Deal or No Deal?
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 time—a full year—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 trial—easily done if the prosecutor and the officer have agreed ahead of time that the officer will plead guilty immediately—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.
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about 5 years ago
To be honest, I didn’t really give full thought to those suggestions either.
about 5 years ago
Well, I think the underlying goal is a good one. I’m not so sure about the “punishment in lieu of exclusion” suggestion, simply because it would allow the evidence to be admitted. I’d be more for having the cops serve a sentence AND having the evidence excluded.
about 5 years ago
I’m sure you would, mister PD
I’m not convinced, however, that some criminals deserve to escape justice just because they were apprehended by other criminals. It’s better for society if both are punished, which is what happens if the cop goes to jail and the evidence is admitted (assuming a guilty verdict).
If cops are committing crimes to get evidence, why aren’t prosecutors charging them now? The answer, I think, is that charging a cop ruins their cozy relationship with the police, but they still lose their case. Prosecutors have nothing to gain.
With my proposal, prosecutors have something to gain by charging police: They get to use the evidence, which will get them a conviction. They like convictions, maybe even more than they like cops.
Once police realize that the friendly prosecutor has a good incentive to send them to jail, they’ll stop playing so fast and loose with the rules. You’ll still get what you want: No illegal evidence. Except instead of the judge excluding it, the cops will never gather it for fear of punishment.
You might not actually see these cases because charges will never be filed, but the effect will be the same as if you’d won, with less work on your part.
I know none of this is realistic, but that’s my theory and I’m sticking to it.
about 5 years ago
I see what you’re saying, but then what you’d also be saying is that as long as they’re prosecuted, the fruits of their crime are still “legal”.
It’s like a defendant getting convicted of possession of drugs and then asking for them back so he could smoke them.
about 5 years ago
I think it’s like a burglar getting arrested and cutting a deal by telling police about a house he broke into last week that was being used as a meth lab. Surely any evidence police find in a subsequent search is the fruit of the burglar’s original crime? Yet it will be allowed into evidence.
However, if a cop had found the meth lab after entering the house illegally (just like the burglar) the evidence would be thrown out, correct?
Why? Why do we use evidence obtained by any illegal means unless it’s a cop that’s breaking the law?
I think it’s because we believe that throwing out evidence is the way to keep cops from breaking the law (or at least it’s the only way that the courts can enforce) but throwing out evidence obtained by other criminals won’t really make them stop committing crimes.
As I understand the original reason for the exclusionary rule, it exists to keep police from breaking the law, not to protect defendants. (Of course, keeping police on the right side of the law protects everyone.) Freeing criminal defendants is not the purpose of the exclusionary rule, it’s the price we pay to keep cops from breaking the law.
I think it’s a price worth paying, but a lot of critics of the exclusionary rule do not. So I’ve been using my limited legal knowledge to try to imagine what a “middle way” might look like. The basic idea here comes from some book I read, which argued out that legislators and prosecutors who complain about the exclusionary rule have it in their power to eliminate it any time they want by creating an effective means for punishing lawbreaking cops.
about 5 years ago
How about just legalizing marijuana? Wouldn’t that erase a huge burden on the criminal justice system?
about 5 years ago
Oh, hell yes. I’m right there with you.