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Plea Bargains – No Bargain For Anyone?

Plea Transactions. A good deal for someone who is guilty?

A good deal for the state because plea deals avoid expensive litigation?

Here are some plea bargains offered in exchange for actual sentences made in this that I have personally been aware of. I omit the surnames of those mentioned.

Albert -sexual assault; was offered a plea bargain of reducing the crime to a misdemeanor, no required sex offender treatment, no annual registration as a sex offender, and a prison term of 4 to 6 months. He refused, saying, “I am not guilty”. After 2 trials, (the jury deadlocked in the first trial-l0 for not guilty; 2 undecided), the second jury convicted him and he was sentenced to 7-1/2 to 15 years.

Michael, sexual assault; was offered a plea bargain of 1 year with the condition that he had to complete sex offender treatment. He refused, went to trial, and is serving 2 consecutive sentences of 3-1/2-7 years, (ie a possibility of 15 years, in total.).

Carl, sexual assault; was offered 2-6 years as a plea bargain. He refused, claiming innocence; was convicted and sentenced to 7-1/2 to 15 years plus 6-12 years, suspended, if good behavior under the first sentence.

Are these plea deals fair to the accused? Are they fair to the victim? Are they fair to the audience?

In New Hampshire, case law governs plea bargains. “…(They) have been openly recognized as a proper part of the criminal process since 1970, even though they have existed….. since time immemorial.” (State vs. Manoly., 1970) This is also the case in practically all other states.

Negotiated pleas and plea bargains are used by both defendants and prosecutors. Why?

Obviously, if a plea can be satisfactorily negotiated, the expense of litigation can be avoided.

If the crime traumatized a victim, a trial sometimes further aggravates that trauma. Some victims refuse to testify, or fear the thought of facing their perpetrator again. Think – if you were brutally raped, or beaten, or terrorized for hours, pistol whipped, etc., how would you feel going through judgment for hours or days, seeing the person who offended you? Would you be able to face the incessant questioning of lawyers, about the incident, about your personal life – and with the public watching – with the possibility of the details in the newspaper and on television?

So, would you be grateful that a plea deal was made, and that the person who committed the crime would be punished without further involvement on your part?

Or, on the other hand: What if you wanted to testify against this person and you wanted to see him or her receive the full sentence under the law, and then the state offered a plea bargain? What if that sentence could be 10 to 20 years if he/she was convicted by a jury, and the plea bargain was 2 to 4 years? Would you feel cheated? Would the public feel cheated, thinking that this person should have had the full weight of the law applied, and should not have been able to receive a shorter sentence just for pleading guilty?

In anticipation of this article, I asked an inmate at the Concord Men’s Prison how he felt about plea deals. (He refused one in his case, and was sentenced to triple the plea deal.) He said, “You’re being punished for exercising your right to a trial if you’re offered a plea deal of 2 years, and they tell you you’re going to get up to 20 years if you lose at your trial.” In other words, “If you insist that you have a right to trial, we will convict you and give you twice, thrice, etc. more years in prison than if you accept our offer.”

Atty. Michael Skibbie, former head of the Office of the Public Defender in Concord. NH, stated the following to a legislative committee:

“The overwhelming majority of cases in this country and in New Hampshire are resolved by plea, not trial. Nationally 80 or 90% of criminal cases are resolved by plea.” “Less than 10% of the criminal cases we (Public Defender) handle actually go to a jury trial.”

He went on to explain why this happens, including the difficulty of trying to predict how a jury would react to the evidence, the defendant and the alleged victim. He said, “I’ve won cases I was sure I was going to lose, and I’ve lost cases I was sure I was going to win. And most experienced criminal defense attorneys would tell you the same.” And prosecutors could say the same. “Obviously, both sides take risks when they go to trial.”

