“Sentencing Shift Gives New Clout to Prosecutors” is a page-one story in the New York Times of September 26, 2011.  
 
It is true that longer sentences and mandatory minimums have increased the motivation of criminal defendants to plead guilty in exchange for lesser charges or a shorter sentence.
 
Plea bargaining has been around for a long time and is not about to disappear.  Even in civil cases, arbitration, mediation and settlement negotiation have a positive effect in diminishing the judicial caseload.  Our judicial system would collapse if we did not have pre-trial settlements.
 
The problem with plea bargaining is not the process itself, and it is not the prosecutors.  Rather, it the pressure placed on prosecutors to deal with a docket that has grown faster than their budget, leaving them without the resources to try every case.
 
As a result of this financial squeeze, the DA’s office has to reduce the number of trials by increasing the number of guilty pleas.  In effect, their ultimatum is “Accept this deal or we are going to throw the book at you.”  I understand that, and I do not blame them.
 
What does it mean for defendants?
 
1.            Unfortunately, some plead guilty even though they are innocent.  They may not have the money to put on a defense.  Their court-appointed lawyer may not have the time or the funds for such things as experts, to present a good enough case to get them acquitted.  The eyewitnesses may be mistaken, or even lying.  And,
 
2.            Others will plead guilty to avoid the risk of facing more serious charges or being hit with a mandatory minimum sentence if convicted.  Again, there may be doubt about whether than can beat the charge.  For example, the case might depend whether the jury believes them or a more sympathetic victim.  And they may not be willing to take a chance, rolling the dice if you will; especially if they will not make a good witness themselves or there is a chance the jury may be biased against them because of their race or other factors.
 
The real problem with our criminal justice system is not prosecutors’ clout.  It is these things:
 
1.            Eyewitnesses are often wrong.  You might be innocent and still be condemned.  Look what happened to Troy Davis.
 
2.            In these trying economic times, less money is available for prisons, vocational training, mental health treatment, alcohol and drug de-tox, and alternative dispositions like probation and the half-way house.  Prisoners rot in prison.
 
3.            Many prosecutors are elected, and have to show they are “tough on crime” if the want to keep their jobs.  Because voters reward legislators who enact new criminal laws and lengthen criminal sentences, we are constantly in need of more prison cells and more prisons at a time when we are unwilling to pay for them. 
 
4.            Mandatory minimum sentencing is largely ineffective at protecting society, deterring criminal conduct or punishing criminals.  It eliminates judicial discretion based upon such things as aggravating or mitigating behavior and the risk (or unliklihood) of recidivism.  It substantially increases the cost to society in housing more prisoners without delivering us any significant added benefit.  And,
 
5.            Despite popular perception, punishment is not a major deterrent of crime.  Better deterrents are education, a job, a stable family, and a sense of belonging to a community.  Most criminals don't know anything about criminal law.  If they did consider consider consequences, they would only be confirming an irrational belief that they will never be caught.


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               Instead of creating more prisoners who get educated in crime by fellow inmates, we should offer an opportunity for rehabilitation.  We should at least give non-violent, first-time offenders a chance to become productive members of society.  That involves our helping them manage addiction or mental illness, and our providing an opportunity for them to acquire job skills.  Not doing this costs more in the long run.  We cannot afford to not even try.