08 Sep 2014

Further Thoughts on Plea Bargains

Police, Shameless Self-Promotion 14 Comments

I tried to deal with some of the (excellent) objections I got from my last post. An excerpt:

Don’t plea bargains minimize the coercion against individuals? As one critic put it, who is the “victim” here? How does a defendant lose by being offered a deal that he has the right to refuse?

Although superficially plausible, this way of framing the issue might be misleading. Look, by the same token I can describe it like this: I’m not suggesting that the government remove the ability of defendants to accept plea bargains. Rather, I’m suggesting that the government take away the option from prosecutors of offering them.

14 Responses to “Further Thoughts on Plea Bargains”

  1. khodge says:

    Is there really a difference? The government has deep pockets and will always offer incentives to those of its prosecutors who are best at crushing the opposition. You’d be better off finding some way to stop the incentives to crush taxpayers or find some way to convince the bureaucrats that we are their employers not the “opposition.”

    • Grane Peer says:

      I don’t know how you run your business and I don’t want to make a judgement here but by no stretch of the imagination do I employ anyone in government. If I can make any business comparison it would be that co-ops suck.

      • khodge says:

        Not a good idea to taunt the government…they know where you live (and have your email for the last 10 years).

        Like it or not, it’s non-voluntary taxes that cover the wages of government employees so you actually employ everyone in government.

        • Grane Peer says:

          I got a lot of severance packages to put together

  2. K-Veikko says:

    A logs as there is no money in the game there is no way of determining the optimum.

    The price of the offer (eg cost of 20 years in prison) should be on the table for ALL PLAYERS to win in the negotiation.

  3. Ben Kennedy says:

    I am reminded of Mike Munger on EconTalk talking about voluntary vs “euvoluntary” transactions. These plea bargains offend our sensibilities due to the disparities in BATNAs – the best alternative to a negotiated agreement. If your next best alternative to a negotiated two year sentence is a decent risk of a 20 year sentence, then the disparity is just too high, and it isn’t really a voluntary plea after all. The Supreme Court standard of “Voluntary and intelligent” definitely is not met

  4. William Anderson says:

    All of these posts have failed to recognize one important point: a defendant will take a plea because he/she will be punished for taking a case to trial and losing. As one who has written many articles and papers about wrongful convictions, I have no confidence at all in the American system of “justice” to determine guilt or innocence. We saw last week that two black men in North Carolina were exonerated of juries declaring they had murdered someone else.

    In that case, the prosecutorial and police misconduct was overwhelming from the start. First, police coerced false confessions from them when they were teenagers. (Let me say right here that anyone reading this post after 24 hours in police custody would confess to nearly anything even if police did not lay a hand on them. In this day of unionized and unaccountable police, it is easy to get false confessions.)

    Second, the police and prosecutor hid exculpatory evidence. Third, like most Americans these days, jurors simply believed everything that government employees were telling them, even though those employed by the State of North Carolina were lying.

    Lying is a way of life with American police and prosecutors, and the federal system even is worse than the state systems. I have nothing good to say about police or prosecutors, or even judges. Yes, there are a few good apples, but the system is pretty rotten.

    Furthermore, there is no desire even by many so-called reformers to fix anything. The Innocence Project has had Janet Reno on its board despite the fact that Reno came to fame in the early 1980s with the “Miami Method” of extracting wrongful convictions against innocents charged with child molestation. (Read the accounts in Frontlines’ series on Reno’s rampage and you will get a small sense of just how evil this woman really is.)

    A month after coming to the Justice Department, Reno burned 80 people to death at Waco, many of them elderly, women, and children. Yes, yes, Hillary Clinton was pulling the strings, but Reno lacked the integrity to resign and thus also bears responsibility for the deaths of innocent people.

    So, when the Innocence Project places a monster like her on its board, one must wonder about the seriousness of this organization.

    When police and prosecutors are above the law and when there are no consequences for government employees who urinate on the law daily, plea bargains are just one more tool of oppression. I’m sure some readers are saying, “Come now, an innocent person would not sign a plea bargain.” Oh, yes they would, especially when the see how things are stacked against them. True, most people in the system are guilty of something, but not everyone. And when the government creates an industry of the guilty plea, it only mocks justice.

