Bullying Prosecutors Don't Serve Justice

Megan McArdle is a Bloomberg View columnist. She wrote for the Daily Beast, Newsweek, the Atlantic and the Economist and founded the blog Asymmetrical Information. She is the author of "“The Up Side of Down: Why Failing Well Is the Key to Success.”
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Outside the Beltway has an excellent, excellent piece on the way "overcharging" is used to coerce guilty pleas. I can't really append enough "excellents" to its description. Everyone needs to read it:

For example, when United States Army veteran Ronald Thompson fired two warning shots into the ground, he intended to scare off his friend's grandson, who was attempting to enter her home after she denied him entry. He never imagined his actions would leave him facing decades in prison.

He was charged "with four counts of aggravated assault with a firearm" under Florida's 10-20-Life mandatory minimum gun law. Prosecutors used the minimum twenty years in prison he faced to try to avoid a trial by asking him to accept three years in prison. While the deal remained on the table throughout the trial, he was ultimately convicted and sentenced to twenty years in prison.

Ronald Thompson's case, and so many others, reveals that prosecutors don't think that twenty-year sentences for shooting into the ground constitute justice. Why else would the plea bargain stay on the table.

The case is an example of the trial penalty in action. Utilized by prosecutors to scare accused citizens into pleading guilty, the trial penalty threatens severe sentencing outcomes if found guilty at trial compared to the plea. And the the last thirty plus years have shown that it works.

I blogged about it because I think people should read about it. Unfortunately, I don't know what we should do about it. I mean, I know what to say about it: This sort of thing is awful, and prosecutors shouldn't do it. It's one thing to plead a murderer down to a lesser offense to avoid the expense and risk of a trial, or maybe to secure testimony against confederates. It's quite another to threaten an obviously ridiculous penalty in order to get someone to plead guilty to a much lighter offense.

But institutionally, I don't know how you set up the system so that this can't happen. The criminal justice system could not function if we got rid of plea bargains (no, not even if we also got rid of the drug war, without which there plenty of thefts and assaults and rapes to keep the system busy). But as long as pleas exist, this sort of abuse will be possible.

One way we could improve things is to get rid of mandatory minimum sentences. But they're extremely politically popular. So I'm not sure I have much to propose in the way of institutional reform, other than shaming prosecutors who play these sorts of games.

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To contact the author on this story:
Megan McArdle at mmcardle3@bloomberg.net