What To Do With A 1 1/2 Year Old Plea Bargains – No Bargain For Anyone?

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Plea Bargains – No Bargain For Anyone?

Plea finds. A good deal for the culprit?

A good deal for the state because pleas avoid an expensive trial?

Here are some of the pleas offered versus the actual sentences I became personally aware of. I leave out the surnames of those not mentioned.

Albert -sexual violence; he was offered a plea deal to reduce the offense to a felony, no sex offender treatment, annual sex offender registration and a 4-6 month prison sentence. He refused, saying, “I’m not guilty.” After 2 trials (jury deadlocked in first trial-10 for not guilty; 2 inconclusive), another jury convicted him and he was sentenced to 7-1/2 to 15 years.

Michael, sexual assault; he was offered a year-long plea deal with the condition 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 (so a total of 15 years possible).

Carl, sexual assault; was offered 2-6 years as a plea deal. He refused, claiming his innocence; convicted and sentenced to 7-1/2-15 years plus 6-12 years of probation if of good behavior under the first sentence.

Are these arguments fair to the defendant? Are they fair to the victim? Are they fair to the audience?

In New Hampshire, case law governs pleadings. “…(They) have been openly recognized as a proper part of the criminal process since 1970, although they have been around…..since other times.” (State vs. Manoly., 1970) This is also the case in virtually all other states.

Both defendants and prosecutors use negotiated pleas and pleas. Why?

Clearly, if the claim can be satisfactorily negotiated, the costs of litigation can be avoided.

If the crime has traumatized the victim, the trial sometimes makes the trauma even worse. Some victims refuse to testify or fear the thought of facing their offender again. Think about it – if you were brutally raped, beaten or terrorized for hours, pistol whipped, etc., how would you feel if it took you hours or days to see the person who hurt you? Would you be able to face the lawyers’ relentless questioning about the case, your personal life – and public viewing, if possible, in newspapers and on television?

So would you be grateful that a plea deal was made and that the person who committed the crime was punished without you having to intervene?

Or on the other hand: What if you were willing to testify against this person and you wanted to see him receive the full punishment of the law, and then the state offered a plea deal? What if the sentence could have been 10-20 years if he was tried by a jury and the plea deal was 2-4 years? Would you feel cheated? Does the public feel betrayed that they thought this person should have applied the full force of the law and not received a shorter sentence just for pleading guilty?

In anticipation of this article, I asked the jailer at Concord Men’s Correctional Facility what he thought of the petitions. (He had declined one of his cases and had been sentenced to a triple plea bargain.) He said, “You’re being penalized for exercising your right to a trial if you’re offered a two-year plea deal, and they say you’ll get up to 20 years if you lose your trial.” In other words, “If you insist that you have a right to a trial, we will convict you and give you twice, three times, etc. more prison time than if you accept our offer.”

Atty. Michael Skibbie, former director of the Concord Public Defender’s Office. NH reported the following to the legal committee:

“The vast majority of cases in this country and in New Hampshire are resolved by plea, not trial. Nationally, 80 or 90% of criminal cases are resolved by plea.” “Less than 10% of the criminal cases we (the Public Defender) handle 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’ve won cases I was sure I was going to lose, and I’ve lost cases I was sure I was going to 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 the case on the basis of a petition avoids huge expenses. Atty. Skibbie also noted how the pleas relieve the court of a huge backlog of cases. Imagine if 90% of crimes are negotiated now and it ends! If you think the court system is now bogged down with a backlog of cases (which it is), imagine what it would be like if there were 9 times as many cases!

He also commented on the prosecutor’s reasoning for higher sentences if the defendant requested a trial and was then convicted. One reason is the impact of the trial on victims and other civilian witnesses. Likewise, a defendant’s attorney is motivated to negotiate a plea because “…which is typically either a change in charge or a recommendation for a sentence that the defendant prefers to what he would receive after trial, or both.” He said that in sex cases, both sides have additional factors that motivate pleas.

“First of all, from a prosecutor’s point of view, there is more uncertainty in these cases…” “They are difficult cases for both parties. Even if prosecutors get convictions, the reversal rate is higher than in any other case.” From the defense side: “The sentence after conviction is very, very high. If you’re a 20-year-old man and you’re facing potentially 20 years in prison if you lose this trial, there are a lot of people out there who think that’s where their life ends – to be 40 .”

Referring to the victim’s difficulty talking about embarrassing and private matters during sex crime trials, he said, “But on the other hand, there’s probably nothing more difficult for (a defendant) to admit to in a public courtroom than a sex crime” (if there’s a plea deal).

Another big factor in sex crime cases is that the accused has to register as a sex offender every year for the rest of his life. If the prosecuting attorney offers a plea deal that still requires compliance with this provision, many defendants will suffer the painful admission of a plea. Some say “no” and prefer to take the chance of a trial. This “registration aspect” is unique to sex offenders. If you rob a bank, brutally assault someone, kidnap a child, or even hold off a police officer with an assault rifle, you might get a ‘plea stop’, and once you’ve served your time and are released, go ‘through’ the system again. There is no registration at the police station every year, and there is no easy way for the public to find out that you have been incarcerated for a crime.

If you move to another community or state, you can effectively become anonymous about your past crime.

Do you accept the petition? Would that be an easy decision for you? Atty. Skibbie put it pretty succinctly: In a plea agreement, “you’re talking about 5 years in prison versus 10 years in prison or 7 years in prison versus 20 years in prison.”

“It’s very, very difficult to make the decision to go to prison, even for a relatively very short time.”

And if you are innocent? Let’s say they offer you two years as a plea deal, and a possible 20 years if you lose at trial. Do you forget that you are innocent and accept a plea because you have heard that justice is not always fair and you can be wrongly convicted?

I’ll leave you with two more cases – real cases in New Hampshire. These are direct quotes from the convict.

(one) “I have been incarcerated… since 1995. The day my trial started I was offered a 4 year plea deal… the deal was just on the table until the victim came forward. Because I was innocent I went to trial…” “I was convicted 7 out of 12 of the charge. The judge sentenced me to 18-1/2-37 years with 14-28 years suspended. I could possibly serve the sentence. a maximum of 65 years.” “If I was guilty, I would have easily taken the plea, completed the sex offender (treatment) program and as of today I would be living back in the community.”

(second) “The prosecutor offered me 5 years in prison…(as a basis).” “I refused … knowing my innocence (and) … wanting to clear my name (at trial).” “On January 30, I was found guilty.” “The judge sentenced me to 33-1/2-67 years.”

It is difficult to comment on these specific cases unless one has read more about them. But they are all examples of our plea bargain system. That the state could offer such a small sentence on a plea deal and then give such a long sentence if the case went to trial,

Is any crime less heinous because the offender agrees to a plea deal? If the prosecutor is certain that the accused is guilty, is he doing society a disservice by offering this criminal a very light sentence compared to a much harsher sentence if convicted by a jury?

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

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