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The Good, the Bad and the Ugly of Plea Bargains

W. Scott Cole

Posted on July 8, 2018 02:47

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Plea bargaining is the most used tool prosecutors have, but is it being overused? When the prosecutors of our country brag about a high conviction rate. That rate is over-inflated by the overuse of plea bargaining.

Since 2003, the conviction rate in federal courts has been over 99%. There are 20 federal judicial districts that in 2015 had a 100% conviction rate. Twenty-eight other judicial districts had one defendant that was acquitted in that same year.

Those districts account for over half of the total districts in the U.S. When you first see statistics like this, you think our court system is working as intended by the framers of the Constitution, who envisioned a conviction only after an indictment, followed by a trial by jury. When you look closer, you see that the high conviction rate is driven by plea bargains, which constitute over 97% of total convictions.

I have a problem with those numbers. First, a 100% conviction rate means the prosecutors are perfect. Not possible. A conviction rate even close to 100% means prosecutors that are very close to perfect. Also not possible.

It was not intended to be that way. The use of plea bargains in the U.S. began rising about 1880. It was an easy way to get convictions and made the jobs of the courts system easier for everyone involved.

Today, prosecutors force plea bargains so they don’t need to worry about their burden of proving a crime beyond a reasonable doubt, which is a very high standard. They overcharge and then tell defendants that if they are convicted of every charge, they can be sentenced to decades in prison. This scare tactic works.

When the prosecutor offers a plea bargain offering to drop all the charges but one, which carries a sentence of a fraction of the time threatened, the defendant jumps at it. Very few realize that the charge they plead guilty to is actually the only one that they could have been convicted of at trial. In addition, they make sure that defendants know that if they go to trial, they could be on bail or in jail for a year or longer. The plea bargain cuts that time to just a couple of months.

It is true that there are defendants who can be convicted of more than one of the crimes charged, so accepting the offer makes sense because they know the evidence against them is unsurmountable. These defendants are one instance of a time a plea bargain is used properly. The only other time I can think of is when a defendant is offered a plea bargain to provide evidence against a superior in a criminal organization (think drug rings and organized crime).

There are two sad results of the overuse of plea bargains: First, innocent people are coerced into pleading guilty to a crime they never committed; and second, they have become so integral to the justice system, that if even half of defendants insisted on going to trial, the court system would collapse. Only the very worst crimes would make it to trial in the speedy manner demanded by the Constitution, meaning many criminals would never pay for their crimes.

W. Scott Cole

Posted on July 8, 2018 02:47

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