Capitalism and plea bargaining
So today I heard a very well-substantiated rumor that, henceforth, the Cuyahoga County Prosecutors office will no longer reduce offenses involving guns. No dropping gun specs, no dropping a CCW or weapons under disability a degree by dragging in the attempt statute.
You can debate the wisdom of this policy. It might clog up the courts and force cases to trial which would otherwise have been resolved by plea. Or it might sends a clear message to the community that gun crimes will not be tolerated, and that will have a deterrent effect on gun crimes.
But here's a different question: is it a good idea to allow a county prosecutor the power to do that sort of thing?
I wrote a post a number of years back, with the basic thesis being that I'd rather have a fair prosecutor than a fair judge, because the prosecutor has far more discretion than any other actor in the justice system. Along with the charade of the grand jury, he makes the decision about what charges to seek, and when it comes to plea bargaining, he's got the final call.
This is, according to some law review article I didn't get through, the Free Market Theory of Plea Bargaining: two people bargain over the defendant's liberty, and eventually a deal is struck.
And as an economic model, it's strictly laissez-faire. There used to be some regulation of plea bargaining, but no more. No court will question a prosecutor's decision on what charges to bring, and very rarely will a court reject a plea bargain. In fact, the tendency is in the opposite direction: the Federal rules specifically forbid the judge to have any participation in plea-bargaining, and some cases have been reversed because judges got too involved. I'd bet that at least a third of the 34 judges here will not discuss plea bargaining except on the record, and a lot of them won't talk about it all.
And while the U.S. Attorney General does have some control over district attorneys -- Holder, for example, instituted a number of policies limiting the DA's handling of drug cases -- there's no similar restraint on county prosecutors in Ohio, or most other states. The only ones they're answerable to are the voters, and perhaps the best indication of how much of a check that is that since 1957, Cuyahoga County has had four prosecutors. (Factoid: the Cleveland Browns have had 17 coaches in the same time, despite not existing for three of those years.) As I said, no one questions Tim McGinty's right to institute the no-reduction-on-gun-crimes policy, any more than they questioned his right to greatly reduce the number of death penalty cases his office files.
But that returns to the question of whether that's a good thing. Laissez-faire economics works fine as long as the two parties have generally equal bargaining positions. Do they?
There's a tendency to think that the prosecutor's in a superior position. Like I tell my clients, there are a lot of crappy things that can happen to you in life, but getting charged with a felony is in the top five. When the government gets together with its law enforcement agencies, its crime labs, and its other resources -- if the prosecutor's office here were a law firm, it would be the fourth largest one in the city -- and sets its sights on you, it's time to sweat. There's an argument that the Draconian sentences, especially in the Federal courts, are intended to strengthen the prosecutor's bargaining position. If a plea and a proffer are the only ways to get out from under a mandatory minimum twenty years, that's going to be a powerful inducement to give a plea and proffer.
It's not all one-sided, though. The defendant has a variety of rights to protect him, and some of those rights -- confrontation and jury trial -- have been expanded in the last decade or so. And the government has the burden of proving guilt beyond a reasonable doubt. I've had conversations with jurors after acquittals where they told me they thought my guy did it, but the State just didn't prove it.
But this obscures the real issue. The most important attribute of the criminal justice system is accuracy: we want the jury to get it right. We don't want guilty people going free, and we definitely don't want innocent people getting convicted. The jury's not infallible, as the occasional exoneration shows, but the relative infrequency of that event shows that they're pretty good at doing what they're supposed to do.
That's trial, though. The question is whether plea bargaining achieves the same result: arriving at a conclusion that achieves some measure of justice. That can be measured on the occasions when a defendant turns down the deal, and we can see whether he "beats the mark" -- whether he gets acquitted, or gets less time than he would've under the plea. But trials are rare, and when we get to plea bargaining the issue is complicated by the fact that the economic model takes over again: the goal of the two parties is not to arrive at a bargain which reflects the defendant's legal or moral culpability, but at one which balances the prosecution's desire to obtain a conviction and the defendant's desire to minimize the consequences he might face. That this might have little to do with what the defendant actually did or didn't do is perhaps best encapsulated by what a judge once told me: "In this county, innocence is a misdemeanor."
As far as the new gun policy is concerned, my experience with prosecutor's policies is that they'll go with the policy when it suits them, and will gladly abandon it when it doesn't. I can pretty much guarantee if they have a crappy case with a gun spec, the gun spec's not going to stand in the way of getting the case resolved.