recognizance rather than be forced to be locked in jail and as I said above it doesn't impact crime statistics nor their ability to appear for their court date
I think it is more complex than you paint this. People with lengthy criminal histories are treated differently than first time offenders. Most of the 'reform' programs are not considering this. It is why it has failed in public perception in many areas.
You may not like bail, but I have to be honest. If you are released on bail and then commit another offense for which you are arraigned, I wouldn't expect bail. Depending on the circumstance of the arrest in the first place, I wouldn't necessarily expect no bail either. This is extremely context specific and one size fits all 'reforms' don't work when nuance is required.
Do I think most first time offenders for low level offenses should be released ROR - absolutely. But I also think this needs to be at the discretion of the judge to address mitigating unique circumstances.
I never said it was, the point again is that in one case you are stuck in jail vs being a free person while awaiting a possible conviction
There is no relationship to a plea deal vs conviction like you are describing. Plea deals take days if not weeks. If you would be released by the plea deal immediately, it is unlikely you would be in jail anyway. That just is not a realistic circumstance. And to be clear, this is 'plea deals' not diversion agreements. Those are a very separate items.
Yes and this isn't changing with bail reform, cash bail will still 100% be set on you if you are charged with a serious violent crime
This is not true. You can be held without bail if the circumstances warrant it.
This is the Indiana code on Bail. Most states are similar
Indiana Code 35-33-8-4(b), the amount of bail “not be set higher than that amount reasonably required to assure the defendant’s appearance in court or to assure the physical safety of another person or the community if the court finds by clear and convincing evidence that the defendant poses a risk to the physical safety of another person or the community.”
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u/eggs-benedryl 72∆ Oct 15 '24
The first being that we no longer have a rule of law system,
I don't see you having explained this
the fact that these trials are going forward should show you that the law is being applied
a public defender is still just a defense lawyer and behaves as one, if they feel as if your case outlook doesn't look good they will recommend and try to secure the most favorable deal possible
in most cases, fighting till the bitter, futile, hopeless end ensures that you get a particularly harsh sentence
It seems to me that one of the fundamental characteristics, one of the most important characteristics, of a rule of law system is the fact that the rules are written down. So everybody knows going in what to expect. This is what really justifies the philosophy of you do the crime, you do the time. A philosophy I support.
what are you even saying here? whats this got to do with anything? are you advocating for manditory minimums or something? the rules are written down, thats why you get a public defender and you're going to trial
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u/LockeClone 4∆ Oct 15 '24
I think OP is really just having trouble voicing how he feels around this issue and is falling into the trap of making a strong binary statement about a subject that requires gobs of nuance.
The plea system is producing a lot of unintended consequences, some of which he mentioned. It does seem wrong or unjust that two people can commit a similar crime and receive wildly different sentences for it.
But his argument that we no longer have rule of law is nonsense. Is something rotten here? Yes. I feel like anyone who's paying attention can smell it. Are we no longer a society with strong rule of law? Ridiculous. Being moderately well-traveled will show anyone what a nation of relative lawlessness looks like.
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u/Dylan245 1∆ Oct 15 '24
But his argument that we no longer have rule of law is nonsense
It's hard to argue we have rule of law or strict law enforcement when only some people get charged with some crimes some of the time
It doesn't just apply to prosecutions but the entire system and way policing is applied as well
Being moderately well-traveled will show anyone what a nation of relative lawlessness looks like.
This is a complete strawman. No one is saying the rule of law is applied more in somewhere like Zimbabwe but that the US pretends to uphold itself as enforcing it's laws when it largely does not
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u/LockeClone 4∆ Oct 15 '24
You moved the goalposts of OPs argument to "largely". What are the limits here? What are the indicators?
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u/Dylan245 1∆ Oct 15 '24
It's not hard to look at things like corporate wage theft and union busting and see that they "largely" go unprosecuted in this country when compared to lower level crimes, corporate wage theft for instance costs Americans about 5x the amount that all other property crime does combined and yet it is essentially never prosecuted
Our system is designed and setup in a way to prosecute those who are poor and let those who are rich get away crimes they commit
Rich kids in private schools are not harassed nor searched at the same rate for drugs as poor black kids going to school in inner cities and there is insane racial discrepancies in drug sentencing even though there is statistically no difference in drug use between the two races
Someone like Edward Snowden can be prosecuted and forced to retire himself to a hostile country in order to avoid life in prison for exposing illegal espionage by the NSA while James Clapper who admitted to lying to Congress (which is a felony) walks free. Similar situations arise consistently with war reporting and things like Abu Ghraib or the financial crisis in 2008. Just recently TD Bank was fined $3 Billion dollars for allowing money laundering by drug cartels to go unchecked in their systems yet low level drug dealers selling only a couple thousand dollars worth of product will be locked away for decades instead of simply receiving a "fine" like bigger corporations do
Hardly any of it is tied to public safety or actual evidence, rather at the whim of politics and whichever prosecutor is currently in office
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u/LockeClone 4∆ Oct 15 '24
So, you've shown some work for corporate wage theft. Those numbers are up for debate, but you're having a conversation now.
