Re: Plea bargains

1

a corrupt mechanism to deal with understaffing

That somewhat depends on your definition of "corrupt," but, otherwise, yeah, basically.


Posted by: widget | Link to this comment | 11- 3-14 12:53 PM
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Do any of the people who know this sort of thing want to explain Alford pleas? I understand saying "I claim I'm innocent but that I'd probably get convicted anyway," but not exactly how and why it works as part of the larger system.


Posted by: Thorn | Link to this comment | 11- 3-14 1:14 PM
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The reform suggested -- putting a recommendation for plea bargain in the hands of a magistrate who wouldn't handle the case at any later stage -- actually looks pretty reasonable to me, I say as someone with very little experience of criminal law.

Although my miniscule criminal law experience does include, a long time ago, pro bono representation of a guy who pleaded guilty despite my thinking he was probably innocent. My guy was an immigrant who had bought a used car very, but not absurdly, cheaply, from a seller who was also an immigrant from his home country. The seller was part of a huge stolen car ring. The evidence that my guy knew the car was stolen was (1) that he was from the same country as the seller; (2) the car was cheap; and (3) that there was a particular dent on the door characteristic of cars that have been broken into with a particular tool. He'd been in jail for six months or so, and if he pleaded they were going to let him out for time served, if he went to trial they were going to charge him with the whole car ring conspiracy, which was an astronomical monetary value and would have meant ten years. Even though I thought (from my perspective as a first year associate) he probably had a good shot at trial, 'good shot' wasn't good enough to risk ten years as opposed to being able to go home immediately.


Posted by: LizardBreath | Link to this comment | 11- 3-14 1:15 PM
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which was an astronomical monetary value and would have meant ten years
Long potential sentences probably encourage plea deals, don't they.


Posted by: Eggplant | Link to this comment | 11- 3-14 1:19 PM
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I understand the problem, but if it is the type of door dent I'm thinking of (key-hole punch), I'd have a very hard time believing he didn't know it was stolen either.


Posted by: Moby Hick | Link to this comment | 11- 3-14 1:23 PM
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2: Not really, and anyone who knows better should correct me. But my understanding of Alford pleas is that the rule used to be that you could not plead guilty without affirming your factual guilt of the matter charged, and if you denied guilt in front of the judge the plea bargain blew up and the judge wouldn't accept a guilty plea. Under Alford, I think you're allowed to claim factual innocence and say that you're taking the plea for strategic reasons.


Posted by: LizardBreath | Link to this comment | 11- 3-14 1:24 PM
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There was a much-praised-by-libertarians attempt a few years ago to characterize the combination of plea bargains and reduced sentences in exchange for testimony as a species of public corruption, which found exactly the same warm welcome by the people and their representatives as everything else the supercool Harley-riding leather anarchy bros of Reason.com purport to adore and support unto death.


Posted by: Flippanter | Link to this comment | 11- 3-14 1:25 PM
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8

5: I'm admittedly totally car-naive, but I have no idea what a key-hole punch looks like. It's so long ago that I can't remember if I saw pictures (I was not this guy's only lawyer -- there was a partner primarily responsible for the case, and there had been another associate preceding me).

The thing that really got me about it, though, was the ten years, which seemed crazy even for knowingly buying a stolen car.


Posted by: LizardBreath | Link to this comment | 11- 3-14 1:27 PM
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9

Yes. The punishment seems high.


Posted by: Moby Hick | Link to this comment | 11- 3-14 1:31 PM
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Back when the keyholes of car doors used to be in small metal circles (at least for some makes), there was a tool that let you punch out that entire mechanism and open the door. It didn't leave much damage, but the damage it did leave was very characteristic. This happened to me on a car that was maybe a 1990 or so.


Posted by: Moby Hick | Link to this comment | 11- 3-14 1:33 PM
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That's not what I'm recalling -- I thought it was some kind of special pry-bar dent -- but I don't have any visual memory of pictures and might have misunderstood a verbal description.


Posted by: LizardBreath | Link to this comment | 11- 3-14 1:36 PM
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8 is consistent with my understanding of Alford pleas. You're maintaining your innocence, while conceding that the government probably has enough evidence to convict you. It can be a useful plea for appeals purposes—it always looks better if the client maintained innocence from the get-go. Also useful if the prosecutors agree that a previously obtained conviction is fucked up, but apparently not fucked up enough to completely undo, and it's gonna be an even longer fight, and the client just wants to go home. (See The West Memphis Three).

