I got quite a bit of lively feedback on my last post, where I made the case that the common U.S. practice of prosecutors securing convictions through “plea bargains” is an abuse of power that perverts justice. In the present article, I’ll review my main points and answer some objections.
In my original post, I walked through a hypothetical scenario in which the prosecutor wants to convict a defendant of a crime. The prosecutor would like a witness to testify against the defendant, since this would strengthen the prosecutor’s case. I asked, would it be acceptable for the prosecutor to simply have the government write a check for $50,000 to the witness, to openly buy the testimony?
I hope everyone sees why that would be outrageous. It would clearly invite tainted evidence against defendants, if government prosecutors had the option of paying huge sums of money in exchange for testimony.
After establishing this baseline result, I kept tweaking the method that the prosecutor would use to elicit the desired testimony against the defendant. For example, instead of offering a check for $50,000, what if the State reduced the witness’s tax liability to the IRS by $50,000? That too would be outrageous, for the same reason. Then, what if the State threatened to increase the witness’s tax liability by $50,000, unless he testified against the defendant? Again, that would be a monstrous miscarriage of justice, not merely to the witness, but to the defendant. The reason is that the witness is likely to tell the government prosecutor whatever he wants to hear, in order to avoid a $50,000 penalty.
Finally, it would likewise be awful if the prosecutor said to a witness, “Unless you testify against the defendant like I want, I’ll throw YOU in prison for 20 years.” To repeat, this would not merely be unfair to the witness, but also to the defendant. The point of a trial is to have evidence presented to help the jury decide on the guilt or innocence of the defendant. If the prosecutor can make very serious threats against witnesses if they don’t cooperate, he can seriously distort the evidence that the jury ends up hearing, and thus makes it more likely that an innocent person will be falsely convicted.
If you’ve kept with me this far, then notice we’ve already ruled out using plea bargains if part of the deal allows the government to obtain testimony against others. For example, when government officials (whether local police, FBI, DEA, etc.) capture some low-level henchman in a major crime operation, and scare the crap out of the person to get him to cooperate (by wearing a wire, testifying in court, and so on), this corrupts justice. The point is NOT, “These threats are unfair to the low-level henchman.” Rather, the point is that these tactics are unfair to the “big fish” who are going to be put on trial with evidence against them produced through coercion.
Now at this point, some people will object and say, “But Murphy, sometimes the government needs to use these tools to put serious criminals behind bars!” Yet hang on. If we’re admitting that the government needs to threaten witnesses in order to get a conviction, then the government’s case must not be that strong. If we’re going to just trust the judgment of DAs and police operating behind closed doors in interrogation rooms–naively hoping that they will only apply pressure “to the bad guys”–then let’s dispense with the mockery of a trial altogether. We’ll just let the police and prosecutors inform us who the criminals are, and we’ll throw them in cages accordingly.
On the other hand, if we’re actually going to take it seriously when we say our society is based on the rule of law, that there is a presumption of innocence, and that people only go to prison when they have been proven guilty beyond a reasonable doubt in a fair trial…then you can’t give prosecutors the power to coerce testimony out of people.
Thus far, I think I’m on pretty solid ground: I’ve established that it’s grossly unfair if the State prosecutor uses the “carrot” of reduced charges to get somebody–even a presumed criminal–to testify against someone else. But what about the DA offering a deal to someone who pleads guilty to a lesser charge, in order to avoid facing trial on a more serious charge? This is the essence of a plea bargain, which concerns the defendant him or herself.
Some critics thought that here, I had clearly overstepped. After all, if the State has the power to send someone to prison for 20 years, and instead the prosecutor offers a deal that involves only 1 year, shouldn’t libertarians at least think this is better than the alternative? Don’t plea bargains minimize the coercion against individuals? As one critic put it, who is the “victim” here? How does a defendant lose by being offered a deal that he has the right to refuse?
Although superficially plausible, this way of framing the issue might be misleading. Look, by the same token I can describe it like this: I’m not suggesting that the government remove the ability of defendants to accept plea bargains. Rather, I’m suggesting that the government take away the option from prosecutors of offering them.
Consider: If you asked all of the nation’s District Attorneys, “Do you think it would be good or bad if the Supreme Court suddenly declared that all plea bargains were unconstitutional and had to stop, going forward?” I bet the overwhelming majority of them would say it would be horrible. They would explain that plea bargains allow for a much more rapid rate of conviction than the bloated and backlogged trial system would allow. Why, without the ability to threaten a defendant with all sorts of charges if he fights, but compromise and let him plead guilty to just a few of the charges, then prosecutors would only be able to convict a much smaller number of defendants each year.
When I frame it this way, how does the libertarian feel? To return to my critic’s excellent question, when the DA offers Jim Smith a plea bargain, the “victims” include all the other defendants who will now be harassed by that same DA, because he can be more efficient with his time.
It might clarify the discussion to note that many radical libertarians understandably don’t think the State serves any socially useful function when it comes to law enforcement. For this reason, ironically, it’s easier for me to get “regular Americans” to agree with me that plea bargains are a travesty. This is because “regular Americans” actually think that the government prosecutor should charge defendants with the crimes that they actually committed. So for example, if a guy robs 10 convenience stores with a sawed-off shotgun, “regular Americans” would want him to face trial on charges of armed robbery. They wouldn’t want the prosecutor to coach the defendant, “I don’t want to use up my time and the government’s scarce resources taking you to trial and convicting you of armed robbery, so instead how about you plead guilty to these lesser gun charges and you’ll do only half the time.”
As these reflections illustrate, part of the problem with plea bargaining is that it gives the State prosecutors too much discretion over which crimes they will punish and which they will ignore. The fundamental flaw is with the system itself, in which the State acts as one side in a criminal case, such as “the State of New York versus Jim Smith.” Of course this is a fiction; the government prosecutor most certainly does not represent “the people.”
In conclusion, government prosecutors should not be given the option of offering plea bargains. Proponents view them as a “gift” given to defendants, when in fact they are a threat of coercion: Admit you did this lesser crime or else. No legal system should allow prosecutors to routinely exact testimony under coercion, including “confessions” that may not even be accurate.