I mentioned above that settling a case through plea bargaining avoids huge expenses. Atty. Skibbie also stated how plea deals relieve the court of a monumental amount of cases. Imagine – if 90% of criminal cases are now pending and that stopped! If you think the court system is clogged now with a backlog of cases, (which it is), think how it would be with 9 times as many cases!

He further commented on the justification of the prosecution of higher sentences if the accused insisted on a trial and was then convicted. One reason is the impact the trial has on victims and other civilian witnesses. Likewise, the lawyer of the accused is encouraged to negotiate a plea as “… this will typically be either a modification of charges, a recommendation of a sentence that the accused will perceive as something better than he or she would receive after he or she would receive a trial, or both.” He said that in sexual cases, there are additional factors for both sides to encourage plea bargaining.

“First, from a prosecutor’s perspective, these cases are associated with greater uncertainty….” “They are difficult cases for both sides. Even when the prosecutors get convictions, the reversal rate is higher than some other cases. ” From the defense side, “The penalties after conviction, after conviction, are very, very high. If you’re a 20-year-old man, and you’re facing maybe 20 years in prison if you lose this case, there are a lot of people who think, that this is the end of one’s life – to be in one’s 40s.”

Referring to the difficulties of the victim having to talk about embarrassing and private matters during sex crimes trials, he said, “But on the other hand, there is probably nothing that is more difficult (for the accused) to admit in a public courtroom than a sexual offense”, (in the case of a plea bargain) .

Another big factor in sexual assault cases, is the potential for the accused to have to register every year for the rest of his/her life as a sex offender. If the prosecutor offers a plea deal that still requires this provision, many defendants agonize over agreeing to the plea. Some say “no”, preferring to risk judgment. This “registration aspect” is unique to sexual offenses. If you rob a bank, brutally assault someone, kidnap a child, or even keep the police “at bay” with an assault rifle, you can “police plea”, and when you’ve served your time, and are released, you’re “through” with the system .There is no annual registration at the police station and no easy way for the public to find out that you have been imprisoned for a crime.

If you move to another community or state, you can become virtually anonymous regarding your past crime history.

Would you accept a plea bargain? Would it be an easy decision for you? Atty. Skibbie put it quite succinctly: In a plea bargain, “you’re talking about 5 years in prison versus 10 years in prison—or 7 years in prison versus 20 years in prison.”

“It’s very, very difficult to make a decision to go to prison, even for a relatively very short period of time.”

And if you are innocent? Say they offer you two years as a plea deal, with a possible 20 if you lose at trial. Do you forget that you are innocent, and accept the plea, because you have heard that justice is not always fair, and you can be wrongly convicted?

I’ll leave you with two more case-fact cases in New Hampshire. These are direct quotes from the convict.

(one) “I’ve been a prisoner…since 1995. The day my trial started, I was offered a plea bargain of 4 years….the bargain was only on the table until the victim took the stand. Because I was innocent, I went to trial…” “I was convicted on 7 of the 12 charges. The judge sentenced me to 18-1/2 to 37 years, with 14 to 28 more years suspended. a maximum of 65 years.” “If I had been guilty, I would have easily taken the plea, completed the sex offender (treatment) program, and as of today I would be living back in the community.”

(other) “The prosecutor offered me a 5-year prison sentence… (as a plea).” “I refused…knowing my innocence (and)…wanted to clear my name (at trial).” “On January 30, I was found guilty.” “The judge sentenced me to 33-1/2 to 67 years.”

It is difficult to comment on these specific cases unless one has read more about those cases. But they are all examples of our litigation system. That the state could offer such a short sentence under plea, and then give such a long sentence if the case went to trial,

Is any crime less heinous because the perpetrator agrees to a plea bargain? If the prosecutor is certain that the defendant is guilty, is he doing society a disservice by offering that offender a very light sentence in exchange for a much stiffer sentence after conviction by a jury?

The plea bargaining system is indeed an interesting aspect of criminal justice, and one, I think, that may never truly be fair to everyone or even understood.

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