Civil Affairs: Plea deals


Last night, I was reading The Economist when I came about a series of editorials and articles on what was called the great tragedy of the American criminal justice system: plea deals. The series bemoaned the rise of these agreements, which now — by some estimates — account for nearly 95% of adjudications in the system. Castigated as unreliable and prone to abuse, the newspaper suggested that perhaps some of the prosecutors’ aggrandized power be shifted to Judges. In a somewhat quixotic suggestion, they even argued that the plea deal itself should be abolished –though they quickly admitted the idea as infeasible.

In less ambitious fashion, the newspaper then suggested the outright banning of mandatory minimum sentencing (commonly used as leverage in plea deals), as well as introducing more judicial control over the plea deal process. Both are somewhat good ideas, particularly the former. But they are not realistic in today’s day and age.

The newspaper, as it prefers to be called, made quite a spot-on point in lamenting the almost biblical power that prosecutors now hold in the courtroom, arguably even rivaling that of the judge in some instances. I suppose that this is a bad thing, but perhaps not as bad as insinuated. A few years ago, I made the somewhat strange argument that the modern District Attorney, in some ways, resembles old Courts of Chancery (equity). I stated that, by applying prosecutorial discretion in the ubiquitous plea deal, the DA is able to live in the grey of a black and white world, and otherwise can be warm when the letter of the law is cold and aloof.

Perhaps my thinking back then was a little misguided, as I guess I should have thought bigger. It is an interesting idea to humor the idea of the DA being stripped of those equitable powers, and having them restored to the judges. Come to think of it, it is probably the more noble solution, though present realities make it effectively impossible.

The key problem here is that taxpayers — those who pay for the courts to function — willfully continue being the dark about how much it costs to provide an individualized and fair court process to every single defendant, which I admit is not happening now. Simply put, a lot of people go through the process every year, and if we continued having similar ratios of court staff to defendants as we may have had in the past, taxes would go up to pay for the additional courts and lawyers.

Just in Harris County, the number of Criminal Courts should probably double in order to give many of the defendants the attention they deserve. Currently, criminal courts are so swamped in Harris County that the number one priority all too often is expediency. In the name of judicial economy, simplifying the docket becomes a top priority. I’m not faulting the courts or judges for this; without keeping the docket under control, everyone loses.

Prosecutors are obviously not numerous enough to prosecute every single case. Judges are not numerous enough to preside over them either. Hence, a solution is formed for the overabundance of work coupled with the dearth of lawyers: the plea deal. It’s not pretty, but it keeps the wheels moving in courthouses all across the country. If we are getting serious about dumping it, we have to remember the fiscal consequences. Given this State and this country’s irresponsibility with fiscal affairs, I doubt we would be willing to make any hard choices.