Aaron Swartz and the Corrupt Practice of Plea Bargaining – Forbes

I’ve always felt that plea-bargaining was bent. This explains why:

If Ortiz thought Swartz only deserved to spend 6 months in jail, why did she charge him with crimes carrying a maximum penalty of 50 years? It’s a common way of gaining leverage during plea bargaining. Had Swartz chosen to plead not guilty, the offer of six months in jail would have evaporated. Upon conviction, prosecutors likely would have sought the maximum penalty available under the law. And while the judge would have been unlikely to sentence him to the full 50 years, it’s not hard to imagine him being sentenced to 10 years.

In this hypothetical scenario, those 10 years in prison would, practically speaking, have consisted of six months for his original crime (the sentence Ortiz actually thought he deserved) plus a nine-and-a-half-year prison term for exercising his constitutional right to a trial.

Our Constitution guarantees criminal defendants a wide variety of rights, including the right to a jury of one’s peers, the right to counsel, the right to confront one’s accusers, a privilege against self-incrimination, and so forth. The Supreme Court would never allow a judge to impose a stiffer sentence on a defendant because he took the Fifth Amendment, asked to confront his accuser, or hired an attorney. But none of these rights matter if the defendant never gets to trial. And thanks to the legal fiction that plea bargaining is a voluntary negotiation between the prosecutor and defendant, our justice system effectively gives people dramatically longer sentences for exercising the right to have a trial at all.

Thanks in part to this kind of coercion, more than 90 percent of defendants waive their right to a jury trial. For the majority of defendants, then, the plea bargaining process is the justice system. As a result, prosecutors wield an immense amount of power with very little accountability.

It’s not surprising that Ortiz doesn’t see anything wrong with this system. Powerful people rarely see their own power as problematic. But the rest of us should be outraged—not just by Ortiz’s conduct, but by a system that treats thousands of defendants less famous than Swartz the same way.

via Aaron Swartz and the Corrupt Practice of Plea Bargaining – Forbes.

4 Replies to “Aaron Swartz and the Corrupt Practice of Plea Bargaining – Forbes”

  1. Perhaps there should be a requirement for the judge to have a record of all plea bargain offers that were made and what the terms were.

  2. Two people are charged with crimes. One of them is innocent, and the other is guilty, but assume the cases against them are about equally strong. The guilty person knows is guilty, thinks he is likely to be convicted (as he is guilty), and so does a plea bargain. The innocent person insists upon a trial, as he is innocent and he has faith in the system to acquit him because, well, he is innocent. However, as it happens the trial gets it wrong and he is convicted. He gets a stiffer sentence than the guilty person who plea-bargained.

    So one consequence of plea-bargaining. Innocent people wrongly convicted get longer sentences than guilty people do. That’s a strong enough argument against the practice in itself.

  3. Plea bargains also get a lot of innocent people convicted of crimes they didn’t commit. Some gets wrongly accused of a crime, and their defense lawyer tells them that a jury trial is always a crap shoot. The plea offer is 1 year, suspended sentence. The maximum sentence for the charge is 5 years. So, here are the choices: 1. Go to trial, spend huge amounts of money, and (because you are innocent) maybe 80% chance you walk, 20% you go to jail from 1 to 5 years. 2. Take the deal, stop spending money today, walk today.

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