Bargain Hunting

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

The Sixth Amendment gives the criminally accused the right to a public trial.

But the ink was barely dry on the Bill of Rights before people started to think, well the hell with that.

Starting in the 1800s, more and more folks and their lawyers abandoned trial, speedy or not, to trade guilty pleas for less serious charges and sentences, to avoid the opposite.

The plea bargain began as an aberration in the criminal justice system, as all new things begin. Out on the West Coast, where I came from, in the thirty years starting in 1880 only about ten percent of all criminal defendants took plea bargains. Today, over on the East Coast, a Rutgers Law School professor writes that ninety-eight percent of criminal prosecutions across the United States are settled by plea bargain.

Thea Johnson, who wrote the 2023 Plea Bargain Task Force Report commissioned by the American Bar Association’s Criminal Justice Section, says three years’ work went into the report, which contains few solid recommendations but outlines fourteen principles to reduce injustices in the system. You can see them here.

The fact is that plea bargaining works mainly to the benefit of guilty people and universally disadvantages the innocent.

My neighbor across the street pleaded guilty to a crime I knew he did not commit because his lawyer was so terrified of actually trying the case in court that they spent more time communicating that fear to their client than communicating his innocence to the prosecutor.

I’ve been scared, too. Not of trial, but of what going to trial was doing to my client. Already thin, the client had lost thirty pounds — couldn’t eat, couldn’t sleep, and, I feared, would be dead before a verdict. We took a deal. There was a death anyway — not of the accused, but of the prosecutor, a decent young person who had seen what I saw, wanted to dismiss but had been forced by the elected district attorney to proceed, and couldn’t bear it.

So, what to do about prosecutors who pile on charges to coerce innocent people to settle for a small punishment rather than risk a much bigger one?

Lawyers could say, see you in court, but, probably not.