A Plea-Bargain Before Dying

Murder is a subject of perpetual interest, as the history of bestselling fiction amply demonstrates. Having met more than my fair share of murderers in the course of my professional life, I find it fascinating. There are genres of murder as there are of painting. Because I am a doctor, the murders committed by doctors and nurses get my attention, all the more so since one of my close friends is a great expert on the pharmacological aspects of such crimes.

Murder by healthcare staff is one of the few genres of murder in which poison remains the weapon of choice. When, therefore, I happened by chance on a book that promised to explain to me why the doctors and nurses in question killed, I bought it. Disappointingly, by the end of the book I was none the wiser. However, I was not too disappointed; in my heart of hearts I had never really expected enlightenment. Understanding murderers is a tall order, as opposed to describing, as this book did, some murderers’ acts and personal backgrounds.

But the book did fill me in on—and alarm me about—the state of plea-bargaining in the criminal justice system in the United States and, to a lesser extent, Britain. (Whether it exists in other jurisdictions, I do not know.) For it seems to me that plea-bargaining is intrinsically unjust, corrupt, and corrupting. It is, if not quite the antithesis of, at least incompatible with, justice.

Several cases were described in the book in which a serial killer agreed to plead guilty to several charges of murder on condition that the prosecutor did not seek the death penalty. The prosecutor accepted this, and thus the case was soon done and dusted, forgotten except as a matter of research for forensic psychologists.

Now this seems to me grotesque and preposterous. If a man deserves the death penalty, surely his plea to the charge cannot weigh in the balance. One cannot seriously say, “Well yes, he did kill six people, but on the other hand he has admitted his guilt and therefore deserves a much lesser sentence than if he had not.”

Incidentally, “successful” plea-bargaining all but refutes such arguments as that imprisonment for life is a worse, crueller punishment than execution, and that the threat of life in prison deters as much as does the death penalty. Suffice it to say that no prosecutor ever offered extinction to a murderer if only he would plead guilty, failing which he would get a life sentence. Vanishingly few murderers (though there have been some) have begged to be executed rather than imprisoned for life. It is common sense that what one most fears is likely to be the most effective deterrent.

But to return to the main point: plea-bargaining is intrinsically unjust because it may induce the innocent to plead guilty and the guilty to hold out for a lesser punishment than they deserve. It encourages prosecutors to intimidate defendants by multiplying and exaggerating charges on the great Hitlerian principle that if you sling enough mud, some of it sticks. It undermines the principle that the prosecutor’s purpose is not to secure a conviction at any price, but to secure justice.

The system of plea-bargaining would not be so bad if the advantages offered to the accused were minor: a year, say, subtracted from a 10-year sentence if he pleaded guilty early in the proceedings. But then, of course, plea-bargaining would not be very effective in eliciting cooperation from the accused that he was otherwise disinclined to give. As it is, where the difference is between life and death or between, say, five and 50 years in prison, the state has in effect been turned into a particularly nasty (because particularly powerful) blackmailer.

Cases are by no means uncommon in which the circumstantial evidence is strong against someone who is nevertheless innocent. After all, it is rare that a person would be charged but acquitted who had no evidence against him. To change the analogy from blackmail to gambling, the trial of such a person should not be turned into a game of poker in which the question becomes who blinks first. No accused innocent ought to be induced or tricked into pleading guilty for fear of losing a bet on his own innocence. Nor should so many charges be laid against a person that a jury is likely to conclude that, because there is usually no smoke without fire, there must be something in the bill of particulars worthy of punishment.

Moreover, even in instances where the person on trial for murder is guilty, he ought not to be punished additionally for having pleaded innocent, which is not itself a crime.

The cases of serial killing in which the state accepted the plea of guilty on condition of forswearing capital punishment meant either that the state did not really believe in the rightness or justice of that punishment in the first place, or that it was prepared to sacrifice justice to its own administrative convenience. If it was never going to ask for the death penalty, it secured a guilty plea by low trickery; if it was going to ask for it, it was in effect prepared to put people to death merely for having mounted a defence against the charges, since that is the only difference between those whom it executes and those whom it does not.

The best that can be said for such administrative convenience is that it speeds the course of justice and that swiftness (which is not the same as shoddiness or carelessness) is a component of justice. But regarding a serial killer, the time saved by plea-bargaining is likely to be a small proportion of the rest of the time occupied by the case; while swiftness is desirable, it ought not to be purchased at the cost of justice itself.

A utilitarian argument in favor of plea-bargaining would be as follows: By saving time and expense with shorter trials, the criminal justice system is able to deal with more cases than it would otherwise, to the great benefit of society as a whole. This is a very dangerous argument that might just as well be used against the presumption of innocence, which is, of course, very expensive and time-consuming. How much more efficient it would be if policemen who caught people in flagrante were allowed to administer swift retribution there and then! Think of the deterrent effect, and how safe one would be walking the streets!

But the rule of law would have been abrogated, and plea-bargaining is a step in that direction.

Reader Discussion

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on July 09, 2014 at 11:34:50 am

That last paragraph got me into a rather silly but entertaining rabbit hole: what if reverse presumption of innocence is actually a better and more efficient way to deal with criminal justice?

The thought experiment goes like this: in most current criminal justice systems, the courts serve subpoenas and arrest orders, police departments produce evidence for prosecution and suspects are convicted if the courts deem the evidence damning enough. But what if all cases of police misconduct were prosecuted on a guilty-until-proven-innocent basis, and police departments were left to handle anything outside of that on their own?

If cops have skin in the game, they will need to be reasonably sure that a jury will rule their decisions legal and valid after the fact. Scrupulous evidence-collecting and record-keeping would become the rule, police would be self-monitored 24/7 by cameras and microphones, and agents wouldn't dare move against a suspect unless the evidence against him is strong enough to guarantee their acquittal in court.

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Image of Korth
on July 10, 2014 at 08:06:05 am

Dear Dr. Dalrymple, the heart of your objection to plea bargaining is the a rejection of the idea of compromise as a valid concept within the criminal justice system. Is justice in any given crime a fixed point we can all agree on or is it more likely a range of reasonableness ? Let's take murder. Our society clearly disagrees on the death penalty as a potential punishment for murder. Does this make one side or the other wrong? I have stood in front of the families of murder victims (I'm a local assistant prosecutor) who where demanding the severest penalties possible and explained to them that yes, I absolutely believed in our case but if we went to trial the defendant might go to jail for the rest of his life or be executed, or he might walk out the door past them in the courtroom out into the street a free man. The defendant is also faced with those possiblities. Knowone truly knows what a jury will decide. None of this constitutes blackmail or corruption.

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Image of Dennis J. SKAYHAN
on July 10, 2014 at 12:57:41 pm

Excellent article, and points, and quotable.

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Image of TMay
on July 10, 2014 at 15:17:00 pm

For an interesting take on this, a recent book (last 2 years or so) called "Three Felonies A Day (or maybe 5 a day?) sheds light on the abuse resulting from this prosecutorial discretion - in particular, when there are more laws than anyone individual can possibly be aware of, it is rather easy to compel an individual to "accept" a plea bargain for an action that may not have actually been criminal in the strictest sense AND more importantly to get that individual to "rat out" an individual that the state is actually after.

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Image of gabe
on September 15, 2014 at 18:27:41 pm

[…] I’m not going to write on it anymore, but a comparable perspective on plea bargains that someone shared in the comments here (sorry I forgot who […]

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.