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July 31, 2012

Plea bargains, snitching and pursuit of criminal justice "accuracy"

9780814758977_DetailI am glad we have spent a lot of time talking about whether and when and how plea bargains might enhance or impede "accuracy" in the resolution of criminal charges.  This is because pleas and plea bargains are much more central to modern criminal justice outcomes (at least in the US) than are trials, as the Supreme Court recently highlighted in Lafler v. Cooper:  "[T]he reality [is] that criminal justice today is for the most part a system of pleas, not a system of trials.  Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas."  Lafler, slip. op. at p. 11.

Katie noted in a comment already that some (but not all) of the discussion and debate today turned, to some degree, on potentially different conceptions of "accuracy."  Would we would call "accurate" the outcome in the Casey Anthony case given that she was found guilty of lying to the police, though was acquitted of homicide charges?  Is a system "accurate" which gives LWOP to the Green River Killer for the undisputed rape and murder of at least 50 women and girls, while it executes Troy Davis for the highly disputed killing of one person?  Usefully, our debate today highlights that we could all be committed to prioritize "accuracy" in criminal trials, but then have heated debates about what that concept really means (and, similarly, we could all be committed to due process/privacy rights in police investigations, but then have heated debates about what that really means).

Because plea bargains are a huge part of modern criminal justice systems, and because informants often get sweet plea deals, I encourage everyone interested in this topic to check out some of the resources at Snitching.org, which provides this introduction:

Criminal informants are an influential part of the American criminal process.   Every year, the government makes thousands of deals with criminal offenders in exchange for information.  That information affects every aspect of the system, from investigations to arrests, prosecutions, and sentencing.  These deals also result in leniency or even freedom for thousands of informant-offenders.  Yet these important decisions are largely informal, unregulated, and secretive....

Criminal informant policies have costs as well as benefits.  On the one hand, informants can be powerful investigative tools against organized crime, gangs, corporate fraud, and corrupt political practices.  But many informants get away with serious crimes while they are cooperating with the goverment, while numerous innocent people have been convicted based on unreliable information from informants.  Sometimes vulnerable people are unfairly pressured into becoming informants, with devastating consequences for them and their families.  Finally, in some high-crime neighborhoods criminal snitching can be so pervasive that it affects the safety of innocent residents.  All too often, the public does not know the true extent of these costs.

For a great slice of information on this topic, you can read the short introduction to the book pictured in this post at this link.  The author of this book also gave a lecture on the topic of her book which can be watched here via YouTube.

Finally, I was only joking about the idea of allowing students to make "plea bargains" to determine their final grades.  However, if one really believes that broad use of plea bargaining really can and often will improve the accuracy of criminal justice outcomes, perhaps broad use of "grade bargaining" between students and profs should be allowed in order to improve the accuracy of grading outcomes.  And, to incorporate the reality of cooperators/snitches, consider if grading accuracy would be impoved if a professor made this offer: the first few students who genuinely convince the prof (in secret) that certain other students should get Cs will be sure to get As.  (Such a grading scheme would, in fact and form, replicate the reality if/when a prosecutor has to sort out how to charge and prosecute members of a drug ring or fraud conspiracy: the dealers or executives who are quickest to lay blame on others as the "really bad guys" are sure to get the best sentencing "grades" in the form of sweet plea deals.)

July 31, 2012 in Class reflections | Permalink


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Here is the article about the 60 Minutes piece about two attorneys, Dale Coventry and Jamie Kunz, who knew that their client, Andrew Wilson, had killed a McDonald's security guard in Chicago in 1982. Meanwhile, Alton Logan was in prison for 26 years for this crime. Wilson had confessed to his attorneys, but due to attorney-client privilege, Coventry and Kunz could not say anything, even though they knew an innocent man was paying for a crime he did not commit. Wilson and his attorneys then wrote out an affidavit where Wilson allowed his attorneys to reveal the information after his death. For those that may not know, attorney-client privilege extends after the death of a client. Alton was released from prison in early 2009 at the age of 54.

"26-Year Secret Kept Innocent Man In Prison" February 11, 2009.

Posted by: Iriny Faltas | Aug 2, 2012 8:48:48 AM

On the case that Iriny posted:

I think this relates a lot to what we're learning in our ethics class. They kind of bring up the ways to ethically break attorney-client privilege in the article, but I still wonder if they could have ethically disclosed. Obviously it's a hard place to be put in, but we learned that attorney-client privilege may be broken if there is a substantial risk of the client to commit a future crime that would cause substantial bodily harm or imminent death. My argument to defend them, had they broken attorney-client privilege, would have been that the client would commit the future crime of murder if the innocent man was convicted and sentenced to death, and possibly even if he was sentenced to life in prison. I understand that this argument can be torn down as well, since the client wasn't really actively committing a crime; instead he was just watching one happen. Perhaps the rules should be changed to include future crimes that include civil cases as well? If that was the case, the client could be seen as falsely imprisoning an innocent man if he knew that an innocent man was in prison for the act that the client himself had committed.

Either way, I think this case is a great showcase of two problems in our system:
1. The problems that may arise from attorney-client privilege (and hats off to the attorneys for at least convincing the client to allow them to tell after he died)
2. Wrongful convictions (and I have to wonder what evidence the jury used to convict an innocent man, and have 10 out of the 12 ready to sentence him to death)

Posted by: Katie | Aug 2, 2012 10:46:49 AM

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