Alex was a middle-class man in his early 30's who was in the import-export business. He had a family with a wife and three young children. Alex was accused of shooting his former business partner in an attempted murder. Alex was innocent, but the evidence against him was very strong with an eye-witness willing to testify that he was the shooter and physical evidence that pointed to him.
Alex was arrested and while in custody he was interviewed by the police for more than an hour. Thinking that he was protected by his innocence, Alex waived the right to have an attorney present. The tape of the interview shows that the police used only appropriate interviewing techniques. One played the role of the "bad cop," correctly and repeatedly telling Alex that the government had a great case with good witnesses and strong physical evidence, and that if Alex was convicted after a trial, he would be in jail for at least 25 years and possibly for life. The "bad cop"officer was intimidating and threatening. The "good cop" was very sympathetic to Alex's family situation. He said that if Alex agreed to plead guilty the police officer could get the prosecutor to recommend a 10-year sentence so that Alex could live with his children again before they grew up. If Alex got out in ten years, he could see his oldest daughter graduate from high school. Again and again Alex insisted on his innocence and refused the idea of a plea bargain. Again and again the police officers tried different ways, some harsh, others apparently sympathetic, to convince Alex to confess. Alex refused to confess and maintained his innocence.
Alex was in jail for about two months, until his family could raise the $100,000 to pay the bail bondsman to get him out on his $1,000,000 bail. (The bail was high because of the seriousness of the charge and because Alex was considered a flight risk. He was in the import-export business and had contacts in foreign countries.) The $100,000 was the bail bondsman's fee and it would never be returned, even if Alex won his trial. The first lawyer that Alex hired charged him a $25,000 flat fee and then refused to investigate the case. The lawyer advised Alex to plead out. Then Alex got a new lawyer paying him more than $50,000. This lawyer did his job, investigated the case, and found evidence that Alex could not possibly have fired the shot that injured his former business partner, the trajectory of the bullet was all wrong for that to have happened. The lawyer showed the evidence to the DA who claimed that he could still get a conviction. However, the day before trial, the DA dropped the case entirely!
It probably took Alex about ten years to recover financially from the costs of maintaining his innocence. However, he has no criminal record and he did not suffer the indignity of having to admit to a crime he did not commit.
One of the key elements in the plea bargain system is the "trial penalty," the fact that a defendant who insists on a jury trial and is convicted will get a longer sentence than a defendant who pleads guilty and enters into a plea bargain. In addition, as the story of Alex shows, justice, even for the innocent, can be expensive. Balanced against stories such as the one described above are the millions of people who have avoided the expense of trial and received more lenient sentences by entering into a plea bargain. In addition, every day the plea bargaining system benefits society by achieving some measure of justice at tremendous cost savings.
Question #1: Studies show that people who are innocent are less likely to enter into a plea bargain than those who are guilty. Thus, innocent people who are ultimately convicted will suffer more severely from the penalty of an increased sentence. Innocent people who are eventually acquitted still incur the costs of a defense. What are the implications of this to a justice system that relies on plea bargains?
The overriding duty of the prosecutor is to see that justice is done. This means that if a prosecutor, at any point, even after conviction, becomes convinced that a person is not guilty of the crime of which he was convicted, the prosecutor should seek dismissal of the case or try to overturn the conviction. This is exactly what the prosecutor eventually did in Alex's case. However, prosecutors are usually judged on their conviction rate. In addition, district attorneys are politicians who could sacrifice their popularity if they allowed someone to go free who was thought by large numbers of the public to be guilty. Thus, the prosecutors may push for plea bargains in which innocent people plead guilty to crimes they did not commit. On the other hand, prosecutors who want to keep up their conviction rates, may agree to plea bargains that don't adequately punish a defendant and don't effectively deter crime.
In most jurisdictions, the judge who will preside over the trial is not permitted to be involved in the plea bargain. The judge can only accept the plea bargain or reject it. The idea is that the judge who presides over the trial could become biased toward the prosecution if he knows that the defendant is thinking seriously of admitting guilt. By the same token, the prosecutor doesn't want to try a case in the Courtroom of a judge who thinks that the prosecution has been unreasonable in its plea bargain negotiations. Judges almost always accept plea bargains.
Question #2: Many people charge that the legislatures of some states and the federal Congress have increased the length of sentences for some crimes, not because the law-makers believed that the severity of the crime justified the longer sentence but only to give prosecutors an edge in plea bargaining. Is this good public policy? Explain your reasons.
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