Posted on 04/14/2021 8:02:14 AM PDT by Heartlander
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 FDR is only the most prominent example of a drinks-cabinet politician, but at least he repealed prohibition when he became president.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’m a criminal defense attorney. If we got rid of the plea bargain then the entire system would grind to a halt. Citizens would spend most of their time sitting on juries. In California (where I am) the most productive reform would be to repeal Prop 115, which basically gutted the institution of the preliminary hearing in felony cases. Prop 115 allowed the introduction of hearsay evidence into preliminary hearings. It was an enormous power grab by the DAs. The best approach to my mind is to re-empower judges to throw out overcharged crimes by repealing Prop 115.
That’s a great essay!
“The real solution is to abolish the plea deal...”
It’s a bad idea.
First, without plea deals, the cost to the taxpayers who pay for the courts, the prosecutors and in many cases the defense teams would increase exponentially.
Second, courts would get so backed-up that defendant’s 6th Amendment rights would be violated.
Third, many other crimes, that would otherwise be solved from information obtained in plea deals, would never be solved.
Finally, the prosecutors would have no choice but to drop charges on most all defendants.
Without plea bargains, every case will have to be tried. That means you will need many more judges, many more courtrooms, many more prosecutors and support staff, and you will have much a greater delay in getting to trial. This means some cases are going to be dismissed by the prosecution because of scarce resources, or lack of available evidence or witnesses. Others will be dismissed by the court for unreasonable delay. Many cases will never be brought because the prosecutor’s office simply cannot handle the burden. Then too, trials, and especially jury trials are always a crap shoot, and the prosecution cannot be assured of winning every case, no matter how good it looks.
Speaking about his forty years defending criminal clients, he shocked a group of young lawyers by saying, "They're guilty. They're all guilty."
As a plaintiff’s attorney who generally makes more money settling cases than trying them, I’m still not so sure having citizens spending more time on juries would be a bad thing. And if there are so many criminal prosecutions that our courts can’t keep up with it, perhaps that’s a signal that we either have too many crimes or too many criminals, and that one of the problems with plea bargains is that they help sweep both problems under the rug.
Maybe I’m naive, but if plea deals are eliminated I think we can solve the problem of an overburdened court system by drastically reducing the size of the criminal codes and by imposing lengthy prison sentences to reduce recidivism.
LWOP Is actually death by incarceration.
Real lifers can get paroled after so many years, but LWOP can never get out.
How about a quick trial, and summary execution for violent crimes? I can cure the whole criminal justice system in just a few days: If we treat violent criminals as quickly and violently as they dealt their victims crime would evaporate .
Rob a store? on video? Yep, guilty, off to artic version of Rura Penthe....forever. NO appeals, no parole, just disappear.
Harm anyone? You get the same injury or pay for everything as long as victim needs it.
Kill someone?
Dead the next day after breakfast. Next!
Maybe that reflects another problem where too many things are criminalized?
I’d rather see them executed.
I have no problem spending more on courts. They serve one of the few truly essential government functions, and the money we spend on them is a drop in the bucket of federal, state, and local budgets. I think we can do with one less light rail to nowhere in each city to pay for sufficient courts and prosecutors to actually handle the public's business.
I'm undecided on plea bargains. But lack of resources should not be a reason for them. If we have too many criminal prosecutions for our courts to handle, the answer should be more courts or fewer prosecutions, not cutting corners with something as serious as this.
It was not illegal to drink it just to make it or import or sell it.
The problem is overcriminalization. There are so many criminal laws on the books that every single American living has probably committed some felony and didn't even know it.
Rather than getting rid of plea deals, get rid of criminal laws in area that the government has no business legislating in.
We don't need a specific felony offense for the theft of pine needles.
Indeed.
The plea deal means the prosecution and the defense have a whole lot less work to do which is more important to a lot of them than seeking justice.
I agree with you that we need to de-criminalize a lot of things. If I had my druthers I’d legalize (or at least de-criminalize) things like drugs, prostitution, and gambling. I’d re-criminalize loitering, living with no visible means of support, etc. Basically, give back to people the freedom to do with themselves as they wish but then impose upon them full responsibility for their actions.
My son is in LWOP by being a tagalong with a guy he shouldn't have been with and did nothing, but by association, guilty. ... for the last 22 years
What’s LWOP?
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