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AlexKonikFirstPaper 8 - 28 Jun 2012 - Main.AlexKonik
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The Drug Prisoner’s Dilemma | | | Yes, I suppose academic BS does sometimes serve a purpose, though I think in this case your suggestion has about zero chance of ever leading to a positive outcome. I'm curious - I know you're a stout defender of individual liberty, but you also detest the current state of the criminal justice system. How would you feel about an abolishment of plea bargains? You would be taking away the "right" of the defendant and the prosecutor to enter into a freely-formed contract, but civil law countries find this idea of justice as a "contract" to be abhorrent, and almost none of them allow pleas. Your thoughts?
-- JaredMiller - 28 Jun 2012
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> | That's a point I've thought about a little bit - should plea bargains be upheld? When we were studying contracts, I thought there were some ways of invalidating plea bargains. First, the deals are often times coercive. Second, prosecutors threaten litigation. Restatement 2nd 176(1) (and (1)(b) specifically) should allow many to be void because they are the result of improper threats. Then I asked, are they really voluntary? A professor at Duke talks about euvoluntary exchange, or truly voluntary exchange. He lists six requirements for an exchange to be truly voluntary. The interesting ones here are first, coercion. Second, absence of regret. Third, disparity in parties' Best Alternative to A Negotiated Agreement (BATNA). I think the exchange is pretty clearly not euvoluntary, but I don't think there is regret. It does not appear, to me at least, that criminals later regret the plea. They honestly think that is their best deal, probably because it is.
Watching my judge's criminal calendar each Friday has been a really enlightening experience. Sentencing is a rough process, but pleas are especially painful. The judicial process of accepting a plea as a true and honest admission of guilt is meant to filter out pleas that are not in the defendant's best interest. There is a whole series of questions, all followed by "now, do you really understand? You know that you don't have to do this - are you happy with your lawyer?" The State has to read the elements of the crime and state how they are able to prove them beyond reasonable doubt. It is a big ordeal, but I don't think many pleas are refused. The judge is supposed to reject the plea if she does not think the admission is true and honest.
I don't know that there is a "right" to contract in the criminal prosecution context. I think too many of the elements of free association are absent to really call that a right. I think it's a convenience. I think the ideal solution is legislative. I get at this in the paper a bit but call it hopeless (funny, you think my proposal is hopeless. Occupy Prison isn't making big waves in the Big Easy?). Having a system of sane punishments would ease the burden on courts and ease the burden on defendants to plea out of fear.
-- AlexKonik - 28 Jun 2012 |
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