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Pleading With Satan

By       Message WILLIAM FISHER     Permalink
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William Fisher

President Obama is fond of waxing eloquent about "the majesty of the rule of law." A prosecutor reminds us that we're the only country in the world where a defendant's innocence is defended with at least as much passion as his guilt is attacked. A judge rolls out all his Sunday adjectives to extol the blessings of the jury system.

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This is, of course, rhetoric, and talk is cheap. Bottom Line: It's not true. Or it's only partly true. Or it's true only a tiny fraction of the time. Whatever.

But when I hear pronouncements like these, I am invariably reminded of some of the tawdry practices that threaten to shatter our criminal justice system.

Tim Lynch, who runs the Cato Institute's Criminal Justice portfolio, has written an article he calls "The Devil's Bargain: How Plea Agreements, Never Contemplated by the Framers, Undermine Justice." The article appeared in the July 2011 issue of Reason.

Lynch writes that the point of the article is that" most Americans are under the mistaken impression that when the government accuses someone of a crime, the case typically proceeds to trial, where a jury of laypeople hears arguments from the prosecution and the defense, then deliberates over the evidence before deciding on the defendant's guilt or innocence."

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Well, according to Tim Lynch, me, and just about everyone associated with the criminal justice system except prosecutors and bookkeepers, this image of American justice is "wildly off the mark," as Tim puts it,

He says, "Criminal cases rarely go to trial, because about 95 percent are resolved by plea bargains. In a plea bargain, the prosecutor usually offers a reduced prison sentence if the

defendant agrees to waive his right to a jury trial and admit guilt in a summary proceeding before a judge."

This procedure was not contemplated by the Framers. The Constitution simply says, "the Trial of all Crimes, except in Cases of Impeachment; shall be by Jury."

So it's not as if one of our storied forefathers corralled his colleagues and said, Hey, Colleagues, let's come up with a system that's better and cheaper than juries and would also relieve any doubt about guilt or innocence and, that "would replace jury trials with a supposedly superior system of charge-and-sentence bargaining," as Tim Lynch puts it.

Tim Lynch likens the growth of the plea deal to the growth of government in general. "Plea bargaining slowly crept into and eventually grew to dominate the system," he says.


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He goes on: "From the government's perspective, plea bargaining has two advantages. First, its less expensive and time-consuming than jury trials, which means prosecutors can haul more people into court and legislators can add more offenses to the criminal code.

"Second, by cutting the jury out of the picture, prosecutors and

judges acquire more influence over case outcomes.' Once a defendant pleads guilty as part of a plea deal, he's guilty. No one has to sweat it out while the Law and Order-type jury comes to its decision."

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William Fisher has managed economic development programs in the Middle East and elsewhere for the US State Department and the US Agency for International Development. He served in the international affairs area in the Kennedy Administration and now (more...)

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