Plea Bargain
The recent cases of Michael Kopper, the Enron book-cooker, and John
Walker Lindh, the Taliban fellow-traveler, both ended with a practice
that, according to Stephen Schulhofer, an N.Y.U. law professor, is
wrongly considered almost "inevitable" by most players in the justice
system: a plea bargain. Kopper exemplifies one common type -- the
white-collar criminal with a good lawyer who agrees to help prosecutors
hook bigger fish in exchange for a much lighter sentence than he might
otherwise get (and thereby sparing the state the costs of a trial).
Lindh typifies the defendant who pleads to avoid the possibility of
execution;
the government's reward includes not having to expose security sources
(or, perhaps, a weak case) if the case goes to trial.
The Bill of Rights makes no mention of the practice when establishing
the fair-trial principle in the Sixth Amendment, but the constitutionality
of plea bargaining has been repeatedly upheld, and the bargain's basic
dynamic is well known to viewers of pulp TV. In fact, says Albert
Alschuler, a University of Chicago law professor, roughly 90 % of
convictions occur when the defendant waives the right to trial and
pleads guilty. And most of those pleas involve a deal that reduces punishment.
According to George Fisher, a former prosecutor now at Stanford Law
School: "The general public tends to regard plea bargaining as too
lenient. The defense bar and others of like mind think it too
coercive." Schulhofer and Alschuler are among the strongest academic critics of the practice, emphasizing the economic motivation behind it.
"Court-appointed defenders are typically paid for only the 1st 15 or 20 hours' worth of work -- and prosecutors have a strong incentive not to lose," Schulhofer says. "This is a conflict of interest problem."
The efficiency gained by plea bargains outweighs their evils,
proponents say. Some members of the so-called law-and-economics school, like Frank Easterbrook, an appellate judge who lectures at the University of Chicago, also claim that plea bargaining gives defendants more autonomy.
Fisher counts himself in the middle. He says that the practice is "a
skulking truce" but considers it practically unavoidable, if the system
is not to grind to a halt, and nowhere near the systemic blight limned
by opponents.
A Little History
The plea bargain was a prosecutorial tool used only episodically before
the 19th century. "In America," Fisher says, '"it can be traced almost
to
the very emergence of public prosecution -- and public prosecution,
although not exclusive to the U.S., developed earlier and more broadly
here than most places." But because judges, not prosecutors, controlled
most sentencing, plea bargaining was limited to those rare cases in
which
prosecutors could unilaterally dictate a defendant's sentence. "Not
until
the crush of civil litigation brought on by the explosion of personal-
injury cases in the industrial era did judges begin to appreciate the
workload relief plea bargaining promised." In other words, plea
bargaining is arguably another outgrowth of late-19th-century
industrialization.
1633: Galileo gets house arrest from the Inquisition in exchange for
his
reciting penitential psalms weekly and recanting Copernican heresies.
1931: Al Capone brags about his light sentence for pleading guilty to
tax
evasion and Prohibition violations. The judge then declares that he
isn't
bound by the bargain, and Capone does seven and a half years in
Alcatraz.
1969: To avoid execution, James Earl Ray pleads guilty to assassinating
Martin Luther King Jr. and gets 99 years.
1973: Spiro Agnew resigns the vice presidency and pleads no contest to
the charge of failing to report income; he gets 3 years' probation and
a
$10,000 fine (roughly 1/3 of the amount at issue).
1990: Facing serious federal charges of insider trading, Michael Milken
pleads to lesser charges of securities fraud; soon after, his 10-year
sentence is reduced to 2 years.
Bargains Abroad
Defenders of American-style plea bargaining point out that its utility
is
proved by other countries' increasingly explicit adoption of the U.S.
model. Once forbidden in most of Europe and technically banned in
Japan,
plea bargaining has steadily crept into many countries' systems during
the past generation. "In Germany, they say it's still controversial,"
Alschuler says, "but most observers say it happens there now. And Italy
went so far as to pass federal legislation formally legalizing it." The
Japanese claim that the practice is horrible, but then, Alschuler
notes,
"they make a very big deal about repentance for your crimes." That need
to put remorse on display, which can't exactly be a legal sentence,
means
that "it's hard to deny that they have something like it." Scandinavian
countries largely maintain prohibitions against the practice.
Pop Pleas
* "Return to Paradise" (1998) turns on a complex plea bargain involving
Americans caught up in a Malaysian justice system.
* ". . . And Justice for All" (1979) slams the inequities of the
criminal
justice system, including the ugliness of plea bargaining. (Al Pacino
is
dragged from the courtroom screaming, "Wanna make a deal?")
* John Proctor struggles with honor, faith and an offer he can't refuse
-- or can he? -- in "The Crucible," by Arthur Miller (1953).
Game Theory for the Defense
>From 'Law's Order,' by David Friedman, of the Santa Clara University
School of Law
For a real prisoner's dilemma involving a controversial feature of our
legal system, consider plea bargaining.
The prosecutor calls up the defense lawyer and offers a deal. If the
client will plead guilty to 2nd-degree murder, the district attorney
will
drop the charge of 1st-degree murder. The accused will lose his chance
of
acquittal, but he will also lose the risk of going to the chair.
Such bargains are widely criticized as a way of letting criminals off
lightly. Their actual effect may well be the opposite -- to make
punishment more, not less, severe. How can this be? A rational criminal
will accept a plea bargain only if doing so makes him better off --
produces, on average, a less severe punishment than going to trial.
Does it not follow that the existence of plea bargaining must make
punishment less severe?
To see why that is not true, consider the situation of a hypothetical
district attorney and the defendants he prosecutes. There are 100 cases
a year; the D.A. has a budget of $100,000. With only $1,000 to spend
investigating and prosecuting each case, half the defendants will be
acquitted. But if the D.A. can get 90 defendants to cop pleas, he can
concentrate his resources on the 10 who refuse, spend $10,000 on each
case and get a conviction rate of 90 %.
A defendant faces a 90 % chance of conviction if he goes to trial and
makes his decision accordingly. He will reject any proposed deal that
is worse for him than a 90 % chance of conviction but may well accept one
that is less attractive than a 50 % chance of conviction, leaving him
worse off than he would be in a world without plea bargaining. All
defendants would be better off if none of them accepted the D.A.'s
offer, but each is better off accepting. . . . Individual rationality does not
always lead to group rationality.
Study List
* Overview: "Plea Bargaining's Triumph: A History of Plea Bargaining in
America," by George Fisher (due from Stanford University Press in
February).
* Arguments for and against: Robert E. Scott and William J. Stuntz's
"Plea Bargaining as Contract" and Frank Easterbrook's "Plea Bargaining
as
Compromise," Yale Law Journal, vol. 101 (1992).
* Trenchant critique: Stephen Schulhofer's "Is Plea Bargaining
Inevitable?" Harvard Law Review, vol. 97 (1984).
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(Dirk Olin is the national editor at The American Lawyer.
(source: New York Times)