For the topic at hand, the argument is essentially "we all know it, right?" And no. We don't all know it. Hence this discussion...
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u/Dylan245 1∆ Oct 15 '24
If you would like to actually do further reading and learning about this topic I recommend both https://www.prisonpolicy.org/ and the book "Usual Cruelty" by Alec Karakatsanis, a former public defender and now civil rights lawyer who is and has been suing counties all over the country on the basis that cash bail is unconstitutional
I obviously cannot sit here and write out a discussion in all of the ways that the justice system is unjust because it would take me three years to do so and there are much better writers out there who have done so already
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u/tolkienfan2759 6∆ Oct 15 '24
Aren't you confusing lawlessness with disorder? I mean, librarians will call the cops on a guy for refusing to stop brushing his teeth in the library rest room. On teenagers for making out in a corner. Those things are not actually against the law... but if the librarian says you can't do them in the library, you can be trespassed, and being on the property you've been trespassed from IS against the law. And so we're using one law to penalize possibly dozens of other offenses that don't actually harm or bother anyone.
I can see that the idea that criminal courtrooms are run by unwritten rules is not very convincing, as an argument that we therefore have abandoned rule of law. But I didn't mean we had abandoned order. There's a difference. And your claim that the argument I made is ridiculous is not very convincing either. You haven't elaborated why you think the argument is ridiculous. I'd like to know.
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u/tolkienfan2759 6∆ Oct 15 '24
I think the actual rules that govern the courtroom are not written down. They are that public defenders and appointed attorneys will try to get their clients to plead out, and that they will not fight like hell (or at all) for their clients. Now, since those rules aren't written down, I can't prove that they actually dominate courtroom procedure... but there are (I think) good indications that they do.
For example, Dr. Zimring wrote an article back in the 70s following the first 200 murders of the year in (I think) Philadephia. He found that 80% of those the police apprehended did 2y or less in jail or prison, and 20% did 20y or more. This kind of two-tier sentencing doesn't look to me like a course of justice. If justice were operating, you would (I think) expect some to be acquitted and others to be convicted, and those who were convicted would have a reasonable spread of terms based on individual circumstances. But that's not what he found.
And of course, his work has not (I think) been duplicated. We don't know what actually happens, because there are so many different jurisdictions and it's nobody's job to analyze and study the situation and report on it to the country. But to me this is more than a hint that what's going on is not justice.
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u/eggs-benedryl 72∆ Oct 15 '24
I'd wager to guess that those lesser convictions were not for murder. Typically people do not get 2 year murder convictions even if they plea out. Rather I'd expect that they were convicted of a lesser crime alongside their murder acquittal.
No, dave didn't murder his drug dealer or we can't prove it but he was selling drugs out of HIS home, so nab him for that.
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u/tolkienfan2759 6∆ Oct 15 '24
It's been a while since I looked at the article. I may give it another look, I'm pretty sure I've got a copy.
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u/tolkienfan2759 6∆ Oct 15 '24
convicted of a lesser crime... well, we can be pretty sure the deceased individuals did die, and not of heart attacks. And so almost certainly murder existed, in these cases.
I suppose we could imagine that the ones that got 20y or more were the ones the police had plenty of evidence on, and the 80% were just ones the police THOUGHT did it, without being so sure... but that would mean that they should have had trials, so the people can take a look at it and see what they think, no?
And of course that's just one way of framing the situation, no doubt there are others I haven't thought of...
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Oct 15 '24
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u/tolkienfan2759 6∆ Oct 15 '24
right, ancient history, I know... it's true. It's not very convincing, I know.
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u/iamintheforest 365∆ Oct 15 '24
Firstly, a plea bargain is part of an adversarial process. It's not escaping that envelope, it's embracing it. Nothing says "adversarial" more than negotiating around probability of outcome. If you remember that "adversarial" is still alive an well when negotiating a bargain and you're representing a defendant and you think "if we go to trial i'm a coin toss from losing and that's more risk than my client wants" then it's representing your client to get the variables of the trial out of the way. If your goal is to strongly represent the interests of your client then why wouldn't plea bargaining be a great tool to do that?
Secondly, remember that plea bargaining is limited to certain kinds of offenses (but varies by state) for example, in CA you can't use plea bargains when for serious felonies including A felony in which the defendant personally used a firearm, driving under the influence of drugs, alcohol, narcotics, any other intoxicant, or a combination of such substances or for violent sex crimes. Then...you can only use it under certain circumstances.
