Lawprof misses the boat on coercive plea bargaining

Pepperdine University Law School prof Harry M. Caldwell proclaims in a recently published law review article (click on this link and then click on "download") that coercive plea bargaining is the scourge of the criminal justice system.

He decries prosecutors overcharging defendants both horizontally and vertically in order to gain leverage at the bargaining table. In his view of the trenches from the ivory tower he sees that as the worst excess of our criminal (in)justice system.

Prof. Caldwell uses a game theory analysis to take us step-by-step through the bargaining process. He portrays the bargaining process as one in which both sides attempt to guess how the other side will receive their offer or demand. Well, I've got news for Mr. Caldwell, defendants don't really spend too much time worrying about how the prosecutor will react to their offer to plead that day in exchange for time served or a reduced charge.

Mr. Caldwell assumes that all players in the game act as rational beings. That baseless assumption shapes the foundation of his theory. Defendants don't think in stark cost-benefit terms when trying to decide what to do on their cases. They are more concerned with getting out of jail, getting back to work and sleeping in their own beds.

And more than overcharging, it's the deprivation of those needs that creates the coercive effect of plea bargains. If he spent any time in the trenches, Mr. Caldwell would know that the most coercive device in our criminal (in)justice system is bail. If a defendant can't post bail, he isn't going anywhere until his case is resolved. He knows it. The defense attorney knows it. And, most importantly, the prosecutor and judge know it.

Prosecutors wave that get out of jail card at defendants in the holdover every morning. They do it because they know they're going to get bites. They know that some of those folks in the holdover tank will take the offer just so they can get out of jail and back to a life of normalcy.

There's no overcharging involved in those cases. The prosecutor holds the key to the cell and everyone in the room knows it. Judges routinely ignore the law and approve bonds based on a "bond schedule" that doesn't take into account the the purpose of bail is to ensure the appearance of the defendant in court.

The courts are supposed to take into account the defendant's ability to pay when setting bond - but that is rarely a consideration. It's much easier to clear cases off the docket when the defendants are sitting behind bars.

I hate to burst Mr. Caldwell's bubble, but giving a statewide office the authority to review charging decisions by local prosecutors won't do a damn thing to prevent coercive plea bargaining. You're living in a dream world if you think an official elected statewide is going to come down on local prosecutors because they overcharged a guy on a dope or assault case.

The antidote to coercive plea bargaining is to reform the bail and pretrial release systems. We hold far too many defendants behind bars than we need to. If we're going to use bond schedules, they should just be advisory - judges need to take into account the ability of a defendant to post bond. A person sitting in a jail cell will be more likely to accept a deal for a reduced charge for a crime he didn't commit than is a person sitting out in the gallery answering the docket.

H/T CrimProfBlog