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Plea Bargaining Is Governmental Extortion

June 28, 2013 by  

Plea bargaining is the process whereby a prosecutor comes to an agreement with a defendant to resolve a criminal case. Roughly 90 percent of all criminal cases resolve through the process of a plea bargain. The plea bargain is a contract of sorts, and the terms of the agreement often may vary considerably from one case to another.

A plea bargain will always include the defendant’s pleading guilty to at least one crime. What varies is the crime pleaded to or the punishment imposed. For example, a plea bargain occurs when a defendant is charged with two separate crimes, and he pleads guilty to one in exchange for a dismissal of the other. A plea bargain also occurs if the prosecutor offers a specific punishment and the judge agrees to it in exchange for the defendant’s pleading guilty. There are many variables that affect plea bargaining; however, the common thread in all plea bargaining is that the government avoids the burden of a jury trial and the defendant gets, in theory, a more favorable resolution of his case.

At first glance, this may sound like a great idea — a win-win, right? I contend it is not. In practicality, what happens is that defendants may face criminal charges that there may be little evidence to support. This process is called “overcharging.” Overcharging works to threaten the defendant into accepting a plea bargain. The fear of criminal sanctions associated with overcharged allegations is a deterrent for individuals to exercise their right to a jury trial because of the uncertainty of the outcome.

It gets worse, though. Judges are responsible for sentencing and, generally speaking, they have wide discretion in how severely any given defendant is punished. However, it is illegal for a judge to punish someone for going to trial. In other words, if a person demands his right to a trial and he is convicted, the judge should not impose a more severe sentence after the trial than he would have imposed had the person pleaded guilty.

The issue then is: If a person could get the same sentence after a trial that he would get before trial, what incentive is there for him to give up his right to trial by pleading guilty? The answer, of course, is that there isn’t much incentive at all. So again, as a practical matter, many judges commonly impose more severe penalties after a trial to provide additional incentive to plead.

As support for this claim, I offer California Rule of Court 4.423(b)(2). This provision allows a judge to be more lenient in sentencing a defendant who, “… voluntarily acknowledged wrongdoing before arrest or at an early stage of the criminal process.” Obviously, a person who exercises his right to trial loses the benefit of this provision and a more severe sanction may be imposed.

So when does discovering truth and achieving justice occur within a system where defendants are being “threatened” by the executive and judicial branches of government to enter a plea and give up their right to a trial? Who knows? I contend the government’s primary goal is not justice but to get convictions. This goal is plainly stated in this quote from prosecutor Michael Mermel, “The taxpayers don’t pay us for intellectual curiosity. They pay us to get convictions.”

The truth is unless society takes proactive measures to eliminate plea bargaining, it is here to stay. In 2011, California introduced 725 new laws. I believe five to 10 of them were laws directed at criminalizing previously legal behavior. Each year, more and more laws are passed at the Federal, State, county and city levels. Across the United States, there are literally tens of thousands, if not hundreds of thousands, of criminal laws that the citizenry risks running afoul of. What is legal today may not be legal tomorrow. With the number of people being charged and the growing number of criminal laws available to charge us, our system would collapse if citizens actually exercised their right to a trial. The plea bargain has become an effective tool (as evidenced by the 90 percent statistic given above) in our government’s bag to nullify our rights, further its growth and keep the criminal cases moving.

The truth is that a citizenry with rights is a burden upon the government in achieving its agenda. The government most certainly fights to achieve its agenda, but are we fighting to protect our rights?

Know your rights. Stand for freedom.

–Nathan Wente

Originally published by the US~Observer.

Nathan Wente

is a former prosecutor turned defense attorney. While attending law school in California, Wente clerked in the San Bernardino County District Attorney's Office for 2 years. After graduation he moved to Northern California and began working as a Deputy District Attorney in Siskyou County. Wente was employed there for nearly 3 years before resigning his position to become a defense attorney. Wente’s primary motivation in switching from the role of a prosecutor to a defense attorney was, generally speaking, his disgust with Government operations and their refusal to respect civil rights. In short, it was Wente’s impression that Government's primary goal was to make arrests and get convictions, whatever the cost.

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