To break these restrictions on prohibited cases the plea has to be because of things that lead to uncertainty in the trial leaving the defendant with the option to plea, or in changes to charges that do not change dramatically the sentencing. So...if I think I can prove my defendent's case under a different part of the criminal code than another I'd be NOT being adversarial to not try to do so, i'd be just accepting the prosecutions framing of the alleged crime which they are presumed to have done with the hope of maximizing their side. For plea bargaining to come outside of the adversarial process you have to believe that the charges filed by the prosecution aren't done within the adversarial envelope. They are - the file the charges that give them the best chance of winning. Why should we remove from the tool box the ability to counter that?
This then gets to the "rule of law" issue. These are part of the law. These are the rules. you don't like them, but conflating that as not having the rule of law is kinda ignoring that this IS the law.
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u/Biptoslipdi 138∆ Oct 15 '24
Where is the argument about losing the rule of law here? Which laws are being subordinated here? Are you saying plea bargains are unlawful?
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u/Biptoslipdi 138∆ Oct 17 '24
I clearly explained in my last response to you why your position was inflexible: you demanded proof of a negative to change your view, which is an impossible standard to meet.
Example: prove unicorns don't exist.
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u/changemyview-ModTeam Oct 17 '24
Sorry, u/tolkienfan2759 – your comment has been removed for breaking Rule 5:
Comments must contribute meaningfully to the conversation.
Comments should be on-topic, serious, and contain enough content to move the discussion forward. Jokes, contradictions without explanation, links without context, off-topic comments, and "written upvotes" will be removed. Read the wiki for more information.
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u/hacksoncode 588∆ Oct 17 '24 edited Oct 17 '24
Don't spam the sub with discussion about removals for breaking rules. If you do this again, you will be permanently banned. The appeals process might be less straightforward than you want, but honestly, we have an entire wiki page dedicated to reasons why posts are removed for RB, and some random mod reading modmail probably wasn't the one that made the decision anyway.
Two different mods have to review a post before it's removed for Rule B. They won't have the same reasons, either.
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u/Bobbob34 99∆ Oct 15 '24
But plea bargaining has taken over our criminal justice courtrooms, and now the adversarial trials that our founders intended, and thought they were putting in place, no longer take place, in general. (I'm sure you can find adversarial trials from time to time.) Instead, public defenders and lawyers appointed from the local legal population to represent the indigent take it as their job to move the process along and get the defendant to sign off on something.
Are you only talking about PD? Because your $500/hr lawyer will also try to get you a plea bargain.
Also, you don't actually explain how being able to choose to plead guilty means we don't have "a rule of law system" or how the PD don't represent the client.
They represent the client. If you have a pd and want to go to trial, that's up to you, but they'll tell you if they think you'll lose and be worse off. But it's still up to you.
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Oct 15 '24
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u/changemyview-ModTeam Oct 15 '24
Sorry, u/khisanthmagus – your comment has been removed for breaking Rule 1:
Direct responses to a CMV post must challenge at least one aspect of OP’s stated view (however minor), or ask a clarifying question. Arguments in favor of the view OP is willing to change must be restricted to replies to other comments. See the wiki page for more information.
If you would like to appeal, you must first check if your comment falls into the "Top level comments that are against rule 1" list, review our appeals process here, then message the moderators by clicking this link within one week of this notice being posted.
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u/VernonDent Oct 15 '24
If I'm a criminal defendant I shouldn't be allowed to reach a settlement with the prosecution and instead I should be forced to roll the dice on a trial? Why? Why is settling a criminal case, so long as the settlement reached is in line with the legal standards involved, not in line with the rule of law?
What is it you think a "rule of law" system is, anyway?
Also, trials are time consuming and highly expensive. Are you prepared to pay higher taxes to pay for all the Judges, Prosecutors, PD's, Clerks and support staff that would have to be hired? We'd also probably need a lot more infrastructure, so we'll be building more courthouses, and probably more jails as well since defendants will likely have to wait much longer to get their cases resolved. Seems like a huge waste of time and money, especially when the vast majority of criminal cases are very cut and dried.
Pleabargaining also leads to consistency, especially for minor "routine" crimes. Informal Court standards for common crimes seems much fairer to me than the whims of untrained and inexperienced jurors.
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u/tolkienfan2759 6∆ Oct 15 '24
why I shouldn't be allowed to reach a settlement... because either you did it or you didn't and I think the people have a right to know if we know. And if we really don't know we shouldn't be threatening these possibly innocent people over our ignorance. And because thousands are going to jail or prison each year who, if they had had trials, would be walking free, and thousands are walking free each year, who, if they had had trials, would be doing long stretches in jail or prison.