One huge limitation: it's usually up to the judge (and I think in some jurisdictions the prosecutor) whether to allow an Alford plea; as a result, they're pretty uncommon.


Posted by: Stanley | Link to this comment | 11- 3-14 1:55 PM
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And by 8, I mean 6.


Posted by: Stanley | Link to this comment | 11- 3-14 1:57 PM
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Sad to hear this news. He had a really infectious laugh. And a love for the Dodge Dart.


Posted by: Barry Freed | Link to this comment | 11- 3-14 2:06 PM
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Wrong car thread.


Posted by: Moby Hick | Link to this comment | 11- 3-14 2:08 PM
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16

This is going to sound callous, but I'm actually surprised at how relatively few innocents who Rakoff thinks plead guilty.

Not that even one person pleading out due to what is sometimes literally coercion wouldn't make it worth doing something about it, but I thought the numbers would be much higher.

What would help even more than judicial reform is to decriminalize drug offenses. What fraction of these cases are non-violent drug-related?


Posted by: DaveLMA | Link to this comment | 11- 3-14 2:09 PM
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16.3 partially answers 16.1/2 - drug offenses are thick on the ground, so the pleaders probably are mostly guilty; it's the law, rather, that's unjust.


Posted by: Minivet | Link to this comment | 11- 3-14 2:33 PM
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16.3 partially answers 16.1/2 - drug offenses are thick on the ground, so the pleaders probably are mostly guilty; it's the law, rather, that's unjust.


Posted by: Minivet | Link to this comment | 11- 3-14 2:33 PM
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The reform suggested -- putting a recommendation for plea bargain in the hands of a magistrate who wouldn't handle the case at any later stage -- actually looks pretty reasonable to me, I say as someone with very little experience of criminal law.

One initial reason for finding it somewhat suspect is that it seems to entrench the plea bargain system further, whereas based on Rakoff's description, as I said in the post, it seems (taking 1 into account) to have been corrupted pretty thoroughly. And Rakoff says judges are already supposed to question defendants about guilty pleas, but … don't.


Posted by: nosflow | Link to this comment | 11- 3-14 2:35 PM
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I think actually bringing the plea bargain system to an end is an almost unthinkably huge change -- we'd have to increase the size of the courts and the prosecutorial apparatus to an incredible extent. So he's not even considering that.

And the role he's envisioning for magistrates would be very distinct from the kind of questioning judges are supposed to do now. It might break down, if they ended up envisioning themselves as aligned with the prosecution and adding to the pressure on defendants to plead. But if they stayed impartial it could work.


Posted by: LizardBreath | Link to this comment | 11- 3-14 2:42 PM
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That is, right now a judge isn't evaluating evidence at all at the plea bargain stage. What they're supposed to be doing is making sure that the defendant knows what they're pleading to, and what they consequences are and (in non-Alford circumstances) that they admit that they actually did it. Rakoff's magistrates would be looking at the prosecution's case, and saying "I think you should drop this, and if they won't, you should go to trial rather than pleading," or "this looks like a reasonable deal to me," or "you've got this guy dead to rights, I wouldn't offer him anything less than a small discount off the full charge." It'd be an impartial set of eyes on the strength of the prosecution's case.


Posted by: LizardBreath | Link to this comment | 11- 3-14 2:50 PM
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12: I don't know what I think of Alford pleas in general, but I was very happy when the judge refused to accept the plea of the Kids for Cash judges because they kept trying to say they were innocent while pleading guilty.


Posted by: Moby Hick | Link to this comment | 11- 3-14 2:51 PM
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Something simpler that might help would be regulating the size of the sentencing discounts prosecutors were allowed to offer. Like, my guy way back when was literally looking at 20 to 1 -- six months as opposed to ten years. If they weren't allowed to offer more than, maybe two to one, that might make things saner.


Posted by: LizardBreath | Link to this comment | 11- 3-14 2:55 PM
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if they ended up envisioning themselves as aligned with the prosecution and adding to the pressure on defendants to plead.

And that's unthinkable, so …

I think actually bringing the plea bargain system to an end is an almost unthinkably huge change -- we'd have to increase the size of the courts and the prosecutorial apparatus to an incredible extent. So he's not even considering that.

