The Fifth Amendment and the Fallacy of Plea Bargains

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger."

Before we continue let us define one legal word to make this amendment even clearer. Presentment: "Declaration or document issued by a grand jury that either makes a neutral report or notes misdeeds by officials charged with specified public duties. It ordinarily does not include a formal charge of crime. A presentment differs from an indictment." - definition courtesy Belluck & Fox's legal glossary.

So how did we come to this system of plea bargaining? Plea bargains by definition mean that the person in question does not stand trial before a jury of their peers. Well, it comes back to what we talked about last time, which is the establishment of laws by the judicial rather than the legislative branch. In 1971, the U.S. Supreme Court case Santobello v. New York, which is almost undoubtedly an example of just the kind of problems this system can cause, the U.S. Supreme Court upheld New York's decision.

They said, "This record represents another example of an unfortunate lapse in orderly prosecutorial procedures, in part, no doubt, because of the enormous increase in the workload of the often understaffed prosecutor's offices. The heavy workload may well explain these episodes, but it does not excuse them. The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called 'plea bargaining,' is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities."

The key phrase in that decision is "properly administered," but who can deny that plea bargains are now part of a system of abuse. Is a violent offender an less deserving of jail time simply because the system is overloaded? The crime he has committed is the same, and the statutes that dictate the sentencing of that crime are the same. Because the person is rushed through the system, we cheapen the value of the person or the community that has, or the people that have suffered because of their crime. We also cheapen our justice system, and devalue the impact of a crime upon the perpetrator.

How can we be expected to discourage crime if a crime that should earn a person three to five years of jail time, is plea bargained down to a lesser count that only earns the person between eighteen months and two years? There are 193 countries according to the U.S. State Department, but the number varies between 192 and 194 depending on whether places like the Vatican are counted as individual nations. According to Nationmaster the United States ranks 24th in the number of murders per capita, worse than almost any other western nation (though Poland ranks even higher than we do, as do several members of the former Soviet block). To put than in context though, France ranks #40, Great Britain and the UK #46, Ireland #55, and Japan way down at #60. (1)

This is due in a large part to the fact that in the U.S. the punishment does not fit the crime. Part of the reason that those two things are out of sync is because of plea bargaining. Murder in the first degree, described by the California penal code 189 as "deliberate and premeditative," is punishable by 25 years to life. If people were actually sentenced to a life sentence for the premeditated murder of another person this might be acceptable, but 25 years for the life of another human being? If a twenty year old is murdered in there prime, they could live for another 50, 60, even 70 years, but we only think their life is worth a quarter of that time?

I would like to see some statistics on how many murder 1 cases are plea bargained down to even less than that, to murder in the second degree (which here in California can mean a sentence of as few as 15 years). If the district attorney thinks that a person has truely purposely, and with planning, taken the life of another person, shouldn't they seek the full sentence available. And if they don't think they have enough evidence to convict the person, shouldn't they merely lower the charge, (rather than making a deal with a supposed criminal) and then seek the maximum sentence available for that? If they are pleaing because they are not sure they have enough evidence to convict before a jury, while are the bringing charges?

As the Supreme Court statement above saying that it is acceptable to push people through the system because it is conjested. And by that measure, are we as U.S. citizens content to allow criminals walk free after minimal punishment because the system is underfunded and understaffed? Clearly one wrong, cannot be corrected until the other is.

If we are going to raise our safety levels to be on an equal level with the rest of the world we have to correct the flaws in our justice system so it's more effective. One of the first and most essential steps towards this seems to be to illiminate plea bargaining, but realistically, that cannot be the first step because many other measures have to go into place so that the plea bargaining system can be disabled.

First, the system has to be properly funded. All of it. The prisons need to be properly funded so that there are places to put the prisoners if they're convicted, and so that there are more gaurds to guard said prisons. The prison system should be partially self-funding. Assuming they are not joing assets, the courts should be able to seize a prisoner's assets to help pay the costs of keeping him fed and clothed while he's in the prison system. Each sentence should be accompanied by a monetary ammount to be deducted, if available, from the person's bank account. Then, instead of making prison a vacation where the prisoners can read (not that most of them spend their time that way), or fight in the yard (which is more common behavior). All prisoners should be entered into a prison work program (preferrably not one where they have to be given anything sharp) where they produce something valuable (food, etc.) that can be sold to help fund the prison system.

The other thing that will help sort out the financial crisis, is the reevaluation of what qualifies someone for jail time. Drug trafficing yes, drug possession... well maybe not, especially not for low-level drugs like pot. Jail time for minor offenses eats up the system's time and money. It is more practical, on issues like minor theft, or drug possesion, to punish the person financially. More over, if a person looses a thousand or two thousand dollars every time they are caught with an illicit substance, pretty soon they're going to have trouble funding their drug habits. (Mind you even there are even better ways to handle the issue of drug possession, but we'll get to the financial practicalities of legalizing drugs in another blog.) If someone commits theft, they damage the person they've stolen from financially, so what could be more appropriate than punishing them financially in turn, but with a fine twice the value of what they've stollen. Cases of minor crimes, should not result in jail time unless they are repeat offenders.

Beyond that though, we have to fund the court system to deal with their increased case load. We need to hold an election to choose additional judges, and pour money into more facilities, courts, offices, etc.

Once properly funded and expanded so that it is not constantly trying to release prisoners for lack of supplies and personel, or constantly accepting people who don't really need to be in jail, we can begin to tackle to the problem of plea bargaining. Personally, I think the easiest way to do this would to be to make plea bargaining illegal, once the system is equipped to handle the demands. People who are innocent are then not pressured into accepting jail time, and people who are guilty, don't get to reduce their sentences simply for hurrying things along.

We can protect civil rights and society all in one fell swoop.