Ask Howard Treesong About Law or Lawyering

[Adebisi]

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I think this has much more to do with the fact that prosecutors are largely overwhelmed and thus only choose to prosecute cases they think they can win, and plea everything else.

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So, if criminal defendants stopped entering into plea bargains with prosecutors, you think the conviction rate would go WAY down? Why don't more people just take their chances at trial? If a defendant has 10% chance of getting 5 years and a 90% of walking, why would he accept any plea that would give him a criminal conviction on his record for the rest of his life?

It just seems like something is really off with the system. The notion that it would be better for 100 guilty men to go free than for 1 innocent man to go to jail seems to have disappeared completely from our court system.

[Howard Treesong]

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I think this has much more to do with the fact that prosecutors are largely overwhelmed and thus only choose to prosecute cases they think they can win, and plea everything else.

[/ QUOTE ]

So, if criminal defendants stopped entering into plea bargains with prosecutors, you think the conviction rate would go WAY down? Why don't more people just take their chances at trial? If a defendant has 10% chance of getting 5 years and a 90% of walking, why would he accept any plea that would give him a criminal conviction on his record for the rest of his life?

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Yes, although your premise is unrealistic. As prosecutors got even busier than they already are, they'd offer better-quality deals to defendants, giving defendants more incentive to accept pleas. Prosecutors would probably get a bit sloppier as they had even less time to prosecute cases that they do try. And it's not possible for criminal defendants to organize in the way you suggest for zillions of reasons. But in theory, I think you're right.

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It just seems like something is really off with the system. The notion that it would be better for 100 guilty men to go free than for 1 innocent man to go to jail seems to have disappeared completely from our court system.

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I don't think there's much of that principle that exists now, if it ever did. And while it's appealing at some level, I'm not sure it's right, given the additional crimes that those 100 free guilty guys are likely to commit.

[Adebisi]

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Yes, although your premise is unrealistic. As prosecutors got even busier than they already are, they'd offer better-quality deals to defendants, giving defendants more incentive to accept pleas.

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I was thinking more about the individual level than the systemic level here. You seemed to be saying before that prosecutors tend to enter into plea agreements in the cases that they are most unlikely to win at trial. Even if the plea deal encompasses very little jail time (or even none), the lifelong stigma of having a criminal conviction on one's record should push toward more defendants "gambling" on a trial. Obviously this doesn't apply to people that already have criminal records (maybe these people constitute a huge portion of criminal defendants?), but it just seems that from a game theory/economic perspective, something is WAY off in the criminal justice system. Somehow, the game is rigged.

[FlyWf]

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Yes, although your premise is unrealistic. As prosecutors got even busier than they already are, they'd offer better-quality deals to defendants, giving defendants more incentive to accept pleas.

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I was thinking more about the individual level than the systemic level here. You seemed to be saying before that prosecutors tend to enter into plea agreements in the cases that they are most unlikely to win at trial. Even if the plea deal encompasses very little jail time (or even none), the lifelong stigma of having a criminal conviction on one's record should push toward more defendants "gambling" on a trial. Obviously this doesn't apply to people that already have criminal records (maybe these people constitute a huge portion of criminal defendants?), but it just seems that from a game theory/economic perspective, something is WAY off in the criminal justice system. Somehow, the game is rigged.

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You're ignoring that prosecutors do not randomly indict people off the street. While they could indict ham sandwiches they generally spend their time indicting people who they believe committed crimes. The unusually high conviction percentage can be explained by selective indictment.

You've failed to identify a problem. The cases that prosecutors are truly most unlikely to win at trials are cases where the defendant is clearly innocent. Those people aren't offered plea bargains, they get charges dropped.