Theoretically we could prosecute fewer people, too. Just throwing that out there. The situation sort of reminds me of the case a few years back where CA was ordered to basically let people out of prison because, surprise! they didn't have the infrastructure to accommodate all the prisoners. Given which they shouldn't have been trying to imprison them in the first place. If what you're saying about the plea system is correct it seems similar in a "well, we can't do it right, but we reallllly want to do it, so we'll do it anyway, and do it wrong." sort of way.


Posted by: nosflow | Link to this comment | 11- 3-14 2:55 PM
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25

15 Guilty as charged.


Posted by: Barry Freed | Link to this comment | 11- 3-14 3:00 PM
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26

24.1: Not unthinkable, but not inevitable either. I could see it not working, but it might work.

24.2: Here's where my not knowing the criminal law system hurts. I believe that we could imprison a lot fewer people without much societal damage. My not-terribly-well-informed-opinion, though, is that a quick transition to a no-plea-bargain world would involve really implausible amounts of spending on the courts and prosecution, or imprisoning an inconceivably small fraction of the people we now imprison, to the point where I'm not convinced that it wouldn't have immediately bad social effects. It might still be morally the right thing to do, but not a call anyone in government would be likely to make, and not one I'd be confident in making myself.

Apo -- does your friend NC Prosecutor still lurk ever? I can't think of another prosecutor we've had around here.


Posted by: LizardBreath | Link to this comment | 11- 3-14 3:01 PM
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27

Plea bargains seem like the weirdest aberration in a common law criminal system ever. It basically defeats the purpose of an adversarial system and replaces it with an inquisitorial system by the backdoor.


Posted by: Keir | Link to this comment | 11- 3-14 3:07 PM
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28

They question your butt.


Posted by: Moby Hick | Link to this comment | 11- 3-14 3:09 PM
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29

This is one of those situations where doing things reasonably would be unthinkably expensive, but somehow it doesn't seem to be in any other developed country. I'm not sure why this is.


Posted by: LizardBreath | Link to this comment | 11- 3-14 3:13 PM
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30

We don't incarcerate anywhere near as many people?


Posted by: Keir | Link to this comment | 11- 3-14 3:15 PM
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31

I remember studying this in criminology class, where it was pointed out that the plea bargain system has something for everyone, except the innocent. Guilty people, prosecutors, judges, defence lawyers, it works for all of them.


Posted by: emir | Link to this comment | 11- 3-14 3:19 PM
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32

Also anyone who thinks there are no plea bargains in their common law system should double check. They may not be as systematised as in the US but I bet a guilty plea will definitely get favourable consideration at sentencing.


Posted by: | Link to this comment | 11- 3-14 3:21 PM
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29: My guess would be because other developed countries do not criminalize nearly as much bullshit as we do; do not give prosecutors the kind of insane sentencing leverage we do; and do not have the same history of gleefully railroading vulnerable populations--all of which combine to make our particular plea bargaining system extraordinarily coercive for people without the means to hire good defense counsel.


Posted by: potchkeh | Link to this comment | 11- 3-14 3:25 PM
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They may not be as systematised as in the US but I bet a guilty plea will definitely get favourable consideration at sentencing.

That seems very different from the plea bargain system.


Posted by: nosflow | Link to this comment | 11- 3-14 3:28 PM
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35

There's a minor sort of horse trading you get in NZ, but it's very minor and not at all like the systematised process the US has. In particular, there's no negotiation possible on sentence. It's not really comparable.


Posted by: Keir | Link to this comment | 11- 3-14 3:37 PM
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27 is basically what I took away from the unit on sentencing in my crim law class. Extensive plea bargaining gives prosecutors most of the power. To the point where defense attorneys are in the weird position, often, of pleading with the prosecutor about length of sentence or alternative sentencing as if she's the judge.


Posted by: Bave | Link to this comment | 11- 3-14 3:39 PM
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37

My brother got caught sending marijuana through the U.S. Postal Service. He was facing an insanely long prison sentence if convicted - and the feds had the goods on him (they had arrested the addressee and browbeat him into revealing my brother as the sender of the package).

