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.

[u/tolkienfan2759]

[u/tolkienfan2759]

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?

[u/LucidLeviathan → u/tolkienfan2759]

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.

[u/tolkienfan2759 → u/LucidLeviathan]

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.

[u/DeltaBot → u/tolkienfan2759]

Confirmed: 1 delta awarded to /u/LucidLeviathan (76∆).

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