Darryl W. Perry: Reforming the justice system by reforming plea bargains


Darryl W. Perry sought the Libertarian Party’s 2016 presidential nomination and presently serves as the vice-chair of the Libertarian Party of New Hampshire. He published the following article on FPP.cc on September 12th, 2016:

Over the last few years, there has been a lot of talk about the need to reform the criminal justice system, however there has been little action and the population in American prisons continues to grow. The most notable aspect of the criminal justice system that needs reformed are mandatory minimum sentences, which have a direct connection to the rise of prisoners in the United States. A rarely talked about, but much needed reform, is the practice of making plea deals with a suspect.

Bill Pursell explains, a prosecutor will often come up with “as many possible criminal counts to ‘stack’ against the defendant in order to strengthen the core case of the prosecution… the Supreme Court said the government may separately try and punish the defendant for two crimes if each crime contains an element that the other does not… a prosecutor can easily circumvent this law in order to lump, for example, drug offenses with conspiracy (some laws like this are broad and easily manipulated to fit many cases), gun use, money laundering, and a laundry list of other charges together.”

This is where the plea process comes into place. A prosecutor will offer the suspect a deal that usually includes dropping several of the charges in exchange for taking a guilty plea. These plea offerings also generally impose a lesser sentence than would be possible if the defendant went to trial. Pursell continues, “Adding more counts will increase the chances of a lengthy and very expensive legal battle, which many defendants cannot afford, and large number of counts can simply make a defendant appear guiltier. All of this pressure can be leveraged onto innocent defendants causing them to believe it is in their best interest to plea-bargain even if they are innocent rather than chance losing in open court.”

One reform floated about that seeks to eliminate this practice is to prohibit a guilty plea. This would then require each offense to be argued in court and a judge or jury to issue a ruling on each charge. On it’s face it seems logical; however this reform would require a court hearing for every parking ticket, speeding ticket, municipal violation, etc, and almost guarantee that no one received a speedy trial.

A better reform, would be to prohibit a judge from imposing a penalty that is more severe than the final penalty offered by the prosecution in exchange for a guilty plea. For example, Rich Paul was charged with four counts of distribution of cannabis and one charge of distributing a substance purported to be LSD. In all, Paul was facing 81 years in prison. However before his trial began, he was offered no jail time in exchange for a guilty plea, there was no mention of how many years of probation he would face. Herefused the plea and was sentenced to 1 year in county jail, 3 years of probation and 1 ½-3 years per offense to be suspended for 3 years.

It seems a bit hypocritical that the prosecution on the day before the trial began would believe that Mr. Paul, or someone else in his shoes, would not need to be incarcerated but after going to trial needs to be locked up. This practice of punishing people for going to trial needs to end. Though seeing the difficulty of eliminating mandatory minimum sentences, it may be a long time before people stop being punished for going to trial.

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