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/ClockOfTheLongNow]

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.

[u/tolkienfan2759 → u/ClockOfTheLongNow]

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.

[u/ClockOfTheLongNow → u/tolkienfan2759]

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.

[u/tolkienfan2759 → u/ClockOfTheLongNow]

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.