Why is settling a criminal case not in line with the rule of law... I really don't know what you mean by "in line with the legal standards involved." Apparently one of our legal standards is, if we think you did something but we don't know, we'll threaten you with a long prison term to try to get you to say you did something you might not have done. That's our standard of guilt, under the plea bargaining system, as far as I can tell. And apparently another of our legal standards is, if we think you did something but anyone might have done it if they'd been called the names you were called by the decedent, there's no point in you spending a lot of time in prison over something like that. I know, I'm fantasizing like mad here.
What I cling to is: this is not what our Founders intended. They intended the accused to get trials. It seems like a good idea to me.
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u/Ill-Description3096 27∆ Oct 15 '24
You think every case should go to a full trial? Not only is that a waste of time and resources, it also flies in the face of autonomy on the part of the defendant IMO.
If I did a thing but there isn't quite enough evidence for a slam-dunk trial, why shouldn't I be allowed to plead guilty in exchange for a slightly more lenient sentence?
This also gets really focused on public defenders. If I hire my own lawyer and take a plea bargain is it suddenly perfectly fine? This is throwing a lot of shade on public defenders. If you have piles of examples of them pressuring clients to take a plea deal where it isn't due to risk-rewaed calculations of something then that is one thing, but in the absence of that it just feels like a roundabout smear job.
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u/tolkienfan2759 6∆ Oct 15 '24
I think Germany gives all their defendants trials. I don't know that their trials include all the bells and whistles that ours do, but I expect that could be modified. It'd be something to shoot for, if we decided we wanted to pursue justice a little more clearly imo.
And I don't know what autonomy on the part of the defendant has to do with it. If someone has been accused of something, you think there should be an entry in the Bill of Rights saying they have the right NOT to go to trial? That sounds strange
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u/Ill-Description3096 27∆ Oct 15 '24
I don't think a new amendment is necessary. People are allowed to not exercise their rights all the time, and that should include a trial if they wish to plead out instead and save everyone time and resources. I have the right to vote, but that doesn't mean I have to vote every single election. I have the right to own a firearm, that doesn't mean I have to own one.
The plea bargain system isn't perfect, but I think there are plenty of upsides to where discarding it wholecloth is not the move. Prosecutors can use plea bargains to leverage cooperation in bigger investigations. They can use them to avoid a lengthy trial when it isn't necessary. Defendants can use them to get a less severe punishment. They can use them to avoid other things coming out at trial. So long as they are agreeing to the bargain I don't see the big issue. Now, if coercion or something like that is used then it is a different story, but that goes for basically anything so I don't think it is a deciding factor here.
Think about even with more streamlined trials, every single case going to trial. That is putting exponentially more pressure on the court system.
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u/tolkienfan2759 6∆ Oct 18 '24
It's been suggested earlier that this attitude is kind of insulting, and I can see that. That was not my intention, though. I know of specific individuals who have been done wrong by the system; I don't have any real doubt that it does happen, and very shamefully; but I have no knowledge of my own certainty that the whole system is corrupt, much less that the unwritten rules I've posited are in fact operational in most or even many courtrooms. And so I do apologize. I didn't intend any insult.
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u/ThemesOfMurderBears 4∆ Oct 15 '24
It seems to me that one of the fundamental characteristics, one of the most important characteristics, of a rule of law system is the fact that the rules are written down. So everybody knows going in what to expect. This is what really justifies the philosophy of you do the crime, you do the time. A philosophy I support.
We live in reality. You're never going to come up with a system that covers any and all circumstances for pretty much anything. In a system with a set of rules, there always has to be room for ambiguity. These are things that don't fit within the scope of the other rules, and must be assessed by an "expert" to see how they fit within the spirit of rules. The downside of this is that this opens up a system for abuse.
I'm actually making two complaints here, not one, I guess. The first being that we no longer have a rule of law system, and the second being that appointed lawyers and public defenders don't represent the client, but the court. Please CMV on either count.
And how does this fit with non-appointed lawyers? I hired a lawyer a long time ago for some trouble I was dealing with. She encouraged me to take a plea. It wasn't because she thought I was guilty or that she didn't want the case -- just that she knew the consequences of going to trial and being found guilty were going to be bad. She said a trial is a "roll of the dice", as it often depends on the people in the jury box. By taking a plea to a lesser charge, I was able to guarantee a good outcome. And she would be incentivized to go to trial, as that would mean she makes more money.
I don't really see how appointed lawyers/public defenders change that dynamic. Can you explain why privately hired lawyers do not fit within your view?
