The Declaration of Independence - 1776
The Articles of Confederation - 1777
The Constitution for the United States, Its Sources and Its Application - 1789

Sui Juris – The Problem with Plea Bargaining
by Steven Silberblatt

QUESTION: To be "voluntary" within the meaning of the Fifth Amendment, a statement by a criminal defendant must be a product of free will, unencumbered by threats or promises. Coercion of any kind, whether physical or psychological, is prohibited, and a statement found to be involuntary will (theoretically, at least) be suppressed.

That being the case, why is the Criminal Justice System permitted to make promises (of leniency, e.g.) and threats (of maximum time after a trial conviction) in order to induce defendants to give up all of their constitutional trial rights, including the right to remain silent? 

How can the Criminal Justice System get away with violating the very constitutional rights it functions to protect in order to conduct its everyday business of plea bargaining?

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ANSWER: In theory, the fact that a defendant is in a court environment, surrounded by all the trappings of due process (including the creation of a formal record for appellate review, a judge sworn to uphold the law, and counsel for his defense) protects him from the possible abuses which might take place in the back room of a precinct station house, were the police allowed to engage in the same "bargaining" process in order to elicit confessions.

The role of attorney is critical to justify what the system does; -- in theory, if there were something legally or factually wrong with the process, the attorney would be there to register an objection and to prevent the plea from being entered.

In fact, however, the vast majority of defendants plead guilty because the system makes them "an offer they can't refuse," much like the mob. The system functions like a gigantic extortion racket in which the attorney plays the role of "bagman," the person who transmits the threats (under the guise of legal advice) and collects the payment (the plea).

To the extent that the attorney loses bail arguments or pre-trial motions to suppress, a defendant's faith in the powers of his lawyer and/or the integrity of the system is eroded to the point where resistance seems futile.

Lengthy pre-trial incarceration further weakens and demoralizes a defendant and increases the coercive aspects of plea bargaining (particularly where, as in the case of many indigent defendants unable to post bail, taking a plea is the only sure way to regain personal freedom).

The system "gets away" with it because there is no economic alternative, not because anyone really believes the justifications recited above. Formal procedural justice (the complex rules which govern criminal trials) was never intended to cope with the volume of cases now being sucked into the vacuum cleaner of the system.

As more conduct is statutorily criminalized, many statutes clearly un-constitutional, and more defendants must be processed, criminal trials are a luxury out of price reach which society can no longer afford, except in the most serious or unusual case.

We function schizophrenically; our legal ideology is bound to a cherished system of values we can no longer afford, and are unwilling therefore to finance.

Like a Hollywood set, our present system presents to the public a facade of "rights" while the same system systematically violates those rights as the only means to insure its own survival.

Perhaps the only solution is to return to the simplicity and reasonableness of the Constitutional Citizen's Common Law Court.

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On the Web April 20, 2006