What If We Eliminated Plea Bargaining?

Scott Greenfield is complaining about people who propose simplistic solutions to the ills that infest the criminal justice system. This time it’s the Economist, and their solution is the ever-popular one of eliminating the problems of plea bargaining by eliminating plea bargaining. Scott’s not happy with that for the usual reason criminal defense lawyers aren’t happy with eliminating plea bargains:

Consider what life would look like without plea bargaining.  Every defendant would then have to be tried to be convicted, as there would be no incentive to cop out.  Every guilty defendant would then be subject to full freight sentencing, the price that no one in power really expects anyone to pay, which is what allows them to set the MSRP for crime in the stratosphere, tell the groundling during stump speeches about how they’ve saved them from rapists and give headline writers silly numbers for clickbait.

I have no disagreement with this. Criminal defendants would get hammered without the plea bargaining escape hatch. You would not want to be prosecuted for a crime after plea bargaining was eliminated. Nevertheless, Scott misses a point that may be worth discussing (or maybe not, but that never stops me) when he writes this:

The government would need 100 times the existing number of courtrooms, judges, clerks, court officers, prosecutors and jury pools. And public defenders would get stretched a wee bit thinner.  Even so, kids would sit in jail for years awaiting trial, turning that one year potential sentencing into three, until it was their turn in the well.

The government is not going it get what it wants. Increasing the case volume of the justice system 100-fold — or 20-fold if you use the 95% plea figure — is never going to happen. The government can’t afford the cost of holding trials for everyone they charge, and it sure as hell can’t afford the cost of operating prisons for all those people. (Instead of having 1% of our adult population in prison, we’d probably have to hire 1% of our population as guards for our vast prison empire.) If we somehow outlawed plea bargaining tomorrow, there’s no way the government at any level could afford to try and imprison everyone that gets arrested.

Advocates of eliminating plea bargains are counting on this. Without a larger budget, prosecutors would have to make some hard choices about who to prosecute and who to let walk. They’d have to focus their efforts on the people they most want to put in prison and let everyone else go. It seems likely to me that the net effect would be a reduction in aggregate prison time.

On the other hand, it would be devastating for Scott’s clients. The ones found guilty would be pounded into the ground by draconian sentences, much higher than the legislature intended, and these long sentences would be concentrated on a small group of people, which is arguably unfair. (Speculation about this group’s age, race, and gender characteristics are left as an exercise for the reader.)

The other big problem with eliminating plea bargaining is that lots of crimes would go unpunished. While it seems unlikely that every single one of the 95% who currently take plea bargains are guilty, it is probably even less likely that every single one of them is innocent. Many of them would go on to commit more crimes against the public. Eventually, they would be prosecuted and imprisoned, but in the meantime they could wreak havoc on the innocent. It seems likely that the result would be a lot more crime.

Finally, as a libertarian, I’d like to think that if the justice system could only prosecute a small fraction of the crimes it does today, it would abandon enforcement against consensual crimes and focus on crimes that present a real danger to the public. Somehow I doubt that would be the case.

The plea bargaining system could use some reform, but eliminating plea bargains altogether is an extreme measure that would imprison a lot of people for a very long time while allowing crime to run rampant. That doesn’t sound like it would be good for anybody.

4 Responses to What If We Eliminated Plea Bargaining?

  1. […] I can’t say I disagree.  I’m not sure I necessarily agree, though. As somebody who, when working as an assistant public defender, once overloaded the system to the point of bursting (by setting every case for trial and then filing an insane amount of speedy trial demands all at once… on a  Friday… late afternoon, of course), I have seen what happens when you force the system to operate outside its comfort zone. It wasn’t all bad, either.  Oddly, judges faced with having more work than they are capable of handling will put pressure on both prosecutors and defendants, which is certainly abnormal. Mark Draughn points out something I had not necessarily thought of, though. Perhaps eliminating plea bargaining would increase crime: […]

  2. Lynch mobs have an even higher prosecution success rate. I’m sure not all those lynched are guilty, but more undesirables are off the street. So if we eliminate lynch mobs we might be left with the relatively ineffective legal system provided by the ABA, at a much higher cost, with a bigger prison population, and more troublemakers. Can you imagine the injustice that will result?

    • I see what you’re saying, Cotton, but unlike plea bargains, the victims of lynchings don’t have the option of turning them down, nor can they, through the threat of turning down a lynching, bargain their way to a…um…less severe lynching.

      Keep in mind that under our current system, any criminal defendant can eliminate the plea bargain for his own case simply by refusing to accept it. That 95% of defendants take the bargain indicates that they consider it better than the alternative. That’s also where the lynching analogy breaks down.

      When we talk about eliminating plea bargains, we don’t just mean getting rid of them for people who don’t want them. We mean removing them as a choice, even for people who do want them. As a general rule, you rarely improve someone’s quality of life by reducing their choices.

      People who want to eliminate plea bargains are hoping that higher order effects — such as exhausting the budget for prosecutions — will produce a benefit for defendants, but it’s not clear that they will, and if they do, it’s not clear that the effect will be strong enough to overcome the detrimental effects of the loss of choice.

  3. Strife is the most effective force for change. I disagree entirely that it would not lead to positive change. Even just the threat of eliminating plea bargaining would likely solve the problem of prosecutorial misconduct on choosing what to charge defendants with.

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