ESCAPE OF THE GUILTY
Ralph Adam Fine
New York: Dodd, Mead, 1986
272 pp., $17.95
If there's anyone worse than criminals, it must be those who run the criminal justice system. At least that's the message that the media has been sending us for some years. Judges, prosecutors, defense lawyers, and court officials are all apparently locked in some great conspiracy to let criminals get away with their crimes and launch fresh assaults on innocent citizens. These media attacks do not explain why all these officials and lawyers should have such absurd or malevolent goals. Are they all unutterably stupid? Or hopelessly wrong-headed in their policies? Totally lazy and inefficient, perhaps? Every commentator points to the obvious remedy - bad and dangerous people should be put in prison for a long time. Why on earth doesn't this happen?
Ralph Fine, a lawyer who has been a journalist and a television program host and is now a circuit judge in Wisconsin, has written a lively, well-informed, and entertaining book offering a fresh review of the iniquities of our criminal justice system. He examines several features that he takes to be central to the system's failure. The chief of these, to which he devotes a large part of his book, is the practice of plea bargaining. This is good place to start since nobody has a good word to say about plea bargaining, but hardly anyone does anything about it.
Plea Bargaining
Plea bargaining refers to a system under which, in return for pleading guilty, the defendant receives some reward. This may be a reduction in the level of the charge against him, perhaps including dropping the possibility of filing additional charges - charge bargains. Or, it may take the form of a promise by a judge to impose a particular sentence, or an agreement by a prosecutor to make a favorable recommendation on a sentence - sentence bargains. In a large number of cases this means that the defendant will serve no prison time at all, except for the time he may have been confined while awaiting disposition of his case.
The evils of plea bargaining are well documented by Fine. The practice leads to sentences that often seem unrelated to the gravity of the offense committed, allowing dangerous offenders to be released immediately or much too soon. The system may also pressure the innocent into pleading guilty since a plea offers immediate release, while maintaining innocence may entail remaining in jail and risking the uncertainties of a trial. Plea bargaining also leads to inequalities in sentencing, with enormous reductions going to those who plead, while those who are convicted after a trial will likely be sentenced much more severely. This can be construed as imposing a penalty for exercising the constitutional right to a trial, and that would itself amount to a violation of the Constitution.
Why is such an obnoxious practice tolerated? A case can be made for a modified version of plea bargaining, or, at any rate, for offering some inducements to plead. Most defendants are guilty. Thus, it is in the public interest to avoid the uncertainty of a trial and to submit the defendant to a swift disposition, rather than risk his being at liberty. Also, public resources are limited, and
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