Offering “Plea Bargains” Is Actually a Horrible Government Practice

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By Robert P. contributor

Because it is so commonplace, most people accept the practice of State prosecutors offering a “plea bargain” withoutplea bargain much thought. After all, it seems like a win-win situation: the State saves on court costs and other resources, while the defendant who takes the “deal” does less time than what he or she is likely to suffer if the case goes to a full trial. Yet even though they are very common in the U.S., a prosecutor offering a plea bargain is actually quite horrible and a travesty of justice, when you think about it from a certain perspective.

To warm you up to my view–which may at first seem odd–consider this quotation I found from a legal website: “Plea bargains are extraordinarily common in the American legal system, accounting for roughly 90% of all criminal cases. Many countries, however, do not allow plea bargains, considering them unethical and immoral.” Isn’t that interesting? By the end of this post, you’ll understand why this typical U.S. practice is considered a miscarriage of justice in many other parts of the world.

Rather than tackling the specific exchange that occurs in a plea bargain, let me start with something simpler and work up to it through a series of slight tweaks:

Step #1:  Suppose a government prosecutor wants to convict Jim Smith of manslaughter in a case where Smith was drinking heavily and accidentally killed a pedestrian while driving home from the bar. So the prosecutor approaches somebody who had been at the same bar as Smith that night, the whole time he was getting progressively drunker. The prosecutor offers to pay that person $50,000 (in the form of a check from the state treasury) in exchange for his testimony against Jim Smith, in order to help the prosecutor secure conviction on the charge of manslaughter. Does this sound like an acceptable practice?

Most people would surely recoil and say, “Of course not! That would be incredibly unfair to Jim Smith. How in the world would any sane legal system allow the government prosecutor to pay such a massive bribe to a witness, in order to get testimony to convict a defendant?! Sure, the witness could still take an oath and get in trouble if he’s caught perjuring himself, but give me a break, a $50,000 bribe could sure buy a lot of ‘evidence’ for the prosecutor.”

I think we’re on solid ground so far, right? Let’s move on.

Step #2: Suppose we’re dealing with the same case: a government prosecutor wants to convict Jim Smith of manslaughter for driving home drunk from the bar. But now, the prosecutor approaches the witness from the bar and offers to reduce the guy’s tax bill by a total of $50,000, in exchange for his testimony against Jim Smith. (Assume the man is a lawyer and his wife is a surgeon, and they file jointly, so that they actually would owe the IRS more than $50,000 in total tax liability that year without the offer.) Does this sound like an acceptable practice?

I think most people, after going through the process of Step #1, would conclude that Step #2 is also totally unjustified, and if anything is even worse. That’s because I never specified whether the $50,000 payment in Step #1 would be taxable income or not. If it were, then the net payment to the witness would only be some fraction of that amount, say $40,000, in Step #1. But a tax credit of $50,000 would make the witness (and his wife) exactly that much wealthier if he takes the deal. For all the reasons that Step #1 is horrible, Step #2 is at least as bad.

Step #3: Suppose instead that the prosecutor approaches the witness and threatens to increase the man’s total tax bill that year by $50,000, unless he agrees to testify against Jim Smith.  Does this sound like an acceptable practice?

This one should be a no-brainer. This is far, far worse than Step #2. After all, in the first two scenarios, the witness could simply walk away if he didn’t want to testify against Jim Smith; the prosecutor was merely offering the guy something extra. But now in Step #3, the prosecutor is going to hurt the witness–very significantly–unless the witness gives the desired testimony, which will help the prosecutor secure a conviction against poor Jim Smith. Seems extremely unfair, and not at all conducive to obtaining accurate testimony, right?

Step #4: Now the prosecutor is really playing hardball. As before, he wants the witness from the bar to testify against Smith. But this time, the prosecutor tells the witness, “Unless you testify against Smith like I want, we’re going to play a little game. I’m going to flip this quarter. If it comes up heads, you’re free to go. But if it comes up tails, then I throw YOU in prison for 20 years.” Does this sound like an acceptable practice?

I sure hope we can all agree that Step #4 is even more horrifying than Step #3. With such a threat backing him up, the prosecutor will be able to get just about anybody to testify against Jim Smith, because nobody wants to risk that 50% chance of going to prison for 20 years.

Giving the prosecutor the power to make such threats against people is clearly wrong, but let’s think about WHY. It’s not simply that it would be unfair to the witness. It would also be grossly unfair TO SMITH. The prosecutor will be able to get someone to testify against Smith, when that witness might be lying and just saying whatever the prosecutor wants to hear. If the point of the legal system is to send guilty people to jail, and let innocent people go free, then you definitely don’t want the State’s prosecutor walking around with the power to threaten witnesses with 20-year prison sentences if they don’t testify against a defendant.

Step #5: This step is actually the same as #4, but I’m going to give you a crucial piece of information: All along, you probably thought that the witness was a different person, but actually the whole time it was Jim Smith himself. (Jim Smith was in the bar the whole time he was drinking, after all, and Jim Smith was an eyewitness to the whole tragic affair.) The prosecutor tells Jim Smith, “Unless you testify that Jim Smith is guilty of manslaughter, this case is going to trial, and there’s a good chance that you will be convicted of 2nd degree homicide and serve 20 years in prison. So I suggest you plead guilty to the lesser charge of manslaughter.”

Now that we’ve worked through Steps #1 – #4, I have to ask: Does this sound like an acceptable practice?


P.S. Just to be clear: Nothing in this post is criticizing the defendant who takes a plea bargain; he or she is placed in an awful predicament, which is part of the point. Rather, the post is showing why the government should stop this practice, because it gives them the power to get people to admit to crimes they didn’t even commit, in order to avoid a worse fate. If you can see why Steps #1 through #4 are clearly awful, then Step #5 must be awful as well. The reasoning doesn’t change just because the witness and Jim Smith happen to be the same person.