    • Harold says:

      ” “Come now, an innocent person would not sign a plea bargain.” Oh, yes they would, ” Totally agree. Of course they would if they believed there was a reasonable chance of false conviction. A rational person probably should not consider their actual guilt or innocence, just the chances of conviction regardless.

      One could imagine a case where a “time served” offer was made. Accepting the plea gets you out of jail straight away. Going to trial leads to longer incarceration. Tempting, even if you are innocent.

      Far any individual, the plea bargain is only offering one more choice, so for them it is not a bad thing. The problem arises because the existence of the plea bargains distorts the whole investigation / prosecution machine. If every case went to trial, the investigation would need to establish evidence beyond reasonable doubt in every case before prosecution. With plea bargains, it only needs to gather enough evidence to offer some chance of conviction before a plea bargain is offered. If the evidence is very slight, a very good offer is made. The police can clear up crimes with little evidence of the real culprit.

  5. Transformer says:

    Suppose a private community has a rule that punishes a certain property rights violation with a $1000 fine paid by the perpetrator to the victim.

    If cases are disputed the private court charges $200 for arbitrating and the costs are paid by the winner.

    Suppose their is a case where the victim think they have a 25% chance of winning and the perpetrator a 50% of winning

    The alleged perpetrator can either gain 0 or lose $1,200 (average expected loss $600)
    The alleged victim can either gain $1000 or lose $200 (average expected gain $400)

    They will both gain if they settle on a $500 transfer from the victim.

    Surely this is win/win ?

    Assume that the court costs are actually $150 dollars (they make a $50 profit). Suppose they are the ones’ that broker the deal. They arrange for the alleged perp. to pay $475 to the alleged victim and $50 to the court.

    Seems like this is then win/win/win.

    Assuming may math is correct what is wrong with the above logic ?

    • Harold says:

      I think you mean costs are paid by the loser.

    • Transformer says:

      yes, good spot.

  6. JimS says:

    Mitigation or plea bargains have been around for a while. Remember Br’er Rabbit convinced Br’er Fox to throw him in the briar patch rather than the pit.

    What is forgotten through all of this is that the sentence is first and foremost a punishment. If you are to be punished, then of course you will take the lesser punishment. As kids, some of us were falsely blamed, but if we had a choice as to our punishment we would have taken the lesser, especially if we hadn’t done it.

    The problem with restitution or rehabilitation is that it is not necessarily punishment. If a murderer is immediately remorseful do we let him go? If there were some miracle vaccination he could receive that would stop him from further murders and make him a productive member of society, should he be set free or his sentence reduced? What if Jonas Salk were a pedophile, do we cut him slack because he saved so many children?

    I do not think we do as we are administering punishment. Do parents forego disciplining children because it may save time or money?

  7. Greg Morin says:

    I think the travesty here is not so much having to do with the plea bargain itself but rather that the state can either (a) falsely accuse (the guy didn’t do it) or (b) falsely criminalize (guilty of a victimless crime) an individual and then bring all the power of the state to bear on that individual by presenting a “damned if you do, damned if you don’t” kind of offer.

    So in the case of (a) and (b) the accused is exactly like your example of a wholly innocent person being plucked out of society and presented with an ultimatum from the state. That’s the travesty, that they have been singled out and threatened. The form of the threat is secondary to the fact that the state has the power to make and carry out the threat.

    And if the accused does happen to be guilty of an actual crime (murder, theft, etc) they aren’t the victim if offered a plea bargain, they’re happy to take it… the victim is the victim again, in knowing the one that violated their rights just gets a slap on the wrist (so to speak).

    In a stateless society with private courts I have no doubt plea bargains would abound, as one of the commenters above mentioned, it would just come down to a financial incentive (economizing) in many cases and there’s nothing really “wrong” with that because in such a society everything is voluntary, i.e. if both parties subscribe to an insurer that stipulates they may prosecute or defend cases on your behalf where plea bargaining takes place then you agree to participate in good faith, etc. You also agree that if your insurer A does plea bargains but they go up against insurer C who never does them you understand in such a scenario you will not have the plea bargain option. In a stateless society scenario (b) wouldn’t even exist as there would be zero reason for anyone to pursue such “crimes”.

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