Abolish the Plea Deal

Compare our government today to our government a couple of hundred years ago, and you might conclude that its growth was the inevitable result of the growth of the nation. But that can only be partly true: There are 60 times as many Americans today as at the turn of the 19th century, but the federal government employs closer to 600 times as many people. Somewhere, this explanation is off by an order of magnitude.

The extra growth is the result of how government operates: Government creates a new law. The law creates unintended consequences. Rather than repeal the law, the government creates another new law to deal with the unintended consequences. New laws create their own unintended consequences, and so forth. And voila: Exponential growth of the law, and of the law’s administrators. We are governed by the law of unintended consequences.

Perhaps the most dramatic example, the pernicious effects of which shape our nation to this day, is Prohibition. The problem: American workingmen were drinking away their salaries, and as a result were abusing and impoverishing their families. A thoughtful approach would have encouraged the creation of local clubs and other saloon alternatives. Instead, influenced chiefly by the Woman’s Christian Temperance Union, the government had the brilliant inspiration that drinking would go away if alcohol did. The solution: Ban alcohol.

During the ban, wealthy politicians continued to maintain their own drinks cabinets, stocked with fancy foreign labels which they served their guests at cocktail parties. Working men poisoned themselves with bathtub gin and got arrested for it. FDR is only the most prominent example of a drinks-cabinet politician, but at least he repealed prohibition when he became president. The unintended consequences were much worse than bathtub gin, and they didn’t go away when the ban did.

Prohibition made organized crime a national phenomenon. The murder rate increased 50 percent. Drug addiction increased 45 percent. (In reality, both rates increased vastly more, localized in the biggest cities.) America’s 200 distilleries, 1,000 breweries, and 170,000 liquor stores were either put out of business, or began working with the mafia. This in turn led to a massive expansion of federal law enforcement.

Federal prosecutions increased eightfold. This created a huge backlog of cases going to trial. For this unintended consequence, the government had a predictably governmental solution: Rather than reducing crime, they decided to find a way to put people in prison without a trial. And the plea deal was born.

All of this was a result of the government’s thinking it knew how to get people to drink less. And it was right—people did drink less. But the collateral damage to our society was immense and lasting. The government has far less power to change peoples’ behavior than it has to change how people are treated for that behavior. This is why most regulation is inefficient and destructive, and unleashes a cascade of consequences.

The plea deal in particular is very far from the wings of the Prohibition butterfly, but it is a massively powerful tool of oppression, and the government wields it with the flair of an organized crime syndicate.

Plea deals have become so prevalent today that only one felony case in 20 is actually tried in court. This means Americans are no longer effectively protected by their Constitutional right to be tried by a jury of their peers: Rather, they are indicted, tried, and sentenced by the government.

Plea deals may seem like a good idea—they offer the accused a lighter sentence than he might receive at trial. But that rests on the fundamental, and fundamentally un-American, assumption that the accused is guilty and that a jury would convict him. This in turn creates an incentive for prosecutors to bully people into accepting plea deals by heaping charges on them by the truckload. The numerous anecdotes of innocent people admitting to a minor crime to escape the government’s unlimited prosecutorial resources make depressing reading.

American teachers in elementary and high schools do a bad job of explaining almost everything, and the Constitution is one of the worst-taught subjects. Certainly no teacher ever successfully explained to me or my fellow students why the Fifth Amendment was important, and I suspect few of them have considered the question themselves. As a child, the concept seemed strange to me—I watched footage of an accused gangster testifying in front of Congress and “respectfully declining” to answer questions because the answers might incriminate him. Well then, if he pleads the Fifth, don’t we know this guy is a crook?

Of course we do, but the Fifth Amendment was designed to protect the innocent even at the cost of shielding the guilty. Our philosophy of justice is heavily biased towards protecting the innocent, and that is as it should be. The Fifth Amendment exists so that there is no incentive for law enforcement or prosecutors to pressure an accused person into confessing. A confession exacted by pressure cannot be used in court. No one can be made to confess, and therefore no one can be tortured, threatened, or extorted by the government. This is a brilliant and movingly humane concept.

Plea deals give the government a way to chuck that entire concept into the garbage can. The constitutionality of plea deals was finally established (after being in use for decades) by a 1970 Supreme Court ruling which stated that such deals were acceptable so long as they were not “induced by threats.” A child could see the logical impossibility there: The promise of a reduced sentence offers no inducement whatsoever unless it is coupled with the threat of a heavier sentence if no deal is reached. The entire framework is a fraud and a sham.

The plea deal is a perversion—justice in reverse: It allows the genuinely guilty to escape judgment by their peers, who might condemn them for graver crimes. It meanwhile forces the innocent to accept a taint of guilt in exchange for limiting the scope and duration of the government’s persecution. It is, in other words, a threat that works only against the innocent. The Soviets couldn’t have come up with anything better. (It should be noted that the Soviet legal code, like modern Chinese law, forbade the use of torture to exact a confession, but, like the modern Chinese, they simply ignored that provision and continued on their merry way. A love of legal forms unconnected with a sense of humanity isn’t worth much.)

