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Plea Bargains – No Bargain For Anyone?
Plea offer. A good deal for someone who is guilty?
A good deal for the state, as plea bargaining avoids an expensive lawsuit?
Here are some pleasurable offers in relation to actual phrases that I personally became aware of. I omit the surnames of those mentioned.
Albert -sexual assault; was offered a plea bargain to reduce the crime to a misdemeanor, no mandated sex offender treatment, no annual sex offender registration and a 4 to 6 month prison term. He refused and said: “I am not guilty”. After 2 trials, (the jury was deadlocked in the first trial – 10 for not guilty; 2 inconclusive), the second jury convicted him and he was sentenced to 7-1/2 to 15 years.
Michael, sexual assault; was offered a 1-year plea deal with the condition that he complete sex offender treatment. He refused, went to trial and is serving 2 consecutive sentences of 3-1/2-7 years (ie a total of 15 years option).
Carl, sexual assault; was offered 2-6 years as a fine. He denied and claimed innocence; was convicted and sentenced to 7-1/2 to 15 years plus 6-12 years, suspended, if good behavior under 1st pt.
Are these pleas fair to the defendant? Are they fair to the victim? Are they fair to the public?
In New Hampshire, case law governs prosecution. “…(They) have been openly recognized as a proper part of the criminal process since 1970, although they existed…..from time immemorial.” (State vs. Manoly., 1970) This is also the case in virtually every other state.
Negotiated pleas and plea bargains are used by both defendants and prosecutors. Why?
Clearly, if a plea can be satisfactorily negotiated, the costs of a trial can be avoided.
If the crime has traumatized a victim, a trial sometimes exacerbates that trauma. Some victims refuse to testify or fear the thought of meeting their perpetrator again. Think – if you were brutally raped, or beaten, or terrorized for hours, pistol-whipped, etc., how would you feel going through a trial for hours or days, seeing the person who offended you? Would you be able to face the relentless questioning by lawyers, about the incident, about your personal life – and with the public watching – with the possibility of the details in the newspaper and on television?
So would you be grateful that a plea deal was reached and that the person who committed the crime would be punished without further involvement on your part?
Or, on the other hand: What if you were willing to testify against this person and you wanted to see him or her receive the full penalty under the law, and then the state offered a plea deal? What if that sentence could have been 10 to 20 years if he/she was convicted by a jury and the plea was 2 to 4 years? Would you feel cheated? Would the public feel cheated and believe that this person should have had the full weight of the law applied and should not have been able to receive a shorter sentence simply for pleading guilty?
In anticipation of this article, I asked an inmate at Concord Men’s Prison how he felt about charges. (He had denied one in his case, and had been sentenced to treble the plea.) He said, “You are being punished for exercising your right to a trial if you are offered a 2-year trial and they tell you, that you will get up to 20 years if you lose at your trial.” In other words, “If you insist that you have the right to be convicted, we will convict you and give you twice, thrice, etc. more years in prison than if you accept our offer.”
Atty. Michael Skibbie, former head of the public defender’s office in Concord. NH, stated the following to a law committee:
“The overwhelming majority of cases in this country and in New Hampshire are resolved by plea, not trial. Nationally, 80 or 90% of felony cases are resolved by plea.” “Fewer than 10% of the felony cases that we (the public defender) handle actually go to a jury.”
He went on to explain why this happens, including the difficulty of trying to predict how a jury would react to the evidence, the defendant and the alleged victim. He said, “I’ve won cases that I was sure I was going to lose, and I’ve lost cases that I was sure I was going to win. And most experienced criminal defense attorneys would tell you the same.” And the prosecutors could say the same. “Obviously, both sides are taking a risk when they go to court.”
I mentioned above that by settling a case by plea, you avoid great expense. Atty. Skibbie also stated how plea bargaining relieves the court of a monumental number of cases. Imagine – if 90% of criminal cases are negotiated now and it stopped! If you think the court system is now clogged with backlogs, (which it is), think what it would be like with 9 times as many cases!
He further commented on the prosecution’s rationale for higher sentences if the defendant insisted on a trial and was subsequently convicted. One reason is the effect the trial has on victims and other civilian witnesses. Likewise, the defendant’s attorney is motivated to negotiate a plea that “…it will typically be either a change of charges, a recommendation of a sentence that the defendant will perceive as something better than he or she would receive at trial, or both share.” He said that in sex cases there are additional factors for both sides to motivate pleas.
“First, from a prosecutor’s perspective, these cases are fraught with greater uncertainty…” “They are difficult cases for both sides. Even when the prosecutors get convictions, the reversal rate is higher than any other case.” From the defense side: “The penalties for conviction after trial are very, very high. If you’re a 20-year-old man and you’re potentially facing 20 years in prison if you lose this trial, there are a lot of people who believe that is the end of their life—being in their 40s.”
Referring to the difficulties of having the victim talk about embarrassing and private matters during sex crime trials, he said: “But on the other hand, there is probably nothing more difficult (for the defendant) to admit in a public courtroom than a sexual crime”, (in the case of a plea agreement).
Another big factor in sexual assault cases is the potential for the defendant to be registered every year for the rest of his life as a sex offender. If the prosecuting attorney offers a plea that still requires this provision, many defendants are agonized over accepting the plea. Some say ‘no’ and prefer to take their chances during the trial. This “registration” aspect is unique to sex crimes. If you rob a bank, brutally assault someone, kidnap a child, or even hold the police ‘at bay’ with an assault rifle, you can ‘fight a plea’ and when you’ve served your time and are released, re ‘through’ with the system . There is no registration every year at the police station and no easy way for the public to discover that you had been imprisoned for committing a crime.
If you move to another community or state, you can become virtually anonymous as far as your criminal history is concerned.
Do you want to accept a plea agreement? Would it be an easy decision for you? Atty. Skibbie put it quite succinctly: In a plea deal, “you’re talking about 5 years in prison vs. 10 years in prison — or 7 years in prison vs. 20 years in prison.”
“It is very, very difficult to make a decision to go to prison, even for a relatively very short period of time.”
And if you are innocent? Let’s say they offer you two years as a plea deal, with a possible 20 if you lose at trial. Do you forget that you are innocent and accept the plea because you have heard that justice is not always fair and that you may be wrongly convicted?
I will leave you with two more cases – actual cases in New Hampshire. These are direct quotes from the convict.
(a) “I have been incarcerated…since 1995. The day my trial began I was offered a plea deal of 4 years…the deal was only on the table until the victim took the stand. Because I was innocent, I walked before the court…” “I was convicted of 7 of the 12 counts. The judge sentenced me to 18-1/2 to 37 years, with 14 to 28 more years suspended. I could conceivably serve a maximum of 65 years.” “If I was guilty, I would have easily taken the plea, completed the sex offender (treatment) program, and as of today I would be living back in society.”
(another) “The prosecutor offered me 5 years in prison…(as a plea).” “I declined … knowing my innocence (and) … wanted to clear my name (at trial).” “On January 30, I was found guilty.” “The judge sentenced me to 33-1/2 to 67 years.”
It is difficult to comment on these specific cases unless you have read more about those cases. But they are all examples of our plea bargain system. That the state could give such a small sentence during a plea, and then pronounce such a long sentence if the case came to trial,
Is every crime less heinous because the perpetrator agrees to a plea deal? If the prosecutor is certain that the accused is guilty, is he doing society a disservice by offering that offender a very light sentence compared to a much harsher sentence if convicted by a jury?
The plea deal system is a really interesting aspect of the criminal justice system and I think it may never be fair to everyone or even understood.
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