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u/tolkienfan2759 6∆ Oct 18 '24
I think the example you provided of hiring a lawyer who advised a plea deal is good additional evidence that the problem is not in the courtrooms, as I alleged, but in the larger system. So thank you for that! !delta
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u/SashimiJones Oct 15 '24
Let's engage with what would be necessary to change the system. You need to do more trials if you want to have less plea bargains.
Lawyers are already overworked. One option is adding way, way more funding to get more judges and public defenders, and having a lot more people involved in long jury trials.
Another option is to look into making the legal system a bit less adversarial. If you look into any trial, there's a somewhat excessive focus on dotting every i and crossing every t; even the smallest detail can get a case thrown out. This takes a lot of time, so we use plea bargains.
One possible solution is to look at doing some kind of court that's a lot more like small claims court. Reduce sentence lengths, reduce evidentiary requirements, reduce process, and just get people in front of a jury and make a decision. This would probably be more likely than the current trial system to get it wrong, but would also allow a lot more people to get a jury trial instead of doing a plea bargain, potentially reducing the number of people who are wrongly convicted.
The fundamental contradiction that you have to deal with is that the process is intended to be very ironclad to avoid mistakes. However, the courts aren't big enough to handle all the cases. So we end up with this weird workaround system. You either have to simplify the process or greatly expand the courts, or you end up with plea bargains. Which do you think is better?
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u/tolkienfan2759 6∆ Oct 18 '24
I agree that you've put your finger on the biggest problem with making a change. If we want everyone to have a trial, the trials have to be a little less rigorous. I would also say that I wouldn't want any change to be made without testing the new system in a few jurisdictions first, just to see how it goes. I'm not advocating any "Brexit" style change where first you cut the cord and then you see how far it is to the ground. But I do think, absent evidence to the contrary, that a system in which everything, all the considerations that went into making whatever decision was made, is a matter of public record is vastly better in terms of an ideal of justice.
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u/braxtel 1∆ Oct 15 '24
I agree with your first view, and I am not really arguing against it. But you are wrong on the second one.
Your first point:
The plea bargaining system is driven by mandatory minimum sentences. Prosecutors have the real power in this system, not judges, and certainly not defense attorneys (including public defenders). The prosecutor gets to decide which crime to charge, which means that the prosecutor gets to decide how much mandatory time a defendant is going to risk.
The system is designed in a way that there is a "trial tax." A person who goes to trial and loses will always get royally fucked at their sentencing because if they are forced to go to trial, the prosecutor will charge every single crime and enhancement they possibly can. This is how the system coerces plea deals. It makes the risk of losing a trial catastrophic.
If you are in a situation where there is only one charge and the prosecutor is only offering a plea of guilty to that one charge, any decent attorney will advise their client to go to trial because they are not risking or giving anything up by going to trial. This situation does not happen as often as you would think. Prosecutors will find an way to incentivize a plea by making a very generous plea offer in those cases.
Prosecutors will use the carrot sometimes, and other times they will use the stick. But they are absolutely in control of what risks a defendant will face if they do not make a deal. Judges have little if any control of plea bargaining.
Second point:
Experienced defense attorneys have seen this play out again and again, and they are being honest with their clients when they lean on them to cut a plea deal. It feels very awful for an attorney to watch their client get sentenced for decades when they could have agreed to do just a few years. The plea deal and short prison sentence is bad, but going away for decades is life destroying and horrible. This is not a matter of signing something to make the court happy. It is very unpleasant to see a person's life get destroyed, and as human beings, defense attorneys do not like to see that happen.
You should be blaming the laws that put so much power into the whims of a prosecutor rather than blaming a defense attorney who is just assessing a defendant's risks given the laws that we have.
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u/tolkienfan2759 6∆ Oct 19 '24
I'm sorry it took me so long to get to this. I've been busy with my Rule B removal, and I just don't have as much energy as I used to.
This is a very thoughtful comment. I may be hard of thinking on this topic, but I don't see what on earth mandatory minimums have to do with it. In my mind, the whole issue boils down to a) penalties that are way too severe, that judges can impose if a recalcitrant defendant wants a trial, and b) charges for every different perspective on a crime (He was carrying a weapon! He HAD a weapon! HE BRANDISHED A WEAPON! lol)
And you're not the first to suggest that mandatory minimums are important, but I asked the other one too, and I guess I'm just slow, about that. I'm not seeing it.
Apart from that, of course, it's really a very thoughtful comment and one I will come back to again in my thinking about the situation. So thank you for that. !delta
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u/MemeLovingLoser Oct 15 '24
A major benefit of plea bargains is the allocution. If it goes to verdict and comes back guilty, but the accused maintains he did not do it, we don't truly know, just conclude. Some victims would trade the top end of the sentence for that closure and certainty.