One need only imagine the pressures being applied by federal law enforcement and prosecutors to those now being held in solitary confinement for their January 6 tour of the Capitol. The government clearly is signaling it will make an example of them. An almost unbelievable array of charges can be preferred, balanced against a relatively light sentence in exchange for a confession that backs up the government’s storyline. “Sign this piece of paper and we’ll go easy on you . . . ”

The government may never understand the principle which their own behavior so amply demonstrates: That incentives for abuse will create abuse. Various left-leaning groups and publications, including the ACLU and The Atlantic, have drawn attention to the abuse of the plea deal. But in response, they propose more regulation, essentially a walk further down the unending road of unintended consequences.

The real solution is to abolish the plea deal—to insist that no one can be pressured into giving up his right to a speedy and fair trial. To be heard and judged by one’s peers is not a guarantee of justice, but it is far and away the closest thing we have. It protects us against both unjust enforcement of the law, and unjust laws themselves. It is a precious gift to freedom.

I agree. In California where I practice, Prop 115 took power from judges and gave it to the DAs. It’s really an outrage that in CA we have court proceedings where the introduction of hearsay evidence is allowed. After Prop 115, all the DA has to do is put a cop on the stand, have him/her testify that “Mrs. X said this, and Mr. Y said that” and that’s that. Also in CA you have this thing called Marci’s law that prevents defense counsel from contacting alleged victims of sex abuse and so on. All of these laws served to take power from the courts and from the defense and passed it to the DA. Then the DA can increase charges to life in prison based on a bunch of crap and then force the defendant to take a plea bargain. The thing to do in my opinion is to legalize or at least decriminalize drugs, prostitution, gambling so we get fewer of those prosecutions that really do clog up the justice system and then also return power to judges to cut through prosecutorial misconduct.

With drugs, gambling, and prostitution, all I really care about is keeping it off the streets and away from my home and kids, and insulating my wallet from the consequences of other people’s bad life decisions. Totally with you on re-criminalizing loitering and vagrancy, and I’d add re-institutionalizing the seriously mentally ill. Working in downtown Houston, which has multiple tent cities under the surrounding overpasses, I’m highly attuned to the “homelessness” problem.

As for plea bargains, I’ve never practiced enough criminal law to have a very informed opinion on it, although the arguments in the article resonate with me. However, whatever reasons there are for plea bargains, a lack of judicial resources should not be one of them. If you’re going to have society governed by the rule of law, then how can there be any higher priority for resources than a functioning judiciary?

To you and the other very informed opinions that counter the article— an honest question:

Would there be a deterrent factor in criminals seeing their “peers” actually convicted for their actual crimes? (and serving actual sentences?)

Wow. I am so sorry. Obviously a felony Murder where everyone connected without regard to actual participation gets hit with it. Life without opportunity of Parole should not be used like it sometimes is.

My prayers for you and your son. Also for the victim. 22 years in prison is a lifetime.

This situation is why it’s critical to teach our kids the danger of being in the wrong place at the wrong time with the wrong person.

It seems to me this is an argument that we must change the rules of the game because too many people are cheating. While it is a problem, the focus is wrong. We, as a society, need to start admitting that our culture now rewards cheaters and manipulators and liars so long as they entertain us, use their ill-gotten power to benefit us, or win the game a whatever cost. Instead of changing the games, we need to improve the quality of the game players, starting with ourselves.

The challenge is that it requires all of us to look in the mirror and confront ourselves first. Do we lie, cheat, whine, pressure, and manipulate others to get our way? Do we demand the easy solutions to problems and look for someone else to blame for own faults? Until we do this, the best we can do is whack at the hydra heads as they pop up while being crushed by the rotting body politic.

In Virginia, the jury sets the punishment, including the length of the sentence, not the Court. The judge can overrule the jury, but seldom does. You would think that juries are much, much harsher with unsympathetic defendants that a judge would be, and you’d be right. You’d also think that a criminal would consider that before deciding to commit a crime, but you would be wrong. In my experience, many criminals do not think clearly that far ahead, or they commit their crimes while drunk or on drugs, or in the heat of passion, or, sometimes, they just don’t care.

I am sorry for you and yours. I cannot imagine that pain. I wasn’t trying to be self righteous. I hope it didn’t come across that way. I think of all the stupid things I have done and can only guess with my now adult children that could have gone sideways and resulted in great pain and consequences. It’s a sobering reminder.

If it were me, the prosecution better hope that there’s a life sentence available for that crime. Otherwise, I’d end up freed, with a grudge and a will to follow through on it.

A jury trial for each crime may have worked when the country was founded, but there are so many more crimes now.

For example there are 1.5 million drug offenses and 1.1 million DUIs per year that need to be tried. Those simply didn’t exist in 1776.

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