Plea Bargains – No Bargain For Anyone?

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

A good deal for the state as plea bargains avoid an expensive trial?

Here are some plea bargains offered vs. actual sentences meted out in that I became personally aware of. I am omitting the last names of those mentioned.

Albert -sexual assault; was offered a plea bargain of reducing the felony to a misdemeanor, no mandated sex offender treatment, no annual registering as a sex offender, and a jail term of 4 to 6 months. He refused, saying, “I’m not guilty”. After 2 trials, (the jury deadlocked in the first trial-l0 for innocent; 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 stipulation 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, (i.e. a possibility of 15 years, 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 bargains fair to the defendant? Are they fair to the victim? Are they fair to the public?

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

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

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

If the crime has traumatized a victim, a trial sometimes further exacerbates that trauma. Some victims refuse to testify, or dread 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 a trial for hours or days, seeing the person who offended you? Would you be able to face the unrelenting questioning by attorneys, about the incident, about your personal life-and with the public looking on-with the possibility of the details in the newspaper and on TV?

So, would you be thankful that a plea bargain was struck, and that the person who committed a crime would be punished without any further involvement by you?

Or, on the other hand: What if you were willing to testify against this person and you wanted to see him or her receive the full penalty under the law, and then the state offered a plea bargain? What if that sentence could have been 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 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 in Concord Men’s Prison how he felt about plea bargains. (He had refused one in his case, and had been sentenced to triple the plea bargain.) He said, “You are being punished for exercising your right to a trial, if you are offered a plea bargain of 2 years, and they tell you that you will 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, three times, etc. more years in jail than if you take our offer.’

Atty. Michael Skibbie, former head of the Public Defender’s Office 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 by trial. Nationally 80 or 90% of felony cases are resolved by plea.” “Fewer than 10% of the felony cases that 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 have won cases that I was sure I’d lose, and I’ve lost cases that I was sure that I would win. And most experienced criminal defense lawyers would tell you the same.” And prosecutors could say the same. “Obviously, both sides are taking a risk when they go to trial.”

I mentioned above that settling a case by plea bargain avoids huge expenses. Atty. Skibbie also stated how plea bargains relieve the court of a monumental amount of cases. Imagine-if 90% of felony cases are being plea bargained now and that stopped! If you think the court system is clogged now with backlogged cases, (which it is), think of what it would be like with 9 fold more cases!

He further commented about the prosecution’s justification of higher sentences if the defendant insisted on a trial and then was convicted. One reason is the effect the trial has on victims and other civilian witnesses. Likewise, the defendant’s attorney is motivated to negotiate a plea as “…that typically is going to be either a modification of charges, a recommendation of a sentence that the defendant is going to perceive as something better than he or she would get after trial, or both.” He said that in sex cases, there are additional factors for both sides to motivate plea bargaining.

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

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

Another big factor in sexual assault cases, is the potential for the defendant having to register every year for the rest of his/her life as a sex offender. If the prosecuting attorney offers a plea bargain which still mandates this provision, many defendants agonize about agreeing to the plea. Some say `no’, preferring to take their chances at trial. This `registration aspect’ is unique to sex offenses. If you rob a bank, brutally assault someone, kidnap a child, or even hold the police `at bay’ with an assault rifle, you may `cop a plea’, and when you have served your time, and are released, you’re `through’ with the system. There’s no registration every year at the police station and no easy way for the public to discover that you had been incarcerated for committing a felony.

If you move to a different community or state, you can virtually become anonymous as far as your past crime is concerned.

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

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

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

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

(one) “I’ve been an inmate…since 1995. The day my trial began, 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 counts. The judge sentenced me to 18-1/2 to 37 years, with 14 to 28 more years deferred. I could conceivably serve a maximum of 65 years.” “If I was guilty, I would have easily taken the plea, completed the sex offender’s (treatment) program, and as of today, I would be living back in the community.”

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

It’s difficult to make comments on these specific cases unless one has read more about those cases. But they are all examples of our plea bargain system. That the state could offer such a small sentence under a plea, and then hand down 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 the accused is guilty, is he doing a disservice to society by offering that offender a very light sentence vs a much stiffer sentence upon conviction by a jury?

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