Last night I noted that I planned to write about plea bargaining. By an incredible coincidence, the front page headline of today’s New York Times trumpeted: “Justices Expand Right of Accused in Plea Bargains.”
As readers are probably aware, very few criminal cases are decided by a jury trial. According to the article, last year 97% of federal cases were decided by a negotiated plea of guilty. Judges like it--their calendars are cleared. Prosecutors like it--they get a conviction. Defense attorneys usually like it--they get paid and do not have to prepare for trial. Even criminals like it--they get a lesser sentence than if they had a trial. On the other hand, if you are not guilty, think what you would do if the prosecutor said, “Plead guilty and get community service. Go to trial and if you are found guilty, you can get up to ten years.”
This means that our “justice” system is controlled by prosecutors. Their discretionary power is amazing. In the Rutgers case a student filmed his gay roommate’s sexual activity and shared the film. The roommate later committed suicide. The filming was despicable. The student should have been punished. Nevertheless, the gap between community service (which he was offered) and ten years in jail (which he received at the end of the the trial he demanded) is a travesty of justice.
Justice Kennedy in the decision discussed in today's paper said, “The right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining takes in securing convictions and determining sentences.” I would have gone much further. I would have ruled that the difference between a negotiated plea and jury verdict cannot be disproportionate. What is disproportionate could be defined by further litigation.
The Court's decision on effective counsel for plea bargaining was 5-4. Scalia, Roberts, Alito, and Thomas were the four.
No comments:
Post a Comment