Being middle-middle class, white and respectable, my brother was able to engage a good defense lawyer (referred to him by NORML, god bless 'em), who cut a deal that resulted in all charges being dropped. The essence of the deal was that the defense attorney, who was simultaneously representing some other clients that the feds really wanted to put away, agreed to drop some dilatory motions he was using to hold up the trial of the bigger fish he was representing. So in the end, my brother walked free because his attorney compromised his zealous advocacy on behalf of some other poor sap (who, for all I know, might have been a murderous drug kingpin; but he just as likely might have been some innocent poor black kid). I think the ABA ethics committee would have frowned on that particular agreement (which probably was never recorded on paper), but the federal prosecutor was willing to go along with it.


Posted by: Robert F. Kennedy | Link to this comment | 11- 3-14 3:49 PM
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38

Wow to 37.


Posted by: urple | Link to this comment | 11- 3-14 4:14 PM
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39

There's another prosecutor who dropped the charges on the "bigger fish" as part of the deal to get the person to whom your brother mailed the pot to give him up. It's a legal "Gift of the Magi."


Posted by: Moby Hick | Link to this comment | 11- 3-14 4:20 PM
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40

Today we had a departmental faculty meeting about the university's new sexual harassment policy and I learned that most professors haven't even watched enough Law and Order or whatever to be aware of the difference between civil law and criminal law, and university policies and government ones.


Posted by: essear | Link to this comment | 11- 3-14 4:30 PM
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33. It would be interesting to see how our non-US correspondents report on things like minor drug offenses, etc. (I ask this in ignorance, as I thought that outside of the Netherlands drugs were almost as untolerated as here in the US. Even Amsterdam has become more restrictive from when I was last there, AFAIK.)


Posted by: DaveLMA | Link to this comment | 11- 3-14 6:11 PM
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40: I'm going to go out on a limb and say that might be specific to certain disciplines at your university, primarily the ones located in the area of Oxford Street, to be precise.


Posted by: Knecht ruprecht | Link to this comment | 11- 3-14 6:24 PM
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43

I really never tire of hearing how unfit for general life essear's colleagues are. It's the best! (From all the way over here.)


Posted by: redfoxtailshrub | Link to this comment | 11- 3-14 6:48 PM
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44

!!!! Shocking analogy!

LB, would you say that the actually existing plea bargain system is too big to fail?????


Posted by: nosflow | Link to this comment | 11- 3-14 8:31 PM
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45

||
Oh yay, The Good Wife is back in form and giving me ulcers.
|>


Posted by: Mister Smearcase | Link to this comment | 11- 3-14 11:27 PM
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46

if he went to trial they were going to charge him with the whole car ring conspiracy, which was an astronomical monetary value and would have meant ten years.

Well, could have meant ten years. Here stealing and/or possessing stolen property is a second degree felony if the item is a firearm or a motor vehicle. Second degree felony is 1-15 years in prison on paper, or if they plead it down to a third degree, 1-5. But you know what's a really common sentence? The prison time suspended, and several months in jail along with probation. Guys only end up doing prison time on these by repeatedly violating probation, having a bunch of priors, repeatedly fucking up in drug court, etc.

My not-terribly-well-informed-opinion, though, is that a quick transition to a no-plea-bargain world would involve really implausible amounts of spending on the courts and prosecution, or imprisoning an inconceivably small fraction of the people we now imprison, to the point where I'm not convinced that it wouldn't have immediately bad social effects.

You're right. If people really want to see less people imprisoned then start approaching drugs more like a public health issue with things other than incarceration. Huge expansion of drug courts would be the quick and easy way to get this moving. I'm not real familiar with federal court, but in the state courts out here, the plea system is just fine. The case screening process at the DA and the preliminary hearing system (we don't use grand juries) really does keep a lot of iffy cases out of the system. The cases involving plea deals overwhelmingly are ones where everyone pretty much knows the person is guilty and the prosecution has pretty good odds at trial.


Posted by: gswift | Link to this comment | 11- 3-14 11:32 PM
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If people really want to see less people imprisoned then start approaching drugs more like a public health issue with things other than incarceration.

Another option is to legalize marijuana, which I am going to vote to do tomorrow.


Posted by: teofilo | Link to this comment | 11- 3-14 11:37 PM
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48

The prisons are so not being crowded with people on weed charges.


Posted by: gswift | Link to this comment | 11- 3-14 11:45 PM
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49

Fair enough. Still, it couldn't hurt.


