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Opening Arguments

Pleas stop it

Has our criminal justice system become a crime?

Here's how it's supposed to work: Upon evidence that a crime has been committed — Professor Plum, found dead in the conservatory with a lead pipe on the floor next to him, say — the police commence an investigation. When they have probable cause to believe that someone is guilty, the case is taken to a prosecutor, who (in the federal system, and many states) puts it before a grand jury. If the grand jury agrees that there's probable cause, it indicts. The case goes to trial, where a jury of 12 ordinary citizens hears the evidence. If they judge the accused guilty beyond a reasonable doubt, they convict. If they think the accused not guilty — or even simply believe that a conviction would be unjust — they acquit.

Here's how things all-too-often work today: Law enforcement decides that a person is suspicious (or, possibly, just a political enemy). Upon investigation into every aspect of his/her life, they find possible violations of the law, often involving obscure, technical statutes that no one really knows. They then file a "kitchen-sink" indictment involving dozens, or even hundreds of charges, which the grand jury rubber stamps. The accused then must choose between a plea bargain, or the risk of a trial in which a jury might convict on one or two felony counts simply on a "where there's smoke there must be fire" theory even if the evidence seems less than compelling.

This is why, in our current system, the vast majority of cases never go to trial, but end in plea bargains. And if being charged with a crime ultimately leads to a plea bargain, then it follows that the real action in the criminal justice system doesn't happen at trial, as it does in most legal TV shows, but way before, at the time when prosecutors decide to bring charges. Because usually, once charges are brought, the defendant will wind up doing time for something.

The problem is that, although there's lots of due process at trial — right to cross-examine, right to counsel, rules of evidence, and, of course, the jury itself, which the Framers of our Constitution thought the most important protection in criminal cases — there's basically no due process at the stage when prosecutors decide to bring charges. Prosecutors who are out to "get" people have a free hand; prosecutors who want to give favored groups or individuals a pass have a free hand, too.

The News-Sentinel editorial board did its primary election innterview this week with Karen Richards, whom I've always liked and respected. I don't have the sense -- and I've never really heard it alleged -- that the kind of abuse described above happens here, where they're out to "get" somebody, then find a way to do it. I'm sure it happens here and there in Indiana, but I doubt if it's a common pracitice. (OK, bring out the Naivete! alert).

But I think we have the same problem here as in most other jurisdictions -- huge overuse of plea bargains. You can never get a prosecutor to admit it because they rely on them so much, and you can see their point. The Allen County prosecutor's office, for example, has 30 -- count 'em, 30 -- lawyers who have to handle about 30,000 misdemeanor and 30,000 child support cases a year even before thinking about the thousand or so cases each in Circuit and Superior courts. Without some use of plea bargains, the system really would break down.

But overreliance on plea bargaining is bad for a lot of reasons, especially including the problem noted above, which is the absence of due procress in pleadings, or at least the ability of the system to do a wink-and-a-nod around due process. And since it's an out-of-the-public-eye process, we can't keep a good handle on what our justice system is doing.

If you want to think about the issue further, check out this back and forth at debate.org, a site where the public can enter into the fray on policy questions to vote and express and opinion. The vote on "Does plea bargaining undermine the criminal justice system?" by the way was 50 percent yes, 50 percent no. So, it's apparently a tough call for most people.