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News-Sentinel.com Your Town. Your Voice.
Opening Arguments

Bad bargain

This is an issue that has bugged me for years:

By now, there have been lots of ideas for how to rein in prosecutorial power. Some have suggested judges should play a bigger role in reviewing charging decisions. Others want to reduce the number of laws on the books, so that people can’t be charged with 13 overlapping crimes when they’ve really just committed one or two. Others still have argued that prosecutors should be forced to reimburse citizens for legal fees when charges end up getting dropped or they’re found not guilty.

But an outspoken group of thinkers has proposed another approach to the problem—one that begins with the observation that fewer than 5 percent of cases brought by American prosecutors every year lead to an actual jury trial, while the rest play out in plea bargains almost entirely behind closed doors. In practice, that means juries have all but vanished from the justice system, replaced by a highly efficient machine that processes cases without ever stopping to consider what seems moral or fair. To rein prosecutors back in, these scholars argue, America should reinstate ordinary citizens to their rightful place in the process, and with them a common-sense vision of fairness.

[. . .]

“What we really have is a plea bargain system with a thin froth of showy trials floating on top,” said Glenn Reynolds, a professor at the University of Tennessee College of Law who published a widely circulated paper earlier this month on the topic of prosecutorial overreach.

Changing this, say reform-minded experts like Reynolds, would not necessarily require a radical reworking of how prosecutors do their jobs. Instead, it would be enough to strengthen an institution that’s already in place, though widely marginalized: the grand jury, a panel of citizens who are supposed to watch over the shoulders of prosecutors to make sure their fellow citizens aren’t being improperly charged, bullied, or targeted arbitrarily.

I've known a few prosecutors and whenever I've brought up the subject of excessive plea bargaining, the answer is always the same: Without them, the already clogged-up system would grind to a halt. But I think this article gets at a reason closer to the truth: A prosecutor is judged on the number of cases successfully closed, and plea bargaining is the best and quickest path to a win.

I happen to like Karen Richards and respect the job she's doing as Allen County prosecutor. But our chance of getting true justice should not depend on the competence and good will of whoever happens to be in the prosecutor's office. The system should work for us even if somebody incompetent or dishonest is there. As long as what we have is "a plea bargain system with a thin froth of showy trials floating on top," then that fair-trial, rights-of-the-denfendant stuff we were all taught in school is a bunch of fairy tail crap.

Some jurisdictions actually have banned plea bargaining, and guess what: The system did not grind to a halt:

Other jurisdictions have taken plea bargain bans a step further. In parts of Alaska, New Orleans, California (Ventura County) and Michigan (Oakland County), plea bargaining has been terminated. Gone. Illegal. So, what is the result? In "Subverting Justice", writer Robert Bidinotto argues that "ending plea bargaining [puts the] responsibility back into every level of our system: police [do] better investigating; prosecutors and lawyers began preparing their cases better; lazy judges were compelled to spend more time in court and control their calendars more efficiently. Most importantly, justice was served--and criminals began to realize that they could not continue their arrogant manipulation of a paper-tiger court system." [Id at page 76]. I don't agree with this position on almost every level, but you know what they say about opinions. That being said, many countries have outlawed plea bargains.