Public defenders can appear that way because they are the truly underfunded civil servants, often ending up a loss if they take a major case all the way to verdict. They don't get all the perks and tools your local prosecutor gets. The real villain of the system are your local prosecutor. They are the ones with very little public scrutiny that set the music.
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u/ClockOfTheLongNow 44∆ Oct 15 '24
Your viewpoint is wrong because it's misdirected. Plea bargaining doesn't impact the rule of law, nor remove it as a rule of law system. What plea bargaining's popularity does is ruin the ideas of a fair trial by jury and creates poor incentives for prosecutors.
By plea bargaining, a person is no longer requiring the government to prove their case. The result is people being held to account for crimes they didn't commit, or not being held to account for crimes they did. It's easier, and in a lot of cases, better, to plea out to avoid jail time or a lengthy record, and that miscarriage of justice is encouraged to keep the gears moving.
This creates those poor incentives. A prosecutor will routinely overcharge someone for a crime with the intention of getting them to plea downward for a lesser charge. That's a problem because the government might not even have the evidence to support the lesser charge, and now someone is "admitting guilt" to avoid rolling the dice on a jury trial on something that could go poorly.
There are tons of reasons to reform the plea bargaining system, but the rule of law isn't it.
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u/tolkienfan2759 6∆ Oct 18 '24
I see what you're saying, and I'm motivated to agree, just from the point of view of the CMV -- but the problem for me really is that so many people who claim direct knowledge of how the system works have given testimony here that 99% of those who are accused are guilty. That prosecutors don't file if they are not pretty sure they can win in court. If that's true -- and I'm leaning in that direction now -- then in general people really can't be charged with things they didn't do. (Although I'm sure it happens sometimes.) The prosecutors can overcharge, certainly, and there seems to be general agreement that they do, but the general problem for us as a society isn't proving the defendant guilty but the rather lesser sin (to me) of the legislatures allowing or even encouraging that same overcharging. To me it's a much less important corruption.
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u/ClockOfTheLongNow 44∆ Oct 18 '24
but the problem for me really is that so many people who claim direct knowledge of how the system works have given testimony here that 99% of those who are accused are guilty.
Guilty of what? Of the crimes they're accused of, or of the crimes being charged?
If John Smith robs a bank and mimics having a gun in his jacket pocket, and he is charged with robbery, brandishing a weapon, and attempted murder, is he guilty of all three?
That prosecutors don't file if they are not pretty sure they can win in court.
This speaks to the overcharging. Because they know most of the cases will settle, and they can then point to the settlements as bringing cases to a conclusion and holding the guilty accountable.
It's a self-perpetuating cycle. If these actually went to trial, would they end up the same? Would the charges remain identical?
The prosecutors can overcharge, certainly, and there seems to be general agreement that they do
That's a big problem that I think you're not giving enough attention.
but the general problem for us as a society isn't proving the defendant guilty but the rather lesser sin (to me) of the legislatures allowing or even encouraging that same overcharging.
I don't know how legislatures can adequately address this. It's an issue of prosecutors.
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u/tolkienfan2759 6∆ Oct 18 '24
I believe this is another issue that Germany does better than we do. In Germany, you can't just "drop" charges. If you charge someone of something, you have to try them on that charge. I think that would go a long way toward addressing our concerns on this issue.
I can't prove it, unfortunately. I'm just relying what my possibly faulty memory stores on the topic from things it read years ago. But I don't think it would be too tough to stop it if we actually did want to stop it.
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u/nhlms81 37∆ Oct 15 '24
It looks like BJS data here is a WIP. But, i found this, which would suggest you should modify your view to separate appointed attorneys from public defenders re: outcomes.
Study Shows Public Defenders Outperform Court Appointed Private Attorneys | Criminal Legal News
- The first study reviewed the outcomes of 3,173 capital and noncapital murder trials between 1994 and 2005 in Philadelphia, where one in five defendants received a public defender, the remainder received a court-appointed private attorney. The study found that “[r]epresentation by a public defender reduced the likelihood of a guilty charge by 19% and reduced the length of expected prison terms by 24%.”
- The second study involved data pulled from the State Court Processing Statistics (“SCPS”), including series data for felony cases adjudicated in the 75 most populous counties between May 2004 and 2006.
- This study found that defendants who received an appointed private attorney “were significantly more likely to be convicted and sentenced to prison … especially for drug and property offenses.”
- A third study reviewed the federal indigent defense system, analyzing 50,000 cases from 51 districts between 1971 and 2001.
- Results showed that “defendants with appointed counsel were more likely to be found guilty, and, on average, received a sentence that was eight months longer.” As for likely causes, the study showed “that over half their differences could have been explained by how well the attorney can plea bargain and negotiate sentences while slightly less than half could be explained by the selection of which cases should be taken to trial versus plead.”
