The Crime Known as Plea Bargaining

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week, President Clinton granted clemency to four women who had been
convicted on drug conspiracy charges. Knowing their "crimes"
had never hurt anyone, these women refused to cooperate with authorities,
and thus received the harsh mandatory sentences required by this
nation's futile War on Drugs. Their husbands and boyfriends, in
contrast, pled guilty in order to receive more lenient treatment.

situation of these women is all too common – many
more heart-rending tales are documented
. But we should not be
misled into thinking that these are examples where prosecutors have
simply "gone too far." No, the very nature of plea bargaining
violates all standards of decency, as the following tale will illustrate:

runs a convenience store. Late one night, a masked white male enters
his store and robs him at gunpoint. The criminal then jumps into
a waiting car and is sped away. Abu calls the police and describes
the incident.

minutes later, a car matching the vague description given by Abu
is pulled over. Inside are two males: Donnie, the driver, is a young
punk who has had a few minor encounters with the law. The passenger,
Sonny, is in his early thirties, and is a known mafia underboss
who has thus far eluded conviction for any serious offense. Between
the two of them, Donnie and Sonny hold several hundred dollars,
roughly the amount stolen from Abu.

the District Attorney would like to finally pin something on Sonny.
Consider the following scenarios:

  1. The
    DA offers $50,000 cash to Abu if he'll testify that Sonny is the
    man who robbed him. We can all agree that would be bad, right?
    Before proceeding, though, make sure you convince yourself exactly
    why it is bad.
  2. The
    DA works out a deal with the IRS, and offers Abu a $50,000 reduction
    in his tax bill, in exchange for implicating Sonny. This is worse
    than (A), since the bribe under (A) would be taxed, whereas this
    scenario actually makes Abu $50,000 richer.
  3. The
    DA works out a deal with the IRS, and tells Abu that if he doesn't
    testify against Sonny, then his tax bill will be increased
    by $50,000. Now this is much, much worse than (B), since the
    less money one has, the more valuable is a marginal dollar. (This
    is why most people of modest means wouldn't wager $50,000 on the
    outcome of a coin toss.) Under (B), Abu can testify to become
    $50,000 richer, whereas under (C) he needs to testify in
    order to avoid being made $50,000 poorer.
  4. The
    DA tells Abu that if he doesn't testify against Sonny, Abu will
    be imprisoned for two years. Clearly this is far worse than (C),
    since Abu would presumably be much more willing to sacrifice $50,000
    than two years of his freedom.

would think that if the District Attorney were to engage in any
one of the above strategies, the public would be outraged and he
would summarily be dismissed. But this is wrong, since district
attorneys engage in strategy (D) all the time. They call
it "offering a plea bargain." Plea bargains are not similar,
nor merely analogous, to (D). They are identical, with the
exception that the threats would be made to Donnie rather than Abu.

argument presented above will certainly not resonate with the staunch
proponent of law and order. He will object to the sympathy it accords
to Sonny, who is after all a known scumbag. Surely the story above
and plea bargaining as it is practiced in the real world are very
different: Abu is an innocent victim, whereas Donnie deserves
his punishment. If the DA chooses to make a gift to Donnie by reducing
the charge against him, that only makes Donnie better off.

response to this objection, it must be pointed out that Sonny was
a "known scumbag" under scenarios (A) through (D) as well,
yet no one doubts that these would constitute grave injustices.
Further, we don't know that Donnie "deserves" his threatened
jail time – he might be completely innocent (of this particular crime),
or maybe he was the gunman and only later did he and Sonny
switch seats in the car. In any case, the objection entirely misses
the point: We do not claim that Donnie is harmed by his plea
bargain, but rather that it is grossly unfair to Sonny. Scenario
(A) does not harm Abu in any way, but it is unjust because it increases
the likelihood that Sonny will be falsely convicted. Most citizens
agree that Abu "deserved" his original tax bill, yet they
would still agree that scenario (B) is an indefensible violation
of Sonny's right to a fair trial.

skeptic has further reservations. Plea bargaining is an indispensable
tool for fighting crime, and has been standard practice for many
years. It's true that some innocent people may have been convicted,
but surely plea bargaining must be given credit for keeping criminals
off the streets.

counter this objection, we only note that if DAs were allowed to
engage in practices (A) through (D) for a decade, at the end of
this period they would no doubt claim that these techniques
were indispensable for law enforcement. They could quite rightfully
point out that were the practices to be abolished, the number of
erroneous acquittals would increase. Also keep in mind that the
boon from nabbing the "big fish" must be offset by the
number of stool pigeons who are consequently released earlier. Finally,
for every false conviction due to plea bargaining, there exists
a criminal on the streets whom the police no longer care about.

defender of the status quo continues. No system is perfect; there
will occasionally be abuses. But the average police officer is not
the fascist thug that libertarian types would have us believe. Cops
don't haul in random people and accuse them of crimes. Before someone
is offered a plea bargain, the police are quite confident they've
got their man.

reasonable objection shows little appreciation for our system of
justice. If we are going to allow fabricated testimony to aid in
the conviction of those whom the police deem guilty, why go through
the mockery of a trial at all? Why not simply grant the police the
authority to arrest and convict whomever they decide is guilty?

bargaining has become a widespread practice, and indeed is a "necessary"
tool in the War on victimless crimes; since no one is harmed by
the drug dealer or prostitute, the police must be given some means
to garner "evidence" against them. Yet if the public could
see plea bargaining for what it really is – bribed testimony – they
would immediately demand an end to this monstrous miscarriage of

19, 2000

Murphy is a graduate student in New York City.

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