A Plea Regarding Plea Bargains

September 14th, 2018

Under fascist regimes, arrest rarely meant a trial was forthcoming. In Stalin’s ‘conveyor belt’ of judicial process, the arrestee was told the charge and asked whether he wanted to plead guilty before or after weeks of torture. Then the death sentence was carried out once the signature was applied to the confession.

Our system of plea bargaining is weakened by its informal nature and questionable constitutionality. Further, judges are not bound to agreements between suspects and lawyers, be those D.A.s or defense attorneys. In one famous illustration, Jonathan Pollard leaked information to a friendly government regarding terrorist bases threatening that ally. With that government entitled to the information by treaty, the leak could not be termed treason. Precedents existed with similar cases resulting in prison sentences of three to six years. Rather than face a trial on charges of treason, a plea bargain in line with the precedents was arranged for Mr. Pollard.

The judge threw out the planned deal but accepted the guilty plea. A life sentence was mandated and Mr. Pollard, in very poor health, was paroled after serving thirty years in solitary confinement. Given the nature of our judicial intent, perhaps a plea bargain that is thrown out by a judge should automatically invalidate the fear-induced confession leading to that deal. A trial should then proceed using the lesser charges, agreed to by the prosecutor, who believed those were sufficient at the time of the deal.

Our judges are often at odds with systems that propel suspects directly to confessions and require them to examine the issues piecemeal, outside of a courtroom. I would not want to see judges coerced into the conveyor belt model nor given the option of unilateral decision-making. The nature of a case that cannot be appealed by virtue of studying a trial transcript, severely hampers our democracy. Transcripts tell us truths and uncover perjury. The deals also lead to generations of lawyers who have never practiced real trial law. Without trial experience, we seriously reduce the pool of lawyers who will eventually become judicial candidates.

Its time to challenge the constitutionality of plea bargains from many perspectives.

Categories: commentary

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