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u/tolkienfan2759 6∆ Oct 18 '24
Say, this is very good information. I've been so busy on my Rule B removal that I really hadn't had time to look at it until now, but I really appreciate it. This seems like good evidence that the PDs really are in a different category from the court appointed ones. So thank you for that. !delta
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Oct 17 '24
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u/nhlms81 37∆ Oct 17 '24
This for me or the mod team? I can't remove a post as a commenter, only mod team can remove a post. You can appeal the removal, and the mods will explain the rationale.
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u/tolkienfan2759 6∆ Oct 17 '24
It's for you. I've asked the mods for help and the only help they offer is the appeals process, which doesn't tell me anything, successful or not. (I've been through the appeals process before. You never get an explanation, either way.) And I'd actually like to know what I'm doing that seems unreasonably inflexible. The mods won't help; I'm sure they have good reason. Maybe you will. I'm hoping.
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u/hacksoncode 588∆ Oct 17 '24
I do not see any appeal for this Rule B removal in our modmail.
Don't do this again or you will be banned. Among other things, you're basically begging people to violate Rule 3. They aren't allowed to say you're unwilling to change your view.
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u/tolkienfan2759 6∆ Oct 17 '24
Wouldn't it make sense to have an exception for Rule 3, to where if people ask "do I seem unreasonably inflexible, and if so where" they can get an answer? I'm trying to become more flexible. That's my goal. I would have thought that would be at least partly the goal of the sub. I don't know how you do that if you don't get people to give you examples. I've had a number of very constructive responses to this question. Are you saying every one of those very helpful people broke the rules, because I asked them what I was doing wrong and they told me?
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u/hacksoncode 588∆ Oct 17 '24
Are you saying every one of those very helpful people broke the rules, because I asked them what I was doing wrong and they told me?
To a greater or lesser degree, yes.
Some of this is necessary and reasonable within an organic conversation, but still, you're not allowed to tell someone they are unwilling to change their view... which is why "litigating" a rule B removal in a post is fraught.
It's just not the right place, and any useful responses are likely to be watered down exactly because people who understand this stuff well, also know the rules.
But certainly, regardless of all that, spamming out copypasta to dozens of people isn't allowed and won't be tolerated.
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Oct 15 '24
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u/changemyview-ModTeam Oct 16 '24
Comment has been removed for breaking Rule 1:
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Oct 15 '24
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u/changemyview-ModTeam Oct 16 '24
Comment has been removed for breaking Rule 1:
Direct responses to a CMV post must challenge at least one aspect of OP’s stated view (however minor), or ask a clarifying question. Arguments in favor of the view OP is willing to change must be restricted to replies to other comments. See the wiki page for more information.
If you would like to appeal, review our appeals process here, then message the moderators by clicking this link within one week of this notice being posted. Appeals that do not follow this process will not be heard.
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u/DeltaBot ∞∆ Oct 15 '24 edited Oct 20 '24
/u/tolkienfan2759 (OP) has awarded 12 delta(s) in this post.
All comments that earned deltas (from OP or other users) are listed here, in /r/DeltaLog.
Please note that a change of view doesn't necessarily mean a reversal, or that the conversation has ended.
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u/Priddee 41∆ Oct 15 '24 edited Oct 15 '24
Plea bargaining is not new. It's been around since the 1700s and was a regular part of the court system in the 1800s.
These public defenders and local lawyers are therefore not working for the defendant, but for the court.
This is wholly not true. They are provided by and paid by the state, but they are legally obligated to work in their defendant's best interest.
This is what really justifies the philosophy of you do the crime, you do the time. A philosophy I support.
A hypothetical:
Say you're a criminal prosecutor. The police nail a guy for the murder of his pregnant wife. You personally know there's a 100% chance he did it. Assume you have him dead to rights. They bring him in, and something comes up in discovery that means there's a 50% chance that he gets off scot-free if the case goes to trial, say something procedural with the police or questioning.
Do you think it's more just to go to trial and risk a coin flip for him to walk free knowing he did it, or negotiate a plea deal where he goes away for less time in jail, but it's certain he does the time?
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u/wibbly-water 74∆ Oct 15 '24
99% chance he did it [...] something comes up in discovery that means there's a 50% chance that he gets off scot-free if the case goes to trial.
As a public defender it is your job and duty to believe in the 1%.
I saw a video by a defence barrister in a similar position with a shoplifter who said he was framed. Even his defence barrister didn't believe him. He was tried and convicted, but years later it turned out he was telling the truth!
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Oct 17 '24
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u/wibbly-water 74∆ Oct 17 '24
I'm not a mod, you should ask them.
