Well, it’s happened. Glenn Reynolds and Michelle Alexander are going to get their wish. Alaska – for the second time in the last 35 years – has banned plea bargaining.
Straight up. No deals. No agreements on sentencing. Done, with the swift stroke of the pen of their Department of Law . Prosecutors can negotiate charges, but in any case that is a sexual felony or involves domestic violence, they no longer have to discretion to agree upon a sentence in advance.
Essentially, they’re going to charge – or overcharge – and leave the sentencing up to the judge. Welcome to a world of “open pleas” .
How does this come about? As with all “great” ideas, it comes about with a horrific rape and murder by a guy who got out of jail earlier than he should have.
The change comes in the wake of a state review that shows prosecutors botched a 2009 plea deal involving accused killer Jerry Active. Active is the 24-year-old Togiak man accused of killing an elderly Cambodian couple — Touch Chea and Sorn Sreap — in their Mountain View apartment in May. He also is accused of sexually assaulting three generations of the family, including Sorn, a toddler and a 90-year-old woman. Active had spent much of his adult life in the correctional system before the killings, which took place on the same day he was released from his latest stint in jail.
Well, I mean, if you put it that way. And so:
A new policy from the state Department of Law, effective immediately, instructs state prosecutors to stop negotiating sentencing terms in plea bargains for crimes like homicide, sexual assault, and other major felonies.
I have entirely mixed feelings about this. On one hand, I want to see if this experiment will work. On the other, I’m petrified that there are many people in Alaska who’re about to get fucked.
The system works as it currently does because there has to be a balance. While the defendant can always dangle the threat of trial, it’s usually a hollow one, because the potential for punishment after a guilty verdict – and it’s almost always a guilty verdict – is tremendous. You can bluff only up to a point. Pleas are entered to avoid that excessive punishment and to cut a bargain, essentially.
So what was the problem in Alaska?
Judges can now decide what sentence is fitting during hearings that make more information available to them: victim and witness statements, police reports and other information previously not known to the court. While judges could always request the information and reject plea deals, Niesje Steinkruger — a retired Superior Court judge from Fairbanks — says that it rarely happened under the old rules.
She describes the absence of information previously presented to judges as troubling. “When a plea is taken, usually all the judge has in front of her is a pretty thin file that only has the charging document, the complaint or the indictment,” Steinkruger said. “Judges do not have police reports. Judges do not have information from the victim, unless the victim has written a letter or is in the courtroom and provides information to the judge.”
Still not seeing it. What do defense lawyers say?
James Christie, an Anchorage defense lawyer, says the changes are beneficial even for lawyers who are intent on minimizing time served by clients. Christie says he supports the change because it puts an unbiased mediator in charge of decision-making, instead of biased defense lawyers and prosecutors. “I would much rather have sentencing narrowly tailored in each individual case by an impartial judge than I would have the conditions crafted by somebody who has a dog in the fight, which typically are the prosecutors,” Christie said.
Let’s keep in mind that the prosecutors’ office has revoked the policy of plea bargaining. They’re not revoking it because their prosecutors were too harsh and they felt bad for defendants. it’s probably being revoked because it was too lenient and some guy got out and killed someone and they don’t want to be blamed ever again. This is not a policy change designed to benefit defendants. If it were, it wouldn’t be implemented.
So, you think you’re going to do better with judges? Judges who are almost certainly former prosecutors? Judges who’ve been watching his policy change and thinking oh, now you want us to put our necks on the line?
Defendants typically get higher sentences after “open pleas”. If it weren’t the case, wouldn’t that be the prevalent method of resolution of cases?
When you’re negotiating a plea – at least here in CT, for serious cases – the judge is almost always involved. In order to maintain a semblance of credibility, the prosecutor needs to make a “reasonable” offer: one that isn’t too far outside the norm of sentences for similar crimes and defendants. The judge “mediates” or negotiates and usually isn’t too far from either number.
With an open plea, however, the prosecutor is free to ask for the maximum in each case. And why wouldn’t they? it’s open season. And when faced with the choice of two recommendations: the harshest sentence from the prosecutor and the most lenient from the defendant, where do you think the judge will end up?
Almost everyone quoted in the news reports acknowledges that this change will place a greater burden on the resources of the judicial system in Alaska. So, in a time when the defenders of the accused are already overburdened and overworked, and indigent defense systems are crumbling and the injustices in the criminal system are racking up and sprouting up under the spotlight, Alaska has found the one remaining way to make it even harder for defendants to get individualized justice. You think having to hold a sentencing hearing in every single serious felony case is going to free up time for defenders to work on more cases?
If none of this convinces you, let’s go back to the last time Alaska tried this. It banned plea bargaining in 1975, before the ban eroded and plea bargaining was back in use by 1990. But in 1978, the ban was called “successful”. What do you mean by successful? I’m glad you asked:
[...] the length of prison terms for violent crimes had increased 50 percent; terms for felony sentences rose 200 percent for white-collar crimes and 300 percent for drug violations.
Oh. I see. Success means more people getting fucked and put in jail. You can’t rely on an “unbiased mediator” when the system within which the mediator operates is rigged against the defendant. Such faith presumes that the system is inherently fair. Anyone who has spent a minute observing the system can attest to the falsity of that presumption.
There seem to be some legitimate problems with the way criminal cases are handled in Alaska. Eliminating plea bargaining will only add another.