11 thoughts on “Offering “Plea Bargains” Is Actually a Horrible Government Practice

  • October 15, 2014 at 4:13 pm

    Innocent people may go to jail. Guilty people may get less of a sentence than they deserve. It corrupts the system from one end to the other. But the public will not support the trial system required otherwise. Or so I understand.

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  • September 8, 2014 at 8:07 am

    Doesn’t the offer of a plea bargain increase the defendant’s options? If it were not allowed, the defendant would be going to trial regardless, but with the offer of a plea bargain, he can now weigh two options against each other. Notice this makes step 4 and step 5 qualitatively different, at least from the defendant’s point of view. In step 5 the defendant has two options, in step 4 he doesn’t.

  • September 6, 2014 at 12:13 pm

    But you are leaving out a crucial piece of the puzzle.
    The juicy sides that come with the prosecutorial meal.
    I knew a guy when I was in college who worked on the tugboats on the Mississippi river three weeks of the month. The other week of the month he would party and then when he ran out of money he would break into ATM machines with a crowbar. He eventually got caught and was charged with the normal short list of crimes that would be associated with breaking into an ATM. In addition, the prosecutor charged him with every breaking and entry in the past six months in that parish and several muggings and even a robbery of a police car.
    The problem was that the ATM cracker was out of state on the tugboats when most of these crimes occurred. The prosecutor didn’t even care, he was stacking charges to attempt to get the most convictions he could out of this one person.
    I have no problem with stacking of charges when the culprit is probably guilty of the other crimes.
    I have a massive problem with stacking of charges that the culprit most emphatically did NOT do.
    Because the actual criminal who committed those other crimes is now free to continue his criminal career. The police stop trying to solve crimes when someone is charged with them.
    Criminals do not become gentler and more kind as they continue their careers. They develop new skills and modify their methods, usually developing more brutal and effective means of doing normal people harm.

  • September 6, 2014 at 3:51 am

    From a British perspective, you can only read this page and think. Wow, why would you want to move to the US? V why the UK has a small immigration problem.


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  • September 5, 2014 at 10:45 pm

    When a persecutor offers a defendant a plea bargain, it is admitting that the penalty offered is a sufficient punishment for whatever the persecutor claims the defendant did.

    If the defendant turns down the deal and goes to trial, the jury should be informed of any an all offers that were made to the defendant, and the defendant should not be in jeopardy of any greater penalty than that.


  • September 5, 2014 at 9:36 pm

    Wait, let’s go back and reexamine our feelings about Step #4 now. It turns out that the witness himself may have killed a pedestrian after a night of drinking. So now, instead of getting away scot free, there’s a chance he might end up being prosecuted for his crime after all. Oh, and the prosecutor is offering Jim the same deal in an effort to get Jim to testify against the witness. I find I’m not quite as disgusted as I was back when I thought the witness was just an innocent guy with information about a potential crime.

    In the end, Jim Smith (as well as the witness) needs to weigh his chance of having to pay a stiffer penalty vs his chance of paying a lighter penalty. He’s not necessarily in an “awful predicament” — suppose he is guilty of murder and now has a sure shot at getting a lesser penalty.

    I could still be convinced that plea bargaining is “horrible” but with this argument, I just think you’re trying a little too hard to be clever.

    • September 6, 2014 at 11:54 am

      But we do not know that anyone is guilty of anything.

      If the prosecutor had sufficient evidence to prove the case beyond a reasonable doubt there would be no need for a plea bargain.

      Further even if you assume most defendants are guiltly – despite the assurances of prosecutors to the contrary all or not.

      Plea Bargains are often a boon to both prosecutors and guilty defendents, but they are hell for the innocent.

      Worse still they actively encourage over charging.
      Threaten a guilty defendant with 20-life for a crime they did nto commit and you can often get them to plead to something closer to what they did. This would be reasonable except that for a threat to be meaningful it must be enforced. That means prosecutors who over charge must try cases that they over charged, and quite frequently succeed at getting convictions.

      Sending someone to jail for a long long time for a crime they did not commit is immoral – even if that person did commit a lessor crime

      • September 6, 2014 at 5:22 pm

        Well I’m not saying plea bargains are good or bad, I’m just saying Murphy’s “argument” here is gimmicky and doesn’t quite stand up to logic. We are meant to be incensed when shown a prosecutor who would threaten to throw an innocent man in jail while pursuing the conviction of another. That disgust is supposed to carry over into step 5 when we learn the witness and Jim are the same person. Therefore, says Murphy, we should be disgusted at the practice of plea bargaining.

        But at that point, step 4 becomes a different story entirely. It becomes the story of a prosecutor who wishes to convict 2 men, both of which he believes could testify against the other and get him a conviction. We see this story all the time – two people are charged with a crime & each one is individually offered leniency if he testifies against the other. Where’s Murphy’s outrage over this scenario?

        Innocent people are charged, and sometimes convicted of crimes. But our outrage over this fact has little to no bearing on the acceptability of the practice of plea bargaining, except to say that the more likely it is for an innocent to be wrongly convicted, the more abhorrent becomes the practice of plea bargaining. If we were able to ensure that no one could ever be convicted of a crime greater than they actually committed, plea bargaining would become an innocuous practice wherein the accused has the option to plea to a lesser charge in order to save everyone the time and expense of a trial.

        In other words, we should be more concerned with preventing innocents from being convicted. Put a stop to that, and the threat of an over-conviction that comes with a plea bargain is neutered.

        Again, I’m not saying plea bargaining is good. I’m just saying we shouldn’t go around thinking we scored a slam dunk with this particular argument, because it’s just not convincing.

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