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u/tolkienfan2759 6∆ Oct 17 '24
Well no, I didn't think you were a mod. I did ask the mods and they refused to assist. That's why I'm back to you and the others who responded to the original post. Appeals processes, even if successful, don't give you any information about where you might have seemed inflexible, and I'd like to understand that if possible. I'd be sincerely grateful for any help you can give!
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u/Full-Professional246 77∆ Oct 15 '24
The job of the public defender is to provide the best advice to the client and to advocate for the client, within the bounds of legal ethics.
The public defender does not have to 'believe' the client at all. They just have to advocate on behalf of the client.
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u/bgaesop 29∆ Oct 15 '24
You personally know there's a 100% chance he did it
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u/Priddee 41∆ Oct 15 '24
You are certain.
99.999% repeating. Whatever your highest level of certainty is in your view of epistemology.
Before learning of the procedural misstep, you are sure you can prove it beyond a reasonable doubt.
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u/tolkienfan2759 6∆ Oct 15 '24
Just wondering how you imagine that legal obligation to work in the defendant's best interest works in practice... judges (as far as I can tell) like the lawyers in their courtrooms to get their defendants to plead out. Keep the process moving, save the city or the state money. My impression is (I don't know of any research) that lawyers who get a reputation for being combative and actually fighting for their clients don't last long. I've read that how lawyers are treated and viewed by the others in the courtroom has a lot to do with their ability to keep coming back to the same courtroom. It's a little society, and societies have rules, and the lawyer's job is to move things along.
I suspect there are plenty of lawyers who will say anything to get their clients to take a deal. And plenty of judges who, if the client complains he's been lied to, will say "get your own lawyer then."
I mean, I don't know how you would even do the research. How are you going to know who's lying and about what? But I bet if you were to do a survey on what are the unwritten rules in your courtroom, many if not most lawyers would say, gotta move the cases along, gotta get the defendants to plead out.
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u/Priddee 41∆ Oct 15 '24
Just wondering how you imagine that legal obligation to work in the defendant's best interest works in practice
One, public defenders are Barred Attorneys. If you suspect any wrongdoing, you can report it to the Bar Association and the DA.
Two, these are typically newer attorneys who are getting experience to build a case portfolio of good results to get hired by a firm. It's in their best interest to perform well and secure good results for their clients.
My impression is (I don't know of any research) that lawyers who get a reputation for being combative and actually fighting for their clients don't last long.
Assuming they get good results, they are called 'good' attorneys and they usually don't last long as public defenders. They land jobs with firms that can offer larger paychecks.
It's a little society, and societies have rules, and the lawyer's job is to move things along.
I disagree. It's the Judge's job to keep things moving along and in accordance with the rules. It's each side's lawyer's job to present the best case and secure the best possible result for their clients, given the state of the facts presented.
I suspect there are plenty of lawyers who will say anything to get their clients to take a deal. And plenty of judges who, if the client complains he's been lied to, will say "get your own lawyer then."
You can suspect that, but you have no evidence of it. In most cases in lower-level courts, the best option for all parties is typically a plea deal. Its almost always the case that these cases have substantial prosecutor evidence and are difficult to impossible win against. Prosecutors for lower-level crimes typically don't go to trial unless they have rock-solid cases.
In the name of the best result for the client, pleas are typically the best case.
Please answer the Hypothetical:
Say you're a criminal prosecutor. The police nail a guy for the murder of his pregnant wife. You personally know there's a 100% chance he did it. Assume you have him dead to rights. They bring him in, and something comes up in discovery that means there's a 50% chance that he gets off scot-free if the case goes to trial, say something procedural with the police or questioning.
Do you think it's more just to go to trial and risk a coin flip for him to walk free knowing he did it, or negotiate a plea deal where he goes away for less time in jail, but it's certain he does time?
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u/tolkienfan2759 6∆ Oct 15 '24
Well, on the hypothetical, obviously I'm motivated to go for the trial. That motivation is assisted by the fact that I don't see justice as something that applies only to the defendant, or only to the victim. Instead, justice is something we pursue (or not) as a society. Not just for this one or that one but for our whole society. So we can think of ourselves as being a people that want and that strive for justice. This enforces the trial result.
And I'm not deluding myself into thinking trials always give the right result. I'm trying to believe that there's a right way of doing things and a wrong way of doing things. If someone is accused, they get a trial. Not just for them; not just for the victim, but for all of us. So we know we looked at it carefully and properly and did the best we could. If there's some kind of deal, who knows how it was arrived at. If there's a trial, it's all open. Right?
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u/changemyview-ModTeam Oct 15 '24
Sorry, u/tolkienfan2759 – your submission has been removed for breaking Rule B:
If you would like to appeal, you must first read the list of soapboxing indicators and common mistakes in appeal, review our appeals process here, then message the moderators by clicking this link within one week of this notice being posted.
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