Tuesday, September 7, 2010

"Rough justice" from plea bargaining called intolerable

"For pity is the virtue of the law,
And none but tyrants use it cruelly."
- Wm Shakespeare in "Timon of Athens"

This from the recent book Ordinary Injustice: How America Holds Court by Amy Bach:
… plea bargaining is the main vehicle for facilitating substantive justice.  Plea bargaining is justified on grounds of expediency.  It also tends to make judges, prosecutors, and defense attorneys look good.  Unlike a trial, pleas, by and large, cannot be appealed: the defendant has in effect bargained away his rights.  Pleas also keep the conviction rates high because a prosecutor doesn't run the risk of losing in a trial.  And it keeps a defense attorney's workload manageable.

Ordinary Injustice: How America Holds CourtAlbert W. Alschuler[, a professor at Northwestern University School of Law,] has made a comprehensive study of the problem of plea bargaining and coercion. "Once you get used to it," he said, "you don't even notice the injustice."  The cost is a metamorphosis of the system, in which power comes to reside in the one person who has the authority to approve a plea.  "I think you ought to use the word fascism," he said when asked about the conditions in American courts.  "Most people don't understand what rights and procedures are for.  They look to the bottom line: did we do rough justice in most cases?"  They don't realize that "the answer is usually going to be yes.  If you asked about justice in the former Soviet Union or the People's Republic of China or Saddam Hussein's Iraq the answer would also be yes.  If you make me a czar and you say I can do whatever I want … well, I am going to do rough justice in most cases.  But that is intolerable."  According to Alschuler, one solution is to get rid of plea bargaining altogether.  In its place, the system should reduce the "over-proceduralization" of full-blown jury trials with simpler trials which may, for example, be conducted by a judge alone.

Another leading scholar, John H. Langbein, a professor at Yale Law School, has decried plea bargaining as a form of a tortured, forced confession.  In an interview, Langbein argued that adversarial criminal procedure is unworkable as a system of mass justice.  In practice it comes down to "coercion," he said.  "And it is truth disserving."
Those who are especially apt to lose out on justice because of plea bargaining are indigent homeless folk, and especially so in hard economic times.

The system, including attorneys on both sides and the judges, will press for a deal to be struck, to forgo any long procedure and expensive trial process. The defendent is caught in the crosshairs, with everyone urging that he accept any proffered deal. Damn a real, honest effort at justice, full speed ahead!

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