» Clients, Prosecutors » Inequality


Criminal defendants, especially ones who are in custody and hope to enter a plea, love comparing their cases with other criminal defendants’ cases. “My cellmate was facing the same charges and got a deal to probation. Why is my deal to prison time?” In most instances, they’re comparing apples to oranges. His cellmate didn’t have any priors and didn’t commit the offense while on probation.

Of course, that’s not always the case. The disparity in treatment may be real, and the two defendants may be similarly situated.

Differences could be caused by an ineffective defense attorney. The defendant may have a lazy public defender who sees no point in trying to get a better offer. He may have an appointed attorney who gets paid extra for trial and has no incentive to get a better plea. He may have hired a bargain basement private lawyer who considers it his job to make every client feel good about taking the first crappy plea the state throws their way.

The cause for disparity could also be the assigned prosecutor. We are so concerned about making sure people aren’t treated differently that we’ve created a system where everyone who chooses to go to trial gets royally screwed if they lose. We’ve made things equally bad for everybody in that situation. What we haven’t done, however, is eliminate plea-bargaining.

As I’ve discussed before, you have no right to a plea. I deal with some great prosecutors almost every day, but I also deal with some terrible prosecutors. The worst prosecutors make ridiculous offers. They don’t know the facts of the cases they’re prosecuting, and they don’t care. As long as prosecutors can offer plea bargains to lesser charges or dismiss counts, people are going to be treated differently. The assigned prosecutor can be the major factor in what happens to a criminal defendant.

Rigid plea-bargaining guidelines do nothing to promote equality. They just shift the initial burden to the defense attorney. The prosecutor will make the same offer he or she always makes, then it’s up to the defendant’s lawyer to try to fix it if it’s wrong. A defendant with a good lawyer is more likely to get a fair offer. A defendant with a terrible lawyer may have no chance. The buck still stops with some prosecutor who has discretion about the prison term or whether to offer the defendant probation.

I’ve had many clients charged with even the highest level felonies plead to misdemeanors with no jail. I’ve convinced many prosecutors to dismiss cases based on weak evidence. Sadly, I’ve also had clients charged with stupid low-level felonies based on minimal evidence grudgingly go to trial because the prosecutor wouldn’t make a reasonable offer.

The system doesn’t treat everyone equally. When the specific circumstances of a case, like the assigned prosecutor, cause a defendant to be treated differently from others similarly situated, it’s unfair. It’s also a reality we can’t do much to change.

When I was a kid, I always got the same response from my parents when I complained about something being unfair. “Life isn’t fair,” they would say. When people complained about his class, one of my high school teachers used to say in an unbelievably thick west-Kentucky accent, “there are three fairs in the world; the county fair, the state fair and the world’s fair. You ain’t at any of them.”

They’re probably right. The system isn’t going to be fair. Some people are lucky. We can try to treat everyone equally, but our system will never be perfect. Most of the time, our best efforts will only make things worse. We will only succeed in achieving equal unfairness for most.

The system is run by humans. Those humans have a job to do. Many of them have very specific ethical obligations. Some of them will take their jobs and ethical obligations more seriously than others. Because of that, some defendants will see the cases against them dismissed, while others will have to go to trial or take an unappealing plea bargain.

Unless we take discretion away from prosecutors entirely and remove their obligation to only pursue good faith claims, people are going to be treated differently. The only way to really make things equal is to remove the few remaining safeguards that prevent unfairness.

Do we really want that?

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