Sunday, July 31, 2011

The Cautionary Instruction: The much maligned plea bargain

The Pittsburgh Post-Gazette/Ipso Facto
July 29, 2011

State Representative Bill DeWeese said that Governor Tom Corbett, then attorney general, made three key misjudgments when the AG’s office indicted DeWeese. "He thought I'd never run again," DeWeese said. "If I did, that I'd never win. And he thought I'd plea bargain." DeWeese ran, he won and he wants nothing to do with plea bargaining.

DeWeese is not alone in taking issue with the plea bargain. There are no two words associated with the criminal justice system that are more maligned and misunderstood than “plea bargain.”

Crime victims despise those two words more even than “not guilty”. Politicians from city counsel to the United States Senate deride the system because of the underhanded “deals” made with vicious criminals. Even police officers, the frontline in the war on crime, challenge prosecutors when they perceive that the terms of a plea bargain are too lenient.

The plea bargain, however unpopular or unseemly, is a much needed tool in the administration of justice. If the plea bargain were to disappear the criminal courts would grind to a halt. The American Bar Association recently argued in a brief filed with the U.S. Supreme Court that 95 percent of criminal cases are resolved by plea bargain.

Setting aside the fact that the trying every criminal case is impossible, there are other compelling reasons to plea bargain. Prosecutors are intimately familiar with the strengths and weaknesses of every case. There are situations where a plea to a lesser offense is better than a not guilty verdict. A reluctant witness or a poor witness may influence a plea negotiation.

Unfortunately, many crimes are committed in rough neighborhoods that are inhabited by tough people. Witnesses often have to deal with their own demons, such as criminal records and substance abuse -- such witnesses do not impress juries. In those cases, a plea bargain may not be palatable, but is better than the alternative.

Innocence has also become an issue in plea bargaining. At times, innocent people enter into plea bargains to avoid a likely conviction at trial and the hefty sentence that often follows. Peter Neufeld, co-director of the Innocence Project, told the New York Times that 19 of the 261 people exonerated so far through DNA testing had pleaded guilty to crimes they did not commit.

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