Commentary: Offering plea bargains is actually a horrible government practice!

By Robert Murphy

September 5, 2014 - Because it is so commonplace, most people accept the practice of State prosecutors offering a “plea bargain” without much thought. After all, it seems like a win-win situation: the State saves on court costs and other resources, while the defendant who takes the “deal” does less time than what he or she is likely to suffer if the case goes to a full trial. Yet even though they are very common in the Fascist Police States of Amerika, a prosecutor offering a plea bargain is actually quite horrible and a travesty of justice, when you think about it from a certain perspective.

To warm you up to my view - which may at first seem odd - consider this quotation I found from a legal website: “Plea bargains are extraordinarily common in the Amerikan legal system, accounting for roughly 90% of all criminal cases. Many countries, however, do not allow plea bargains, considering them unethical and immoral.” Isn’t that interesting? This typical FPSA practice is considered a miscarriage of justice in many other parts of the world.

Rather than tackling the specific exchange that occurs in a plea bargain, let me start with something simpler and work up to it through a series of slight tweaks:

Step #1:  Suppose a government prosecutor wants to convict Jim Smith of manslaughter in a case where Smith was drinking heavily and accidentally killed a pedestrian while driving home from the bar. So the prosecutor approaches somebody who had been at the same bar as Smith that night, the whole time he was getting progressively drunker. The prosecutor offers to pay that person $50,000 in exchange for his testimony against Jim Smith, in order to help the prosecutor secure conviction on the charge of manslaughter. Does this sound like an acceptable practice?

Most people would surely recoil and say, “Of course not! That would be incredibly unfair to Jim Smith. How in the world would any sane legal system allow the government prosecutor to pay such a massive bribe to a witness, in order to get testimony to convict a defendant? Sure, the witness could still take an oath and get in trouble if he’s caught perjuring himself, but give me a break, a $50,000 bribe could sure buy a lot of ‘evidence’ for the prosecutor.”

I think we’re on solid ground so far, right? Let’s move on.

Step #2: Suppose we’re dealing with the same case: a government prosecutor wants to convict Jim Smith of manslaughter for driving home drunk from the bar. But now, the prosecutor approaches the witness from the bar and offers to reduce the guy’s tax bill by a total of $50,000, in exchange for his testimony against Jim Smith. Does this sound like an acceptable practice?

I think most people, after going through the process of Step #1, would conclude that Step #2 is also totally unjustified, and if anything is even worse. That’s because I never specified whether the $50,000 payment in Step #1 would be taxable income or not. If it were, then the net payment to the witness would only be some fraction of that amount, say $40,000, in Step #1. But a tax credit of $50,000 would make the witness (and his wife) exactly that much wealthier if he takes the deal. For all the reasons that Step #1 is horrible, Step #2 is at least as bad.

Step #3: Suppose instead that the prosecutor approaches the witness and threatens to increase the man’s total tax bill that year by $50,000 unless he agrees to testify against Jim Smith.  Does this sound like an acceptable practice?

This one should be a no-brainer. This is far, far worse than Step #2. After all, in the first two scenarios, the witness could simply walk away if he didn’t want to testify against Jim Smith; the prosecutor was merely offering the guy something extra. But now in Step #3, the prosecutor is going to hurt the witness - very significantly - unless the witness gives the desired testimony that will help the prosecutor secure a conviction against poor Jim Smith.

Seems extremely unfair, and not at all conducive to obtaining accurate testimony, right?

Step #4: Now the prosecutor is really playing hardball. As before, he wants the witness from the bar to testify against Smith. But this time, the prosecutor tells the witness, “Unless you testify against Smith like I want, we’re going to play a little game. I’m going to flip this quarter. If it comes up heads, you’re free to go. But if it comes up tails, then I throw you in prison for 20 years.” Does this sound like an acceptable practice?

I sure hope we can all agree that Step #4 is even more horrifying than Step #3. With such a threat backing him up, the prosecutor will be able to get just about anybody to testify against Jim Smith, because nobody wants to risk that 50% chance of going to prison for 20 years.

Giving the prosecutor the power to make such threats against people is clearly wrong, but let’s think about why. It’s not simply that it would be unfair to the witness. It would also be grossly unfair to Smith. The prosecutor will be able to get someone to testify against Smith, when that witness might be lying and just saying whatever the prosecutor wants to hear. If the point of the legal system is to send guilty people to jail and let innocent people go free, then you definitely don’t want the State’s prosecutor walking around with the power to threaten witnesses with 20-year prison sentences if they don’t testify against a defendant.

Step #5: This step is actually the same as #4, but I’m going to give you a crucial piece of information. All along, you probably thought that the witness was a different person, but actually the whole time it was Jim Smith himself. (Jim Smith was in the bar the whole time he was drinking, after all, and Jim Smith was an eyewitness to the whole tragic affair.) The prosecutor tells Jim Smith, “Unless you testify that Jim Smith is guilty of manslaughter, this case is going to trial, and there’s a good chance that you will be convicted of second degree homicide and serve 20 years in prison. So I suggest you plead guilty to the lesser charge of manslaughter.”

Now that we’ve worked through Steps #1-4, I have to ask: Does this sound like an acceptable practice?

Just to be clear: nothing here is criticizing the defendant who takes a plea bargain; he or she is placed in an awful predicament, which is part of the point. Rather, this article shows why the government should stop this practice, because it gives it the power to get people to admit to crimes they didn’t commit, in order to avoid a worse fate. If you can see why Steps #1 through #4 are clearly awful, then Step #5 must be awful as well. The reasoning doesn’t change just because the witness and Jim Smith happen to be the same person