Last 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.
The 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:
Abu 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.
Twenty 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.
Naturally, the District Attorney would like to finally pin something on Sonny. Consider the following scenarios:
- 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.
- 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.
- 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.
- 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.
One 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.
The 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.
In 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.
The 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.
To 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.
The 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.
This 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?
Plea 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 justice.
July 19, 2000
Bob Murphy is a graduate student in New York City.
