Busy docket days in Denver’s crowded criminal courtrooms often resemble the Grand Bazaar of Istanbul in full swing. Prosecutors and defense lawyers bargain furiously in the gritty back-and-forth haggling of plea negotiations. Meanwhile, the accused weigh their options: admit guilt or go to trial?
Currently, it’s estimated that more than 90 percent of federal and state defendants will choose, in the words of Monty Hall, to “Let’s Make a Deal.”
The relentless rise of plea bargaining and the concomitant decline and fall of trial by jury have raised alarm among lawyers, judges and legal scholars around the country. Vociferous critics of the current system, with its mandatory minimum sentences and penalty enhancements, fear that it vests far too much power in the office of the prosecutor. District attorneys enjoy broad discretion in making charging decisions and extending plea bargain offers, and those who are wary of that power and discretion believe that it could very easily be abused and cross the line into coercion.
Why is plea bargaining so popular? Because everyone gets some benefit. Judges are able to clear clogged court calendars, efficiently manage their workflows and contain costs. Prosecutors are assured of a conviction. No matter how overwhelming the evidence against a defendant may be, juries are unpredictable. Victims are spared the agony of testifying at trial. Defendants reduce their exposure to lengthy prison sentences. What’s not to like?
Another reason plea bargains have gained such favor is that in the past several decades, trials have grown increasingly lengthy, complex and costly, so much so that courts can no longer afford to offer them to everyone charged with a crime. In England’s Old Bailey in the 1730s, records show that the court routinely handled over a dozen jury trials in a day. Of course, that was before lawyers were employed.
It’s also possible that guilty pleas have exploded because many defendants are not exactly brilliant criminal masterminds. Instead, these Einsteins get caught on surveillance cameras breaking and entering, they leave behind fingerprints and DNA, or drop their IDs at crime scenes.
Their own ineptitude, coupled with improved police investigative techniques and astounding advances in forensic science over the last several decades, have allowed prosecutors in many cases to amass a daunting volume of evidence unthinkable just 50 years ago. A defendant confronted with such overwhelming evidence might well be expected to admit that he is really most sincerely guilty of the crimes with which he is charged.
Plea bargains may decline at some point in the future, but it’s unlikely. Sadly, court resources are simply too limited to give effect to the plain, unambiguous language of the Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed … .”
Determined defendants could certainly wreak havoc on the plea bargain system by joining together, strategizing, and calling the prosecutor’s bluff. Each defendant could demand a jury trial and resolutely refuse to waive the right to speedy trial. What district attorney would have the resources to take them all to trial?
Of course, it’s highly unlikely that would ever happen. Defendants are too susceptible to the lovely voices of the plea bargain Sirens, singing of sweet deals for probation with no further jail. Since they wouldn’t have Odysseus around to shove wax in their ears, they would more than likely capitulate and drink the plea bargain Kool-Aid.
Contact Teresa Keegan at tkeegan@ecentral.com.
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