Posted by: teofilo | Link to this comment | 11- 3-14 11:47 PM
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It'll be interesting to see how the rural communities in Alaska react if weed is legalized, in any case. Especially the ones that currently ban alcohol.


Posted by: teofilo | Link to this comment | 11- 3-14 11:51 PM
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I assume most of them will immediately ban marijuana too, and nothing will change, but we'll see.


Posted by: teofilo | Link to this comment | 11- 3-14 11:55 PM
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41: Drug policy in the middle east, Russia, and many parts of Asia is draconian. In most of Europe, weed is various shades of practically legal, and possession of harder drugs under conditions consistent with personal use rarely results in a prison sentence. I don't know how things are in south and central America.


Posted by: real ffeJ annaH | Link to this comment | 11- 4-14 2:20 AM
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43 is so right.


Posted by: heebie-geebie | Link to this comment | 11- 4-14 2:31 AM
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20/27. The main criticism on the ground of the French system of Juges d'instruction is precisely that it's slow and cumbersome and fill the gaols with people awaiting trial. So notwithstanding its positive aspects, it doesn't seem to me that grafting it onto the US system would help answer the problems that apparently beset it.

Not being either a lawyer or an American, the thing that stands out in this discussion as particularly horrible is the Alford plea, which, if it works as LB and Stanley have described, seems to be precisely a "corrupt mechanism to deal with understaffing". If you want to demolish the plea bargain system by stages so as not to overwhelm the courts in one go, I would suggest that doing away with this, and indeed making any such proposal a criminal conspiracy in itself, would be a good way to start.

But as several people have pointed out, the real problem in the system is the idiotic drug laws choking the courts with trivialities


Posted by: chris y | Link to this comment | 11- 4-14 3:32 AM
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I agree with gswift that expanding drug courts is the way to go if there isn't decriminalization. But how parental drug offenses factor into family court and foster care also needs to change in a lot of places. It's been breaking my heart that I can't actively campaign against the judge Nia and Selah had because the guy running against him seems likely to be at least as bad, while the fantastic activist family lawyer is running against the innocuous judge who's not really a problem as is.


Posted by: Thorn | Link to this comment | 11- 4-14 4:18 AM
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46: It was federal (interstate conspiracy). The ten years was solid -- if they'd convicted him on the charged statutes, with the charged total value, that was what came out of the sentencing chart.


Posted by: LizardBreath | Link to this comment | 11- 4-14 4:33 AM
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as particularly horrible is the Alford plea

I agree that Alford pleas are unseemly, but I don't think eliminating them fixes anything. If the incentives remain the same otherwise, defendants under pressure to plead will just lie.


Posted by: LizardBreath | Link to this comment | 11- 4-14 5:25 AM
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45 gets it exactly right.


Posted by: essear | Link to this comment | 11- 4-14 6:31 AM
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With all this talk about Alford pleas, has anyone ever tried a Halford plea? ("Yes, I am guilty, but there were extenuating circumstances: I was under the influence of massive amounts of kale, I was egged on by my ninja manservants, and to be clear, it was totally awesome.")


Posted by: essear | Link to this comment | 11- 4-14 6:33 AM
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56: Ah, I didn't realize it was federal.


Posted by: gswift | Link to this comment | 11- 4-14 6:33 AM
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I remember reading many years ago about some DA (I think in Alaska) who had gotten elected on a platform of eliminating plea bargains. What he did once elected was institute a more stringent system of pre-charging review in the DA's office, plus some sort of understanding where, although formal plea bargains weren't used, defendants who cooperated by choosing a bench trial (by judge) rather than insisting on their right to a trial by jury got consideration from the judge at sentencing. This was pre-mandatory minimums, IIRC. I have no idea how much of a railroad the bench trials were in practice (one of the possible risks of this system), but they did involve significantly fewer government resources than jury trials. I have no idea if this would work on a larger scale, but it does seem like one way to get a form of judicial review of the sentencing bargain.


Posted by: Dave W. | Link to this comment | 11- 4-14 12:44 PM
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I do recall the work-to-rule proposal idea floating around about this; it seems like something that could be done locally, say by the public defenders in some district.


Posted by: Nathan Williams | Link to this comment | 11- 4-14 1:09 PM
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