Mike at C&F lamented yesterday that plea bargaining
has turned our system into one that is supposed to convict the guilty and free the innocent into a risk-management system. It has turned lawyers into actuaries . “Is going to trial worth the risk?” is what lawyers ask clients. Innocence has little to do with the decision to take a deal.
Cases that highlight this dilemma abound. Julie Amero, for one. The border agents case is another. So what can be done? The logical suggestion is to leave the state to its burden of proof in each case and take everything to trial.
Windypundit jumps in with some radical ideas for criminal justice of his own. His suggestions:
Reverse Truth-In-Sentencing – if you don’t serve felony timeâ€”a full yearâ€”it doesn’t count as a felony.
Performance Pay for Indigent Defense – pay indigent defense lawyers for their performance.
Punishment in Lieu of Exclusion – If a judge rules that a piece of evidence was obtained illegally, allow the prosecutor to immediately indict the responsible police officers for “improper evidence obtainment,” a newly-created crime with a mandatory minimum sentence of, say, 60 days in jail. If the officers are convicted and sentenced before the main criminal case goes to trialâ€”easily done if the prosecutor and the officer have agreed ahead of time that the officer will plead guilty immediatelyâ€”the illegally obtained evidence is allowed back in.
Limited Incarceration Without Trial – This would allow the worst of the worst to be imprisoned even if the cases against them have technical flaws.
No Miranda Warning
While I have not yet given full thought to his suggestions, one not so radical idea did seem to me a way to streamline the process. As several jurisdictions have done, all interrogations should be videotaped. This, in many instances, will eliminate the problem of the forced confession and lead to less Motions to Suppress.
This idea is gaining steam in some sectors, but I’d like to see it implemented nationwide.